S & K Electric, Inc.

442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD S & K Electric, Inc. and Local Union No. 716, Inter- national ' Brotherhood of Electrical Workers; AFL- CIO. Case 23-CA-5819 October 15, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On May 26, 1976, Administrative Law Judge Rob- ert E. Mullin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings,' findings' 2 and conclusions of the-Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders-that the Respondent, S & K Electric, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F.2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Since we are adopting the Administrative Law Judge's finding and con- clusions on the merits, we find it unnecessary to pass on his finding that summary judgment should be granted. DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Administrative Law Judge: This case was heard on March 3 and 4, 1976, in Houston, Texas, pursuant to charges duly filed and served,' and a com- i The original charge was filed on October 24, 1975, an amended charge plaint issued' on December 12, 1975. The complaint, as amended at the opening of the hearing; presents questions as to whether Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In its answer Respondent conceded certain facts with respect to its business operations, but it denied all allegations that it had committed any unfair labor practices. At the hearing, the General "Counsel was represented by counsel. The Respondent was represented by its president and its secretary-treasurer? All parties were given full op- portunity to examine and cross-examine witnesses, and to file briefs. The parties waived oral argument. On April 2, 1976, both the General Counsel and Respondent submitted briefs. Upon the entire record in the case, including the briefs of counsel and the parties, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The-Respondent, a Texas corporation, with its principal office and place of business at Houston, Texas, is engaged in 'the business of electrical construction, repair, and main- tenance. During the 12 months preceding issuance of "the complaint, a representative period, Respondent sold goods and performed services for customers within that State in an amount in excess of $50,000, each of which customers annually had direct interstate sales and purchases of goods and products which exceeded $50,000.annually. During the same period, Respondent purchased, goods and materials valued in excess of $50,000 which originated, outside the State of Texas and which were received by Respondent within that State. Upon the foregoing facts, Respondent concedes and it is now found that S & K Electric, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act: II. THE LABOR ORGANIZATION INVOLVED Local Union No. 716, International Brotherhood of Electrical Workers, AFL-CIO, herein Union or Local 716, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events Respondent is a small electrical contractor in Houston, with approximately 12 employees. All of the stock in Re- spondent corporation is owned by Samuel Keller, presi- dent, Nancy Keller, his wife, who is also secretary-treasur- was filed on October 29, 1975, and a second amended charge was filed on December 8, 1975 Z At the outset of the hearing, President Keller was advised that the Re- spondent could be represented by counsel. He stated, however, that the decision had been made that he and Mrs Keller would represent the Re- spondent Cf. Local Union 742, United Brotherhood of Carpenters and Join- ers of America (J L Simmons Co) v N L R B, 377 F 2d 929, 930 (C A D C . 1967), cert denied 389 U S. 843 (1967) 226 NLRB No. 76 S & K ELECTRIC, INC. er, and one of their children. Early in October 1975,3 the Union began its organizational activity. In a consent elec- tion held by the Board on October 24, all 10 of the valid votes counted were for the Union.4 In a letter to Respondent, `dated October 7, the Union claimed to be the majority representative and requested recognition as the employee bargaining agent. In the fol- lowing week, six of the employees were given very few work assignments. The General Counsel contends that dur- ing that week they were discriminatorily suspended. Subse- quent to the union victory in-the election, Respondent dis- charged six of its employees: The General Counsel contends that the terminations were discriminatory. These allegations are denied by Respondent, who claims the em- ployees in question were either laid off for lack of work or discharged for cause. The Motion for Summary Judgment Cousel for the General Counsel presented 10 witnesses in support of the allegations in the complaint. They were examined and cross-examined at length. Almost all of this testimony related to the actions and conduct of President Samuel Keller during the period in question. Respondent called five witnesses to the-stand. Only two, Nancy S. Kel- ler and Bill Howard, testified as to any issue involved in the case and then only briefly.' Nothwithstanding the fact that President Samuel Keller was intimately involved in the events out of which all of the allegations in the complaint arose, he did not take the stand. When the General Coun- sel sought to call him as a witness, he refused. He also objected to the admission in evidence of his sworn affida- vits given in November 1975. In their brief, counsel for the General Counsel have moved for summary judgment on the ground that they pre- sented a prima facie case, that the burden of going forward thereafter shifted to Respondent (National Automobile and Casualty Insurance Co., 199 NLRB 91, 92 (1972) ), that Samuel Keller's refusal to testify leaves the testimony of the General Counsel's witnesses uncontradicted and unde- nied, and that, for this reason summary judgment should be granted. There is merit to this-position and the General Counsel's motion is now granted. Ohn Industries, Inc., Win- chester Repeating Arms Company Division, 86 NLRB 203, 218-219 (1949); Rules and Regulations of the Board, Series 8, as amended, Sec. 102.44(c). On the other hand, since the Board may not agree with the aforesaid ruling, the following findings are now made to expedite the Board's consideration of this case should it choose to decide this matter on the merits. 3 All dates hereinafter are for the year 1975 unless otherwise noted. 