Haynes-Trane Service Agency

HAYNES-TRANE SERVICE AGENCY 83 Haynes-Trane Service Agency, Inc. and United As- ORDER sociation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United Pursuant to Section 10(c) of the National Labor States and Canada, AFL-CIO, Local Union No. Relations Act, as amended, the National Labor Re- 208. Case 27-CA-6503 lations Board adopts as its Order the recommended Order of the Administrative Law Judge and October 28, 1981 hereby orders that the complaint be, and it hereby DECISION AND ORDER is, dismissed in its entirety. BY MEMBERS FANNING, JENKINS, AND form of both passive and active threats to management, and a challenge by yourself for management to discharge you," Respondent must have ZIMMERMAN terminated Ledford for attempting to exercise his rights under the Act as it stated it would do in its earlier letters. On December 17, 1980, Administrative Law Aldrich's testimony does in fact raise the possibility that, in drafting Judge James M. Kennedy issued the attached Deci- Ledford's dismissal memo, Respondent may have taken into account Led- sion in this proceeding. Thereafter, the General ford's threat to file NLRB charges as well as other unprotected threats. However, careful examination of the circumstances surrounding Led- Counsel filed exceptions and a supporting brief, ford's dismissal establishes that Ledford's threat to file NLRB charges did and Respondent filed an answering brief. not play a motivating role in his discharge. Pursuant to the provisions of Section 3(b) of the On the morning of October 22, 1979, Ledford refused to report to a Pursuant to the provisions of Section 3(b) of the temporary job assisgnment in Denver. Later that day, he was notified by National Labor Relations Act, as amended, the Na- wire that he would be suspended for I week if he did not report to the tional Labor Relations Board has delegated its au- Denver job the following day. On October 23, Ledford again refused to report. As a result, he was suspended from October 24 through October thority in this proceeding to a three-member panel. 31. Ledford returned to work on November I, and was again ordered to The Board has considered the record and the at- report to a Denver job. Respondent accepted his excuse that he could tached Decision in light of the exceptions and not go to Denver that day for personal reasons. However when edford again declined to go to Denver the next day, he was discharged. This briefs and has decided to affirm the rulings, find- sequence of events persuades us that Ledford's termination was precipi- ings,' and conclusions2 of the Administrative Law tated by his repeated refusal to accept temporary work assignments in Judge and to adopt his recommended Order. Denver. Thus, under the test adopted in Wright Line. a Division of Wright Line, Inc., 251 NLRB 1083, 1089 (1980), enfd. N.L.R.B. v. Wright Line, 662 F.2d 899 (Ist Cir. 1981), we are compelled to conclude that the Gen- At fn. 10 of his Decision, the Administrative Law Judge stated that, eral Counsel has not made "a prima facie showing sufficient to support according to its president, Fred Haynes, Respondent never sent employee the inference that protected conduct was a 'motivating factor"' in Re- Charles W. Ledford a warning letter regarding alleged threats to man- spondent's decision to discharge Ledford. agement because Ledford's suspension had been deemed warning enough. Because the General Counsel has failed to make a prima facie case, in The record shows that Ledford was suspended solely because he refused which event the issues treated in Wright Line do not arise, Member Jen- to report to a temporary job assignment in Denver. Haynes' testimony kins does not consider Wright Line pertinent. that Ledford's suspension was considered warning enough was in the Member Zimmerman agrees that Respondent did not violate Sec. context that no useful purpose would have been served by disciplining 8(aX4) and (I) of the Act. He finds that, through the testimony of Service Ledford for a second act of alleged misconduct at a time when he was Manager Jan Aldrich, the General Counsel made a prima facie showing being subjected to more severe discipline for an earlier act. Haynes did that protected conduct was a motivating factor in Respondent's decision not suggest that Ledford's alleged threats motivated his suspension in any to discharge employee Ledford. The mention of the filing of NLRB way. charges in a proposed letter of discipline I week prior to the discharge, 'The General Counsel has excepted, inter alia, to the Administrative coupled with the repetition of the same language regarding "threats" in Law Judge's conclusion that Respondent did not violate Sec. 8(aX4) and the actual dismissal letter, supports the inference