4 The Employer challenged the b4llots of Shirley Johnson and David May on the ground that both had been discharged and were no longer eligible to vote. The General Counsel contends in the present case that at that time these two individuals had been discriminatorily suspended by Respondent 5 The other three witnesses were William G Mohr, an employee, and union representatives James P. Douglas and Harry L Bokemeyer Respon- dent sought to question these witnesses as to events which occurred subse- quent to the period involved in the complaint in the case at bar When objections to this line of inquiry, voiced by the General Counsel, were sus- tained, Respondent asked no further questions of them 443 B. The Alleged Violations of Section 8(a)(1) and (3) of the Act; Findings and Conclusions in Connection Therewith 1. The status of Bill Howard The General Counsel contends that Howard was a su- pervisor within the meaning of the Act at all times material to this case. Samuel Keller stated at the hearing that How- ard was a "lead journeyman" and a "foreman," but not a supervisor within the meaning of the Act. The record is replete with testimony which establishes that, in June, President Keller told the employees that he had promoted Howard to the status of a supervisor and that thereafter the latter was so regarded by the employees. There was credible undenied testimony that, subsequent thereto, Howard gave assignments and orders daily, that he told employees when there was no work, that he directed the electricians on their jobs, that he criticized their work, and that he did not normally use tools or work with his hands. He had a desk in the shop lunchroom which the employees commonly referred to as his "office." At the end of each month he conducted meetings in this room which all of the electricians had to attend. The employees report- ed problems to him, and he himself testified that during the month of October he spent most of his time "traveling be- tween jobs and shooting trouble calls." Howard denied being on a salary, but employee Jack E. Young, Jr., credi- bly testified that during the summer of 1975 Howard told him that he was on a salary. In any event, Howard testified that he was paid $6.15 an hour. At the time, insofar as the record indicates, this was approximately $1 an hour more than the highest paid journeyman electrician was receiving. There was also evidence that Howard had the power to discharge and that he exercised it. Thus, employee Berry testified that, on one occasion during the summer, Howard became incensed at something which had occurred on a job where both Berry and a colleague were working, where- upon Howard told the two employees they were discharged and took them back to the shop where they were given their final paychecks. Only after Berry appealed to Presi- dent Keller was the discharge order set aside and the em- ployees reinstated. Berry's testimony in this connection was credible and it was not contradicted by Howard when the latter was on the stand. Finally, Business Agent James Douglas testified that, during the month of October when he was at Respondent's premises, President Keller referred to Howard as his "shop foreman" and his "shop superin- tendent." In view of the foregoing findings, all of which are based on credible and uncontradicted testimony, it is now found that at all times material herein ^ Bill Howard was a supervisor within the meaning of the Act. 2. The outset of the Union's campaign and the Employer's response On October 6, James P. Douglas, assistant business agent and organizer for Local 716, met with about nine of Respondent's employees at the union hall. These were Tom Calvin, Michael Green, James Holcomb, Randy Irwin, Shirley Johnson, David May, Michael Mills, Michael Sholt, and Jack E. Young, Jr. All of those present signed 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorization cards. The following day, Douglas wrote' a letter to Respondent. wherein he requested that Respon- dent recognize and bargain with Local 716. On the afternoon of October 9, when the employees came back to the shop from their various jobs, President Keller 6 approached several of them, including David May, and demanded to know "who's been talking to the Union." All of those present gave him a noncommital response and left for their homes. On October 8, the Union filed a representation petition (Case 23-RC-4300) wherein it sought to represent a unit made up of the electricians at Respondent's shop. On Oc- tober 10, as the employees returned from work, Keller or- dered them all to attend a meeting in the lunchroom during which he expanded at length on his views as to what would happen if the Union won such an election. Employee John- son testified that at the outset of the meeting "[Keller] wanted to know who it was who wanted the union in" and employee Young testified that Keller questioned all of them as to how they were going to vote. When most of the employees hedged in answering, Keller wanted to know if they were for the Union, or were they for "S & K all the way?" as he put it. Keller accosted employee Irwin, one of the first to arrive, showed him the Union's request for rec- ognition, and asked -him what he knew about it. He then advised "Irwin not to sign an authorization card, and told him that if the Union won the election Irwin would lose his seniority and would be delayed 2 years in securing his jour- neyman's license.' Employee May testified that Keller told them that seniority counted for everything in a union shop and that, if the Union won, most of them would be out of work. According to May, Keller stated that under a union contract "anybody down . . . at the union hall who want- ed our job could simply ask for it. And they would have it and we would be put out on the street." May testified that at this point Superintendent Howard joined in the conver- sation and stated that under a union contract, May, who did not have much experience, "would be considered a temporary employee and, therefore, very unstable in [his] job." Employee Johnson, an apprentice electrician who was attending electrician's training at a school conducted by the Associated Independent Electrical Contractors of America (hereinafter AIECA), testified that Keller told her that the Union would not permit her to both work and go to school, and that, union members would come in and "take our jobs away from us. And since we didn't have much experience, we'd lose our jobs." According to em- ployee May, before concluding the meeting, Keller told them that if the Union came in "he would close his doors. He would shut his doors before he would go union .. . The testimony of the employee witnesses set forth above was credible, uncontradicted, and undenied. On Saturday, October 11, Keller telephoned Douglas and asked that a union representative meet with the em- ployees at S & K. Douglas agreed to be at the shop the following morning. Douglas and an assistant, Donald E. McKnight, arrived 6 Hereinafter, unless specifically noted otherwise, when the name Keller appears it will denote President Samuel Keller Irwin was then an apprentice at the S & K headquarters at 7. a.m., October 13. Keller took them into the lunchroom. There, Douglas spoke to them briefly and-then solicited questions. Employee John- son asked Douglas whether it was true, as Keller had told them the previous week, that if the Union secured a con- tract, the employees with the least' seniority would lose their jobs. Douglas told her that this was not true and that the advent of the Union would not jeopardize those with the least experience. Keller thereupon became involved in a heated argument with Douglas on the matter. According to employee Calvin, Keller told the employees that,-where- as they were then regularly working 40 hours a week, "if we decided to go Union . . . we would probably find our- selves . . . on the bench ...." and Mrs. Keller, who,was also present, reiterated that under the existing arrange- ments the employees had been "working 40 hours .. . since at least the first of the year." Keller then began ques- tioning Douglas as to the Union's position on layoff proce- dures, whereupon Douglas asked whether S & K intended to lay off any employees. Keller answered that he intended to lay off the whole shop and added that none of his em- ployees were "worth a damn." 8 Then Keller referred to employees Tom Calvin and Carl Morgan as being the only Journeymen he had and Mrs. Keller added the name of employee Jack Young, whom she described as "one of the best men in the shop." 9 At this point in the meeting Keller manifested his indig- nation with the employees in general and declared that from that day forward they would be losing all their bene- fits. When Douglas inquired as to what he meant, Keller told him and the assembled employees that he was refer- ring to their vacation privileges, free uniforms, insurance, and everything else. Keller indicated his vexation with Johnson's questions about the problems in the shop and declared to her "Little girl, from now on, you're losing all benefits, and I'm not paying for your school." 