that protected conduct (1) of the Act by discharging employee Ledford. In support of this ex- was a motivating factor for the discharge. However, he further finds that ception, the General Counsel points to certain testimony the Administra- Respondent established that it would have discharged Ledford for repeat- tive Law Judge did not discuss which appears to establish some link be- ed refusals to accept temporary work assignments even in the absence of tween a threat Ledford made to file charges with the Board and his dis- his protected conduct. missal. Service Manager Jan Aldrich testified on cross-examination that a letter was drafted, but never sent, which would have warned Ledford DECISION that continued threats to management personnel would result in his dis- charge. The letter reads as follows: STATEMENT OF THE CASE Dear Mr. Ledford: On----occasions in the recent weeks you have made various JAMES M. KENNEDY, Administrative Law Judge: This threats to other management personnel in this company, apparently case was heard before me in Denver, Colorado, on in connection with the charges you have filed with the NLRB. On August 12-14, 1980, pursuant to a complaint issued by October 23, in a phone conversation with Bill Watkins regarding the Regional Director for Region 27 for the National your failure to accept a temporary assignment to Denver, you threat- ened that "Someone's head is going to be broken." Labor Relations Board on February 19, 1980, and which The company cannot ignore or tolerate such threats. This letter is based on a charge filed by United Association of Jour- should be considered by you as a serious reprimand of your conduct, neymen and Apprentices of the Plumbing and Pipefitting and because you are already on a week's suspension without pay, no Industry of the United States and Canada AFL-CIO further action will be taken. However, any recurrence of threats abusive, or insubordinate conduct will result in your immediate dis- Local Union No. 208 (herein called the Union), on Janu- charge. ary 8, 1980. The complaint alleges that Haynes-Trane Aldrich further testified that included among the threats contemplated by Service Agency, Inc. (herein called Respondent), has en- the letter were threats of civil action and bodily harm and a threat Led- gaged in certain violations of Section 8(a)(1), (3), (4), and ford had made concerning the filing of charges with the Board. The Gen- eral Counsel argues that, because one of the four reasons for discharge (5) of the National Labor Relations Act, as amended listed on Ledford's memorandum of dismissal was "Insubordination in the (herein called the Act). 259 NLRB No. 12 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Issues by Trane but by others. This case involves the service end of Respondent's business. The principal issue is whether Respondent discrimina- end of Respondent's business. torily ordered its employee Charles W. "Bill" Ledford to Respondent's entire operation is run by its president, transfer from its Colorado Springs office to its Denver Fred Haynes. His assistants with respect to the service transfer from its Colorado Springs office to its Denver Controller William Watkins and Service headquarters as a reprisal for its employees' having agency are chosen representation by the Union. When Ledford re- Manager Jan Aldrich. Under Aldrich are field supervi- sors and so-called "service engineers," i.e., those individ- fused to transfer, he was suspended; he refused a second time and was thereafter discharged. Thus, a sequentialnstallation and/or repair of issue is whether or not those acts were likewise unlaw- equipment. The Colorado Springs office was also divided into the ful. In an alternative theory the General Counsel has al- two divisions but was much smaller. During the leged that Respondent took its action against Ledford leged that Respondent took its action against Ledford in question it had two or three sales persons, including a because he participated in a representation case hearing. es two ers including a Finally, as a third alternative, there is the allegation that es manager, two service engineers, ncluding the al- leged discriminatee, Bill Ledford, and two office workers the decision to transfer Ledford was a unilateral change in.. working. condi s ad d d who provided clerical support to both sides of the busi- inworin conditions and dtus.nedtoundermi e ness. Until August 1979,2 Ledford was in charge of the ~~Union's majority status.Colorado Springs service operation. For some period All parties were given full opportunity to participate, prior to the transactions to be described herein, he re- to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, ported directly to Aldrich. However, the Denver oper- which have' b . c y