10 Douglas then asked whether Keller would consider signing a con- tract with Local 716 and the latter replied in the negative. With that, the business agent announced that there was no use discussing the issues any further at that time and left. 3. The suspensions All of the employees proceeded to their assigned jobs that day and completed them. The following day, however, when several of them reported at the usual time, Superin- tendent Howard told them there was no work available. Employee David May was not assigned any jobs that week, although he had been working regularly on a project at the Pizza Inn on Bellaire Boulevard which had not been com- pleted. Employee Michael W. Mills worked on October 13, but when he reported to the shop the next morning Super- intendent Howard told him there was no work available. 8 The quotation is from Douglas' credible, undenied testimony. 9 This finding is based on the credible; undenied testimony of James Douglas, Jack Young, and Michael Shott. Although Mrs. Keller was on the stand and was questioned about this meeting, she never denied having made the laudatory comments about Young which the above-named witnesses attributed to her. 1° This last was a reference to an arrangement with Johnson whereby Keller had promsed that S & K would pay two-thirds of the $ I50 tuition fee at the AIECA school for apprentice electricians which she was attending S & K ELECTRIC, INC. Although he reported each, morning for the rest of the week, he received no further assignments from Howard. He credibly testified that he talked with the construction superintendents at the jobs where he had been engaged up to that time and found that work was still to be done at those sites. Employee Michael L. Shott had been working on the wiring of San Juan Pools for some while prior to the week of October 13. Shott finished out the day after the meeting on the latter date, but on reporting each day for the rest of -the week Howard told him on each occasion that there was no work available. Notwithstanding Howard's comments, Shott credibly testified that each morning he saw several work orders on his clipboard and at the same time there were invoices to wire additional San Juan Pools stacked on Howard's desk. Employee Shirley Johnson worked for the balance of the day after the meeting on October 13. She was a new em- ployee who had been hired at a rate of only $2.25 an hour. On October 3, Keller had promised that a raise would be on her next check. When Johnson returned to the shop at the end,of the shift on October 13, she was met by an irate Keller who thrust her weekly paycheck at her with the comment "We decided not to give you your raise." When Johnson inquired as to the reason, he told her "Because of your union." It For the rest of the week, notwithstanding the fact that she reported to the shop each morning, she was not sent out on any work assignments. Employee Jack Young was a journeyman electrician and one of the most senior employees on the crew. After the meeting on Octo- ber 13, Young worked the rest of the day, but he was given no further work for the balance of that week. Young credi- bly testified that on October 15, after being told by How- ard that there was no work for him, he and Johnson, who was his helper, went to the school where they had been performing installation work and found that the customer was complaining because S & K had sent no one out to complete the job. During the week of October 13 and at the same time that the Respondent was not sending the above-named employ- ees to work on projects where previously they had been assigned regularly, Keller and Shop Superintendent How- ard found it necessary to go to work themselves at several of the jobsites. Thus, employee Pat Berry, credibly testified that, during that week, he served as Keller's helper on vari- ous assignments. According to Berry, Keller told him that S & K was so far behind on the work projects that he'had to go out on the jobs himself. Berry testified that on one of those days Keller asked him "Who started all this business about the Union?" According to Berry, he informed Keller that "[employee] David May had, approached me back in June or July." Employee Calvin credibly testified that on October 17 he discussed the prospect of a raise and the use of a different truck with Superintendent Howard. The lat- ter referred him to Keller. On returning-to the shop that afternoon Calvin discussed the likelihood of a wage in- crease with Respondent's president. The latter told him that, notwithstanding his earlier promise, he could do noth- ing for Calvin then because of the pending representation 11 The quotations in this and the preceding sentence are from the credible, undenied testimony of Johnson 445 election. At the same time, Keller assured Calvin that he could have his choice of trucks to use in his work. Keller then questioned Calvin as to whether he had been contact- ed by the Union. When the employee answered in the affir- mative, Keller became very intemperate and declared that he felt that "he'd been sold out by his employees." Then he turned on Calvin and told him that he (Keller) had con- tacted the AIECA and given that organization the name and social security number of every employee at S & K so that the latter organization could blacklist everyone of the S & K employees. According to Calvin, Keller then told him, that "You'll never work for another [open] shop here [in Houston]." Calvin testified that, in concluding their conversation, Keller told him that he had established his business and kept it operating with what he described as "rat" or nonunion employees; and that he would continue to do so, On October 17, a Friday, the next regular payday at the shop, all of Respondent's employees received layoff notices along with their paychecks. Then, on October 18, Respon- dent notified all of the employees except David May to return to work the following Monday morning. Conclusions With Respect to the Alleged Discriminatory Suspensions The General Counsel alleged that on October 10, and during the week thereafter, Respondent discriminatorily suspended Johnson, May, Mills, Shott, and Young.12 Re- spondent denied this allegation and at the hearing Mrs. Keller asserted that lack of work was the cause of these employees being off the, job. Nevertheless, at the meeting on October 13, both Keller and his wife boasted of the steady employment which the employees had had during the preceding year. At that time, assignments had already been made for the day and the employees completed the shift. For the balance of-the week, however, the Kellers professed that no work was available. This defense was belied by the credible and undemed testimony that both President Keller and Superintendent Howard had to go out on several jobs after October 13 and work with their tools, and the further testimony, set forth above, that the projects on which May, Mills, Johnson, Shott, and Young had been working were still unfinished at the end of that week. On the morning of October 13, President Keller displayed ex- treme bitterness with the prounion sentiment he discovered among his employees and he threatened them with loss of all their fringe benefits and other penalties if the Union won recognition. That afternoon, when employee Johnson returned to the shop and inquired as to the reason her latest check did not reflect a promised raise,' Keller told her that the increase was being denied "Because of your union." Respondent offered no satisfactory explanation for the sudden suspension in the work opportunities for the above-named employees during the rest of that week. In 12 The General Counsel also alleged that employee Michael C Green was discriminatorily suspended during this same week However, neither Green nor any other witness gave any testimony that would sustain this allegation. Employee Tom Calvin testified that Green was workmg^ during the week of October 13. Consequently, insofar as par 8 of the- complaint refers to Green, it will be dismissed. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD view of the facts set forth above, it is now found that Re- spondent intentionally and discriminatorily withdrew em- ployment from Johnson, May, Mills, Shott, and Young be- cause it knew, or suspected, them to be union supporters, and that it did so for the purpose of intimidating and coercing them in the exercise of their rights under the Act. In so doing, Respondent violated Section 8(a)(3) and-(I). 4. The representation election Business Agent Douglas and Norman White, an assis- tant business agent, arrived at Respondent's shop at 7 a.m. on October 24, where they found-all the employees present and ready to cast their ballots. Keller immediately engaged the union representatives in an argument with the declara- tion that they were trespassing on his property. Keller sought, unsuccessfully, to have the business agents exclud- ed from the area. At this point Gail Hitchcock, the Board agent who was to conduct the election, arrived and set up the voting booth. Douglas announced that David May would act for the Union as its observer. Keller objected on the ground that May had been fired and was no longer an employee. He also protested the presence of Shirley John- son on the same ground, and asserted that neither May nor Johnson should be permitted to vote. The Board agent an- nounced that both could vote challenged ballots and the election was then conducted. As found earlier, of the 12 votes cast, 10 valid votes were for the Union and the bal- lots of May and Johnson were impounded as challenges. After the election, Douglas asked Keller for a date on which negotiations for a contract could begin. Keller de- clined to answer and told him that any further communica- tions would have to be handled through Respondent's at- torney. Keller then announced that there would be no work for anyone that day and that no trucks would be going out. Subsequent to this announcement, Keller or- dered everyone off his property, followed the employees out to the parking lot, and stayed there until they had left the premises. 5. Aftermath of the election a. The restrictive work rules In compliance with Keller's orders, the employees re- mained away from the S & K shop on October 24 until late in the afternoon when they returned at the regular quitting time, to secure their paychecks. Superintendent Howard and Mrs. Keller were waiting for them. After the employ- ees received their checks, Mrs. Keller handed each of them a copy of what was captioned "Rules of Conduct of Em- ployees of S & K Electric, Inc." At the hearing, Mrs. Keller and Howard testified that these were work rules which had been in effect for several years. However, employee Berry credibly testified that the first three rules on the list were completely new to him and to the other employees present when Mrs. Keller distributed the copies on October 24. Thus, the last part of rule 1 forbade employees'from leav- mg the job before 4:15 p.m. Berry credibly testified that until that date there was no specified time that an employ- ee had to leave his job, as long as he returned to the shop by 4:30. Rule 2 provided that the lunchbreak would be from II.30 to 12. According to Berry, until then there had been no specified time for a lunchbreak and the time for it was left to the discretion of the journeyman on the job. Rule 3 required that the employees would have to report for work in time to get the trucks out by 8 a.m. Berry testified that, at least from the date when he had been hired in June, he and the other employees had been reporting for work at 7:30. Mrs. Keller also reiterated a recently promul- gated rule banning the parking of motorcycles on the premises and told the employees that motorcycles would no longer be allowed inside the shop and that cars could not be parked in front of the building. Earlier that week the employees had been told that when on the job they could not use the company trucks to go to a restaurant for lunch. At this meeting, Mrs. Keller told the employees that they could use their trucks'for that purpose. The following Monday, however, Superintendent Howard told several of the employees that 'they could not use their trucks for that purpose and that they were not to leave the job during the lunch period .'Employee Mills credibly testi- fied that on that day Howard told him and his helper that if they violated this rule they would be terminated. Mrs. Keller concluded the meeting on the afternoon of October 24 with thedeclaration that if the employees had any questions they would have to take them up with their union steward. b. The discharges (1) David May After the layoff of October 17, all of the employees were recalled to work on the next regular workday except David May. Shortly before the layoff, Keller had heard from employee Berry that May had been the first member of the work force to approach Berry about the Union and that he had done so the preceding summer. On October 20, May returned to the shop and announced to Keller that he was ready for work. Keller told him that he had been laid off and that there was no work for him. May testified that, as he turned and was about to leave the premises, Keller shouted after him "Don't come back." May thereupon contacted Business Agent Douglas. The latter immediately sent Respondent a telegram protesting May's termination and stating