c d ation also had an intermediate field supervisor who had which have been carefully considered, were filed on whibehalf of all parties. havebeencarefullyconsideredirect supervision of the service engineers and who re- ported directly to Aldrich. Ledford did not report to Upon the entire record of the case, and from my ob- ported directly to Aldrich. Ledford did not report to servation of the witnesses and their demeanor, I make him until August. At that time the field supervisor was the following: FINDINGS OF FACT B. The Union Organizing Drive and the Election On April 25 Respondent issued a new policies and I. THE BUSINESS OF RESPONDENT procedures statement with respect to the employer-em- Respondent admits it is a Colorado corporation en- ployee relationship. On April 27 a group of employees, gaged in the sale, installation, and service of heating and including Ledford, met with Fred Haynes to discuss the air oonditioning equipment having its headquarters in new policies. Dissatisfied with the changes and with Englewood, Colorado, and a subsidiary office in Colora- management's responses the employees met at a nearby do Springs. It further admits that during the past year, in restaurant and discussed the possibility of seeking union the course and conduct of its business, it has purchased representation. Ledford's participation in both meetings and received goods and materials valued in excess of was not remarkable as compared to any other employ- $100,000 from suppliers outside Colorado. Accordingly it ee's. He later signed a union authorization card, but so admits, and I find, that it is an employer engaged in com- did most of the other employees. A petition was filed by merce and in a business affecting commerce within the the Union and on June 12 a hearing was conducted in meaning of Section 2(2), (6), and (7) of the Act. Denver with respect to it. One of the issues was the question of whether or not Ledford, as the head of the II. THE LABOR ORGANIZATION INVOLVED Colorado Springs service operation, was a supervisor within the meaning of Section 2(11) of the Act and Respondent admits, and I find, that the Union Is a whether he was properly includable in the voting unit. labor organization within the meaning of Section 2(5) of Through counsel Respondent sought a continuance of thie Act. that hearing because it conflicted with a previously 1II. THE ALLEGED UNFAIR LABOR PRACTICES scheduled trade show in which Respondent was a par- ticipant, but the hearing officer denied the motion. Re- A. Background and Participants spondent thereupon did not participate further in the hearing. Respondent is a heating and air-conditioning sales and Ledford, aware that his status was an issue, had left service business which holds an exclusive Trane Compa- work that day to attend the hearing. He testified with re- ny franchise for the State of Colorado and parts of Wyo- spect to his duties at Colorado Springs and subsequently ming and Nebraska. As noted its headquarters are in En- the Regional Director issued a Decision and Direction of glewood (a suburb on the south side of Denver)' and it Election which, among other things, found him not to be has a subsidiary office in Colorado Springs. In addition it a supervisor. A mail election was arranged and the bal- has another subsidiary office in Cheyenne, Wyoming. lots sent to all eligible voters on July 27. On August 10 The business is divided into two sections, the sale of new the returned ballots were opened and counted. The elec- Trane Company equipment and the service of heating tion result showed that the Union had obtained a major- and air-conditioning equipment manufactured not only I Unless otherwise indicated all dates are in 1979. The parties refer to the Englewood headquarters as the "Denver" ' The Cheyenne operation, which is not really pertinent here, was run office. That terminology will be followed herein. by one individual who handled both service and sales. HAYNES-TRANE SERVICE AGENCY 85 ity and the Regional Director 10 days later certified the evidence, other than Ledford's testimony, that either Union as the exclusive bargaining representative of the agreement existed. service engineers unit, covering the Denver, Colorado On cross-examination Ledford explained the basis of Springs, and Cheyenne offices. his accusation to Haynes that the transfer was "a union reprisal." He said that the events which led him to that C. Ledford's Employment at Colorado Springs conclusion involved "times when we were ostracized by the Company." On further examination he said the Com- Ledford was originally hired by Respondent in 1979 and worked in the Denver office as a service engineer pany's treatment of him was "an ignoring [sic] . . . very and worked in the Denver office