that May would be the union observer at the forthcoming election, then scheduled for October 24, the following Friday. On the afternoon of October 21, Superin- tendent Howard sent a message to May informing him that he could return to work the next day. On the morning of October 22, May telephoned Respondent's office and told the secretary that he had a temporary job at the moment so that he could not return to S & K for a couple of days, but that he would report on October 24. As found above, on the latter date, when May appeared and endeavored to act as the union observer, Keller protested that May was ineli- gible because he had been discharged. Thereafter, May was among the , other employees who were ordered off the premises immediately after Keller learned that the Union had won a unanimous victory. Subsequent to the election he was never recalled to work. Other than a general denial S & K ELECTRIC, INC. 447 of the allegation in the complaint that May had been dis- criminatorily terminated, Respondent offered no explana- tion for his dismissal. On the basis of the findings set forth above, particularly the extreme union animus displayed by Keller from the time he learned that the Union had won a following among his employees, the knowledge which Kel- ler had gleaned from employee Berry in mid-October that May had been one of the early union advocates, and the lack of any explanation for his termination, it is now found that May was discriminatorily discharged and that by this action Respondent violated Section 8(a)(3) and (1).13 (2) Shirley Ann Johnson Johnson was hired by Respondent as an apprentice elec- trician on August 26, at $2.25 an hour. At the time she had just enrolled in a training course for apprentices which was sponsored by AIECA, the tuition for which was $150. She asked Keller if he would pay any part of that amount and he assured her that S & K would pay two-thirds of the bill, or $100. Employee Tom Calvin, who -came to work for Respondent on September 29, credibly testified that at the time he was' hired, Keller told him that he had a young woman working for him and that he "was very pleased with her.... That she had done so well that he was pay- ing for her schooling." Johnson was the only woman work- ing as an electrician for Respondent. As has already been found, at the meeting on October 13, after a question from Johnson precipitated a conflict between Keller and Business Agent Douglas, Keller turned on Johnson and told her "Little girl, from now on, you're losing all benefits, and I'm not paying for your school." At the end of that workday, Keller told Johnson that she would, not get a promised raise and that he was taking this action-"Because of your union." As has been found earlier, during the rest of that week Johnson, along with several other employees, was discriminatorily denied any work as- signments. On October 17, when she came in to get her paycheck, Keller told her that she owed him for the tuition which he had advanced on her schooling and that he want- ed the money immediately. That same day Johnson was given a layoff notice. Johnson credibly testified that the following events took place during the period from October 20 to October 27: About 6:45 a.m. on October 20, she received a telephone call from Keller who told her that, notwithstanding- the layoff notice she had received the preceding Friday, she was due at work immediately. It was about a 45-minute drive from her home to Respondent's shop. In order to reach the shop most expeditiously, she left her home with- out having breakfast or preparing her lunch. On arriving at the shop Howard ordered her to accompany him on the truck to a jobsite. When they arrived there he assigned her 13 Superintendent Howard testified on direct examination that in Septem- ber he had asked Keller to take May off a job and replace him with another helper because of dissatisfaction with his work On cross-examination, how- ever, Howard acknowledged that this incident had occurred during the first week of May's employment This, of course, would have been early in June. There was nothing in the record to indicate that he had been an unsatisfac- tory employee at any time during the succeeding 5 months that he worked for Respondent to dig a cable trench. After she completed it, he told her the ditch had been dug in the wrong place and that the work had to be redone. in another location. After she had com- plied with this order, Howard informed her that another mistake had been made and that she would have to redig the trench in the original position. 14 The weather was ex- tremely warm, with the temperature in the 90's, and-How- ard had no water supply at the site. That,evemng Johnson became ill from what she felt was either heat exhaustion or sunstroke and she did not report for work the next morn- ing. The following day her husband telephoned the shop to report that she would be unable to work because of illness. She voted in the election on October 24, and, as found above, Keller challenged her ballot on the ground that she was no longer an employee. When Johnson reported for work on the following Mon- day, Keller told her that she would have to produce a doctor's excuse for her absence. When she protested that this had not been the rule previously -and that she knew that, on an earlier occasion, employee Mills had not need- ed a medical statement after being out sick, Keller told her "Well, you're different. You need one." Then, with refer- ence to her claim that earlier practice did not require a doctor's statement to document an absence, Keller com- mented that "That was before." (Emphasis supplied.) He did not elaborate as to the full significance of this observa- tion. About noon that day, Keller came to the jobsite and ordered- Johnson to accompany him back to the shop. When she arrived there, he told her that she was fired and to get off his property. Before leaving, she asked him if he thought that she was the one that started the union cam- paign among his employees. Keller's response was "You are darn right. I got your number, lady. You are the one." Johnson commented that he was wrong, that, in fact, she was one of the last to loin. With that she turned and left. Other than to deny that Johnson had been discriminato- rily dismissed, Respondent offered no evidence to contra- dict the foregoing findings. On these facts it is now found that Johnson was terminated because of her union activi- ties and in violation of Section 8(a)(3) and (1) of the Act. It is further found that Respondent also discriminated against her in violation of the same provisions of the Act, when Keller refused her the promised raise on October 13, "because of [her] union," and when he rescinded his origi- nal promise to pay $100 toward the cost of her tuition at the AIECA school for apprentices. (3) Tom Calvin Keller hired Calvin on September 29 as a journeyman electrician at the rate of $5 an hour with the promise of a raise in the near future if he proved satisfactory. He had 22 years' experience as an electrician and had worked in- Flor- ida immediately before coming to Houston and applying for work at Respondent's shop. As a result, he did not have a journeyman's license from