as a service engineer little was said to us." until 1976 when he was transferred to Colorado Springs. little was said to us." From 1976 to 1978 he was the only service engineer in On August 14, 4 days after the ballots were counted Colorado Springs and was supervised by the manager of Aldrich went to Colorado Springs. He met with Ledford Colorado Springs and was supervised by the manager of that operation, Dick Logue. In mid-1978 Respondent at a local pancake house and a conversation covering a that operation, Dick Logue. In mid-1978 Respondent number of topics occurred. According to Ledford, Al- hired Mike Edde who was trained momentarily in e e d rad. drich principally "discussed the union." Ledford says Al- Denver and then assigned to Colorado Springs. Shortly drich told him "the guys had brought he [sic] and Fred thereafter Logue resigned and Ledford became the serv- Haynes to their knees with the Union, with voting in [Haynes] to their knees with the Union, with voting in ice manager. 4 He held that position until August 27, the Union." Ledford recalled Aldrich also said 1979, when the senior clerical in Colorado Springs, Lois "[Haynes] wouldn't have to sign an agreement. He just Gysin, became service coordinator and Ledford began had to negotiate." In the same conversation, according reporting directly to Greg Koenig. to Ledford, Aldrich also told him that "the union vote is Also on that day Jan Aldrich, the service manager, in- behind us, and that seemed to take up a lot of everyone's formed Ledford that he was to relocate in Denver by time . . . and let's continue with the work now." December 1, 3 months hence. The only reason Aldrich Aldrich agrees that on August 14 he met with Ledford gave Ledford for the decision was "economic consider- in Colorado Springs. He had gone there to review some ations." Ledford contends that Aldrich said nothing fur- job files and had picked up six files to examine. He re- ther, but there is reason to believe that Aldrich either called the pancake house conversation somewhat differ- told Ledford, or that it was a company policy well ently and places different emphasis on it. He remembers known to Ledford because of his 1976 transfer, that Re- that when he spoke to employees, including Ledford, spondent would assume most, if not all, the costs of his during that period it was common for them to quickly relocation. Ledford testified that the decision came as a bring up the Union as a topic. He said he and other su- "total suprise." pervisors had been instructed to avoid conversations of That evening Ledford decided to ask Respondent's of- that nature but it was hard to do so because of the em- ficials to reconsider their decision. His family had ployees' persistence. He remembers the conversation in become well situated5 in Colorado Springs and he had question as occurring in the following manner. no desire to leave that city. He says he first called Presi- dent Haynes at his home and told him he did not wish to The way I recall, Mr. Ledford alluded to the fact move back to Denver. He told Haynes that he felt the that now we are union, we are going to do this, decision was "a union reprisal"; they also discussed other this, and this. I said, as I understand it, let me ex- matters including his assertion that he and the Colorado plain the position: we are not union, we are com- Springs office had been "more or less kept in the dark as mitted to sit down and bargain in good faith to es- to what the profit pictures were." Haynes told Ledford tablish a contract; we may end up establishing the that the decision stood and that it was an economic con- existing contract, we may forge a new contract; I sideration. Ledford later called Aldrich and had a similar don't know, but we're not union. We are committed discussion with him, also to no avail. Ledford testified to sit down and bargain in good faith. that in both conversations he asserted he had made an agreement with the Company in 1976 when he had With respect to Ledford's testimony that he had said moved to Colorado Springs that if he liked that city he something to the effect that the Union had brought could stay. He says another agreement was reached in Haynes and him "to their knees," Aldrich said, "I may 1978 when Edde was assigned to that office. The second have used that expression. I can't honestly say that I said agreement was to the effect that in the event it became it, but I may have." necessary to rotate an individual back to Denver it Between August 27 and mid-October Ledford's em- would be Edde, not him. Ledford says both Haynes and ployment continued in the normal fashion with one ex- Aldrich professed lack of knowledge of such agreements. ception. At some point Ledford decided he would not Their testimony, as