the City of Houston at the time he went to work for Respondent. Calvin credibly testi- fied that, at the time he, was hired, Keller told him that he 14 Employee Mills testified that that afternoon when he and Howard were looking over the site, Howard made the derisive comment that "Shirley [Johnson] would know how to dig a ditch by the end of the day " 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would secure a Houston license for him and that, in the meantime, Calvin could work on jobs located outside the city where a Houston license was not needed. On the first workday after the election, when Calvin re- ported to the shop, Superintendent Howard told him that since he did not have a journeyman's license he would only be allowed to work' as an apprentice at $3.50 an hour. Cal- vin then departed for the Inspection Division of the Hous- ton Department of Public Works. He found the office closed that day because of a city election. However, he returned the following morning, paid the license fee, and secured a receipt indicating that he had done so. -He then went back to the S & K shop where Keller told him that he could come to work the next day. The following morning, October 29, Calvin reported to work and was getting ready to load his truck when Howard announced that Keller wanted to meet with all The emloyees. When the crews gathered in the lunchroom, Mrs. Keller reviewed the new rules of conduct again. In connection with a rule on the use of equipment, Calvin complained that there was a ladder on his truck that was unsafe and which he would not allow his helpers to use. Keller broke into the conversation to state that if Calvin "didn't like the way he operated his business, that [Calvin] was fired, to get out ...." Employ- ee Pat Berry who was present at this meeting testified cred- ibly, and without contradiction, as to this incident that Keller told Calvin "I trusted you, Tom. You said you were going to help me out when this deal was over. If I needed men, you were going to get them, bring them from'Florida, if'I had to have outside help. You'told me you were going to vote nonunion and that you were S & K all the way. I can't even trust you :... According to Berry, Calvin then said something to Keller and at that point "Sam [Kel- ler] flared up . . . and told Tom he was fired." Other than a general denial in the answer that any employee had been discriminatorily terminated, Respondent offered nothing to rebut the General Counsel's allegation that Calvin was discharged in violation of the Act. On the foregoing find- ings, it is now found that Keller -dismissed this employee out of pique and anger when he concluded that Calvin was identified with the Union. In so doing, Respondent violat- ed Section 8(a)(3) and (1) of the Act. (4) Mills, Shott, and Young Michael W. Mills was a journeyman electrician with al- most 6 years' experience. He was employed by Respondent in mid-June at the rate of $5.50 an hour. He signed an authorization card along with the rest of the employees and voted in the election on October 24. The day before the election Superintendent Howard asked him whether he had decided how he was going to vote. Mills testified that he told Howard that he was not going to vote "because Sam [Keller] didn't care about us, and why should we care about him." Mills returned to work on the Monday after the election. The following day he was off because of illness. On Wed- nesday, October 29, when he reported for work, Howard sent him in to Keller's office- where the latter told him he was being discharged because he "messed up this job at Valco," the latter being a- project on which Mills had worked briefly along with several other employees. When on the stand, Superintendent, Howard referred to the Valco project only casually. According to Howard, due to faulty wiring on that job, an employee of the building owner had received an electrical shock. Significantly, in his testimony, he did not attribute the accident to Mills' work. Employee Calvin testified that the day before the accident in question he had been on the scene and had found that a crew working under Howard's immediate supervision had made a mistake when installing the main distribution pan- el. Calvin credibly testified that he called this to the atten- tion of Keller, and that the latter agreed that Howard had made a mistake. According to Calvin, Keller told him that, notwithstanding this discovery, in the interests of expedit- ing the Company's progress on the contract, the matter should be ignored. The next day a maintenance man re- ceived an electrical shock when installing an air-condition- ing unit. Employee Berry credibly testified that after this accident he and Tom Stastny,-one of the journeymen, went to the scene and corrected the mistake which had been made in the initial installation. Calvin's testimony was credible and was corroborated in substantial measure by Berry. Obviously, Howard's testimony did not support the charge that Mills had "messed up the Valco fob." And, of course, Keller, who originally made this allegation, did not testify at all. i Michael L. Shott was first employed in mid-June 1975 as an apprentice electrician at $4.50 an hour. In September he received his journeyman's license and thereafter Keller gave him a 25-cent-an-hour increase. He signed an authori- zation card on October 6 and voted in the election. On the Monday after the election- Shott reported to work and was assigned a job. He took the truck that had been designated for his use and proceeded to the site. Almost immediately he started having transmission trouble and had difficulty shifting gears. Shott thereupon returned, to the shop and reported to Howard on the problem he^was having' With the truck. The shop superintendent then' told Shott that he could work with him for the balance of the day and the'two of them left for 'the'jobsite. Less than' 2 hours later Keller telephoned the job and ordered that Shott report to his office. When the employee did so, Keller asked him if he planned to pay for the repair ofthe truck. When Shott answered in the negative, Keller told him he was fired." The employee left the premises and was never recalled by Respondent. At the hearing 'Respondent offered no evi- dence as to the incident which preceded Shott's dismissal and it made no effort to establish that the employee'was responsible for any mechanical breakdown of the truck in question. Jack E. Young, Jr.,' was a journeyman electrician who had been working for Respondent about, 18 months at the time of his termination. He had started at $3.75 an hour. In October 1975, as a result of successive wage increases, he 15 Shott credibly testified that once before, during ,the preceding August, the truck he was driving broke down and Keller told him that he was fired unless he paid to have it repaired. The next day, however, when Shott re- ported for work, Keller told him not to worry, and that "he was sorry that he blew up " S & K ELECTRIC, INC. was receiving $5.25 an hour. Along with the rest of the employees in the shop he signed an authorization card. The day after the meeting on October 13, during which Mrs. Keller referred to him as "one of the best men in the shop," he was