well as Watkins', is similar; they transfer to Denver though he may have hoped Respond- knew of no such agreements.' On this record there is no ent would change its corporate mind about requiring him to do so. On September 27 he signed a trade name affida- ' Another individual. Stacy Heib, became the sales manager at that vit, actually filing it on October 2 with the County time. Clerk, establishing a trade name for a new heating and ' Ledford's phrase was "dug in." air-conditioning business, Service Engineering, of which 6 Ledford at first testified Aldrich told him the question of such an he was to be the proprietor. In addition there is his testi- agreement would be "settled in the courts." Almost immediately he backed off saying that such a remark may have occurred in another con- mony that he had obtained a $90 receipt dated Septem- versation with Controller Watkins much later. ber 28 from the telephone company as a deposit on a 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business telephone. Also, he made an arrangement with This wire will serve notice that because of your the telephone company to buy a large Yellow Pages ad- failure to report to your assigned job today, you vertisement for Service Engineering. The dates of these have put the Company's account relationship in activities are not quite clear but appear to have been in jeopardy. You are hereby instructed to report to late September. On October 18 he established a business your assigned job tomorrow. Failure to comply bank account for Service Engineering. with this directive will result in one week's suspen- Ledford said that on October 18 he had heard from sion without pay commencing 10-23-79 and ending Lois Gysin, who was scheduling the Colorado Springs 10-31-79. employees, that he was to work on a Denver area job beginning Monday, October 22. He also said Koenig told On October 23 Ledford again refused to go to the him officially of that assignment on October 19. (Gysin Denver site. When Gysin reported his refusal to Denver also said she first told Ledford of the assignment on Oc- she was told he was to be suspended; that did not occur tober 19 and described that conversation in some detail.) immediately as there was some confusion over the exact Koenig says it was either on October 18 or 19 that he suspension period. On that day Ledford assigned himself told Ledford he was scheduled for a Denver job involv- to go with Edde to a Colorado Springs job. His suspen- ing 2 days' work. Koenig testified Ledford responded sion actually began the following day. saying he would not go to the job and that he had re- On Thursday, November 1, Ledford was to return to ceived advice that a temporary job in Denver was the work. Again he had been assigned to work a Denver same as a transfer and, if he acquiesced, it would be used area job. That morning he called Gysin to tell her he against him in some fashion. Koenig also reported that would not be leaving his home for some time as the Ledford told him the transfer was not part of "the deal" wing window of his truck had been broken. He was and if anyone were to go to a Denver job it should be afraid someone had broken into it the previous evening, Edde. Koenig replied he was unaware of any "deal"; Halloween night, and he needed to determine if any Koenig later testified such arrangements did not exist for equipment was missing He told Gysin he was waiting anyone else. for the police.' She reported the situation to Denver and On October 22 Ledford refused to go to the Denver although Watkins thought his reason for not reporting to the Denver site was "flimsy" he tolerated the situation. jobsite. It should be noted here that Ledford had posses- the Denver site was "flimsy" he tolerated the situation. Edde went to Ledford's home to help him. Ledford did sion of a company truck and regularly used it to com- Edde went to Ledforda s home to help him. Ledford did mute from his home to work as well as driving it to var- had a discussion at the office with Watkins who had ious worksites. He was expected to drive the truck to the had a discussion at the office with Watkins who had Denver job. He claims Koenig had said he would not be entitled to travel pay while enroute between Colorado On the next day, November 2, Ledford picked up the truck at the Ford dealership where it was being repaired. Springs and the Denver site. Koenig was not asked that .but Haynes said it is company policy He testified that, when he attempted to drive it, the particular question, but Haynes said it is company policy particular qusin .... motor did not run correctly.8 He told Gysin that the ve- to pay employees their standard hourly rate while en- gaged in lengthy commutes. The April 25 policies and hicle was inoperable and he wanted to leave it at the gaged in lengthy commutes. The April 25 policies and procedures memo permitted an employee a half hour garage for repairs. Either she or someone from Denver procedures memo permitted an employee a half hour commute time. Ledford deemed that to be insufficient. told him to get to Denver any way he could, including But that provision seems aimed at the Denver-based em- using Edde's truck, but he refused. She testified that he But that provision seems aimed at the Denver-based em- tried to get her to overrule the Denver assignment, but ployees for Denver-area jobs. It appears unlikely to have she would not do so because there was nothing more had applioation to Ledford who was in the process of pressing to do in Colorado Springs. She reported his re being transferred and who was being staged into Denver. pressing to Denver and was t old that someone would be Oddly, Ledford never asked Aldrich who could have right down to take care of the matter. clarified the matter of travel pay. Haynes testified Led- Later that morning Watkins appeared at the Colorado ford would have been on full pay for travel time to Springs office and discharged Ledford by memo signed Denver during the transfer period. In any event, allow- by Aldrich. The memo recites four reasons for his dis- ing for the policy's half hour travel time, the amount of charge. The first and fourth reasons are connected. The money involved herein is probably in the neighborhood c . first recites that on two occasions he failed to report for of half an hour's pay each direction as Colorado Springs temporary job assignments and the fourth says that he is only approximately 70 miles from Denver. Ultimately had placed a customer's account in jeopardy by working Ledford conceded that the question of travel pay was on jobs which are not assigned to him. The second not the reason he refused to report to the Denver site; it reason given was "questionable reporting of time worked was his refusal to work in Denver at all. on job assignments" and the third was "insubordination" Ledford's refusal to go to the Denver job on October taking the form of both "passive and active threats to 22 was promptly reported to Denver by Gysin. Shortly thereafter Controller Watkins called her back to tell her X A police report was never filed. Ledford says that when he told the he had not decided what action to take. Later that day police nothing was missing they refused to investigate his complaint. Aldrich sent Ledford a wire (originally telephoned to u The dealership later reported the truck needed new spark plug wires, but Watkins declined the repair and drove the truck to Denver. The him, but later put in writing by Western Union) which spark plug wires were never replaced, at least within the period pertinent read as follows: here. HAYNES-TRANE SERVICE AGENCY 87 management and a challenge by yourself for management unlawful. The record does not show when that charge to discharge you." was withdrawn, but it is conceivable that if Ledford Items one and four encompass his October and No- were aware of the manner in which Respondent went vember refusals to report to Denver assignments. These about calculating employee efficiency, and was also have been explicated above. Item two involved two aware that such material would be advanced by Re- things. The first was a time report for June 12, the day spondent as a defense to an unfair labor practice charge, of the National Labor Relations Board's hearing in Ledford would understand the matter sufficiently well to which Ledford had claimed to have worked a full 8-hour realize that changing the underlying data would under- day. However he had been off the entire morning at the mine that defense. Frankly, on this record neither fact Board hearing and had not mentioned his absence to has been sufficiently well proven for me to make any attend the Board hearing on his timecard. This resulted findings thereon. Nonetheless Gysin's testimony was not in Aldrich's questioning the timecard. Aldrich "official- sufficiently shaken by the General Counsel or the Charg- ly" accepted Ledford's explanation that the time had ing Party for me to discredit it; by the same token nei- been worked after the hearing had ended. In fact Al- ther did Respondent clearly prove that Ledford doctored drich continued to doubt Ledford but, not wishing to the documents, although he may have had both the make an issue of it, let it drop. motive and opportunity to do so. The second, and more important, matter covered by The third reason listed in the discharge memo, "insub- item two involved an observation made by Gysin during ordination," involved Ledford's refusal to accept assign- Ledford's week on suspension. One of Gysin's duties was ments as