discriminatorily suspended, as found earlier and did not work the rest of the week. The next week and immedi- ately before the election, Young worked several days. However, on October 22, Keller called him into his office where he accused Young of leaving his jobsite early, of speeding while driving his truck, and of doing unsatisfac- tory work. Young denied all of these charges. It was the first occasion in his employment with Respondent that Keller had ever complained about Young's performance. On the morning of October 27, Young was working by himself at a jobsite where several other employees, includ- ing Shirley Johnson, were also engaged. During the middle of the morning Young telephoned Keller to report that his ladder and drill were defective and unusable. About 1:30 p.m. Keller arrived at the site, ordered Johnson back to the shop, and told Young that if he could not do any better that he, too, should return. After Young arrived at the shop and unloaded his tools, Keller told him that he disliked Young's "attitude" and threatened to knock him against the wall. At that point, Young left the premises and did not return.l6 At the hearing, Superintendent Howard testified that subsequent to Young's departure the truck assigned to him had to be overhauled because syrup had been poured in the motor oil. When called in rebuttal, Young credibly tes- tified that he had never tampered with the truck in ques- tion. As found above, Respondent' s answer denied the Gener- al Counsel's allegation that Mills, Shott, and Young had been discriminatorily discharged. At the hearing, Mrs. Kel- ler testified that customers had complained about some of their work, and Howard testified about lack of work and various other difficulties in the shop during the period in question. However, neither of them offered specific testi- mony as to any shortcomings on the part of the three above-named employees. President Keller, who, during his cross-examination of these employees, attributed their ter- minations to unsatisfactory work, refused to take the stand and would not testify under oath. The burden of proving its affirmative defense was on Respondent. Cashway Lumber, Inc., 196 NLRB 1135, 1137 (1972); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) v. N.L.R.B., 459 F.2d 1329 (C.A.D,C., 1972). This, it utterly failed to do. Consequently, on the findings set forth above, it is now found that, Mills, Shott, and Young had had very satisfactory employment records and that Young, in partic- ular, was considered by Respondent as one of its best elec- tricians. It is evident on the record here that their sudden decline in Respondent's esteem occurred when Keller con- cluded that they were interested in the Union. After the election on October 24, when Keller realized that all of them had helped to give Local 712 a unanimous victory, he 16 It is now found that Keller's conduct with respect to Young constituted a constructive discharge of the employee Mallory Capacitor Company, A Division of P. R Mallory & Co, Inc, 169 NLRB 42, 43-44 (1968) 449 determined to rid the shop of the union adherents. It is now found that Respondent's asserted reasons for their dis- charges were pretextual and that the real motive for the termination of these three employees was their identifica- tion with the Union. In taking this action, Respondent vio- lated Section 8(a)(3) and (1). C. The Independent Violations of Section 8(a)(1) On the foregoing facts, it is found that Respondent en- gaged in violations of Section 8(a)(1) of the Act by the following actions and conduct of President Keller: ( 1) His questioning of employee May on October ,9 as to "who's been talking to the Union." (2) On October 10: his ques- tioning of employee Irwin as towhat the latter knew about the correspondence Respondent had received from the Union; his questioning of other employees as to "who it was that wanted the union in?" and his further questioning of the employees as to how they were going to vote in the election; his statement to employee Irwin that Irwin should not sign an authorization card, and that if the Union won the election Irwin would lose his seniority and be delayed 2 years in securing a journeyman's license; his statement that, under a union contract seniority counted for ev- erything and that, if the Union won, most of them would be out of work; his statement that under a union contract "anybody down ... at the union hall who wanted our job could simply ask for it . . . and we would be put out on the street"; his statement to employee Johnson that the Union would not permit her to both work and go to school and his statement to employee May that if the Union came in "he would shut his doors before he would go union." (3) On October 13: His statement to the employees that where- as they had been working 40 hours a week "if the shop decided to go Union . . . we would probably find our- selves sitting ... on the bench...... ; his statement to employee Johnson that he was, cutting off all her benefits and would not pay her tuition at the AIECA school; his declaration to the rest of the employees that he was, cutting off all their benefits; and his statement to employee John- son later that day that she was not being given a raise "because of your union." (4) During the week of October 13: His questioning of employee, Berry as to "who started all this business about the Union?"; and his statement to employee Calvin that "he'd been sold out by his employ- ees" and that he had turned over to the IAIECA the name and social security number of every employee at S & K so that all of them could be "blacklisted" and "never work for another [open] shop." (5) On or about October 29, his statement to employee Calvin, after all the employees vot- ed for the Union, "I can't even trust you. . . . You told me you were going to vote nonunion and that you were S & K all the way ...." Florida Steel Corporation, 223 _ NLRB 174 (1976); M.S.P. Industries, Inc., d/b/a The Larimer Press, 222 NLRB 220 (1976). Respondent violated Section 8(a)(1) of the' Act by the following actions and conduct of Nancy Keller, its secre- tary-treasurer: On October 24, and immediately after the Union won a unanimous vote of the employees in a repre- sentation election, she instituted new and more restrictive 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work rules for the employees, and withdrew an -existing employee benefit by rescinding permission for them to park their motorcycles in Respondent's building,` thereby implying that the employees were being penalized for their union and concerted activities. M.S.P. Industries, Inc., su- pra. Finally Respondent violated Section 8(a)(1) by the fol- lowing action of Superintendent Howard: (1) On October 13, his statement to employee May that, under a union contract, May "would be con'sidered a temporary employ- ee, and therefore, very unstable in [his] job" (2) On October 27, his withdrawal of benefits from the employees, immedi- ately after the election, by threatening them with discharge if they used Respondent's trucks to go to lunch, in -view of the fact that prior to the employee vote for the Union, Respondent had freely permitted the employees to engage in this practice. (3) On that same day, his statement to employee Calvin, whose lack of a journeyman's license had been ignored by Respondent until the election, that unless Calvin immediately secured such a license he could only work as an apprentice at a very substantially reduced rate of pay. -CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of Tom Calvin, Shirley A. Johnson, David F. May, Michael W. Mills, Michael L. Shott, and Jack E. Young, Jr., thereby discouraging membership in the Union, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. The General Counsel has not proved by a preponder- ance of the evidence that the Respondent interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed by the Act, except by the specific acts and conduct found herein to have been violated. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that Re- spondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily sus- pended Shirley A. Johnson, David F. May, Michael W. Mills, Michael L. Shott, and Jack E. Young, Jr., during the week of October 13, 1975, and thereafter discriminatorily discharged them,17 and that it discnminatorily discharged Tom Calvin on October 29, 1975, it will be recommended that Respondent be ordered to offer all of the foregoing. immediate and full reinstatement, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they'may have suffered from the time of' their suspensions and discharges to the date of Respondent's offer of reinstatement. The backpay for the foregoing employees shall be computed in accor- dance with the formula approved in F. W Woolworth Co., 90 NLRB 289 (1950), with interest computed in the man- ner prescribed in Isis Plumbing`& Heating Co., 138' NLRB 716 (1962). It will be further recommended that Respon- dent be ordered to reinstate the promotion of Johnson, as of October 13, 1975, which President Keller told her on that date be was withholding because of her affiliation with the Union. It will also be recommended that Respondent be ordered to pay the $100 tuition fee, on Johnson's behalf, at the apprenticeship school of the Association of Indepen- dent Electrical Contractors of America, which Respondent discriminatonly withheld. In the event Johnson has already paid this fee, in whole or in part, Respondent will retm- burse that employee to a maximum of $100 for such pay- ments as she has made. Finally, it will be recommended that Respondent be required to preserve and make avail- able to the Board or its agents, on request, payroll and other records to facilitate the computation of backpay due. As the unfair labor practices committed by Respondent are of 'a character striking at the root of employees' rights safeguarded by the Act, it will'be recommended that Re- spondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Upon the foregoing findings of facts, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 18 The Respondent, S & K Electric, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, suspending, or otherwise discriminating against any employee because of activity on behalf of Lo- cal Union No. 716, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization. - (b) Interrogating any employee "concerning that individuals union activity , or that of other employees, in a manner constituting a violation of Section 8(a)(1) of the Act. 17 As found above, May was discharged on October 20, Johnson on Octo- ber 27, Shott on October 27, Young on October 27, and Mills on October 29 18 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. S & K ELECTRIC, INC (c) Instituting new and more restrictive work rules be- cause of its employees' membership in, or adherence to, the Union. (d) Threatening its employees with loss of jobs or clos- ing of its business if a majority become members of, or assist, a labor organization. (e) Threatening its employees with loss of fringe benefits and wage increases, with lack of opportunity for promotion to journeyman status, and with blacklisting, if a majority become members of, or assist, a labor organization. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, or engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protec- tion or to refrain from any or all such activities 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer to Tom Calvin, Shirley A. Johnson, David F. May, Michael W Mills, Michael L Shott, and Jack E. Young, Jr., immediate and full reinstatement to their for- mer jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make them whole in the manner set forth in the section of this decision entitled "The Remedy " (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary, or appropriate, to analyze the amount of backpay due. (c) Rescind the restrictive and discriminatory work rules which were instituted immediately after the Union won the representative election. (d) Post at its shop in Houston, Texas, copies of the attached notice marked "Appendix."" Copies of said no- tice, on forms provided by the Regional Director for Re- gion 23, after being duly signed by the Respondent's au- thorized representative, shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 23, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dis- missed insofar as it alleges any unfair labor practices, other than as herein specifically found. 19 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX 451 NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Local Union No. 716, International Brotherhood of Electri- cal Workers, AFL-CIO, or any other union, by dis- charging, suspending, or otherwise discriminating against our employees because of their union or con- certed activities WE WILL NOT interrogate any employee concerning that individual's union activity, or that of any other employee, in a manner constituting a violation of Sec- tion 8(a)(l) of the Act. WE WILL NOT institute new and discriminatory work rules because of our employees' adherence to a Union. WE WILL NOT threaten our employees with loss of jobs, or the closing of our business, if a majority be- come members of, or assist, a labor organization. WE WILL NOT threaten our employees with loss of fringe benefits and wage increases, with lack of oppor- tunities for promotion to journeyman status, and with blacklisting, if a majority become members of, or as- sist, a labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutu- al aid or protection, or to refrain from any or all such activities. WE WILL rescind the discriminatory work rules which were instituted immediately after the Union won the representation election on October 24, 1975. WE WILL offer Tom Calvin, Shirley A. Johnson, Da- vid F May, Michael W Mills, Michael L. Shott, and Jack E. Young, Jr., immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them. In addition, we will make whole Shirley A. Johnson for the loss of pay suffered as a result of the denial of a promotion on and after October 13, 1975, and by our refusal to pay two-thirds of the cost of her tuition at the school pro- gram conducted by the Associated Independent Elec- trical Contractors of America. WE WILL rescind the restrictive and discriminatory work rules which were put into effect immediately af- ter the Union won the representation election on Oc- tober 24, 1975. S & K ELECTRIC, INC.