noted above and also included "threats" which to perform the paperwork on each work order to collect are not truly denied by Ledford. These involve state- data and material for proper billings to the customers. ments which he made to Koenig and Watkins to the Although not particularly perceived by either her or effect that "heads will be broken." Ledford denies using Ledford at Colorado Springs, some of that same data that exact phraseology but admits he commonly uses the was used by Denver, particularly the controller's office, phrase "heads will roll" and concedes he may have used to determine manpower efficiency. One of the calcula- that statement to both those individuals. Respondent also tions done for that purpose was to compare the number points to a few occasions in which Ledford claimed he of billable hours per month with the number of hours ac- was compiling "dirt files" to be used against the Compa- tually billed. That was done for each job and Colorado ny in the event it carried out its demand that he move to Springs had been under some scrutiny since January be- Denver. Ledford denies making such threats but does cause of a perceived managerial inefficiency in the serv- say he was attempting to keep track of what happened to ice department. According to both Haynes and Watkins him in order to support the National Labor Relations it was these figures, together with unfavorable profit Board's charges which had been filed. Finally, Watkins projections, which led Haynes to decide to transfer Led- quotes Ledford, on November 1, as having "dared" Re- ford to Denver in the first place. On August 14 Watkins spondent to fire him, the challenge which is included in had taken six files to examine for the purpose of identify- item three, Ledford denies having made that statement. ing problem areas with respect to profit efficiency. During that time he had explained to Ledford, perhaps Iv. ANALYSIS AND CONCLUSIONS in nondetail form, what his concern was. In late October Gysin had occasion to go through similar files and had In the foregoing section explicating the facts leading noticed that enclosures appeared to be stapled to the up to Ledford's discharge on November 2, I have de- folders contrary to office practice and that some of the scribed those facts which may properly be construed as hours charged to the job were not consistent with the part of the General Counsel's case-in-chief, together with hours being submitted by the service engineer, principal- appropriate dovetailing facts proven by Respondent ly Ledford. She thought the files had been doctored in which should be juxtaposed against it. I have not de- some fashion and thought she detected Ledford's hand scribed with detail the procedure which Respondent says (albeit in printed form) where it normally would not be it followed with respect to reaching its decision of seen. Although uncertain of the situation, she neverthe- August 27 to require Ledford to transfer to Denver. I less reported her observation to Watkins who, on No- have not done so beoause it is not a part of the General vember 1, came to Colorado Springs to conduct an in- Counsel's burden of proof nor is it particularly necessary vestigation of the matter. After questioning everyone, in- to discuss the procedure in detail as a response to the cluding Ledford, as to whose handwriting it was, and General Counsel's proof. after determining that recalculation of those hours made Of course in every case before the Board it is the Gen- Ledford's efficiency appear better than it had been eral Counsel's burden to prove the alleged violation. before, Watkins concluded that the individual who was Here, it is somewhat difficult to follow the General likely to have doctored the forms was Ledford. Counsel's alternative theories. First, the General Counsel I note that the proof which Watkins had against Led- alleges that Respondent's decision to transfer Ledford as ford is hardly conclusive. Nonetheless both he and Al- either straightforward reprisal for the election results, for drich testified that this matter induced them to cite it as Ledford's own union sympathies, or because he partici- one of the reasons for discharging him. It should be ob- pated in the representation case hearing. The difficulty served that an unfair labor practice charge, Case 27-CA- with these theories is that the principal element of union 6351, had been filed on September 12 alleging that Re- animus is only ephemeral, if not missing altogether. With spondent's decision to transfer Ledford to Denver was respect to the General Counsel's claim that the decision 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to transfer Ledford violated Respondent's bargaining ob- Certainly the National Labor Relations Act does not re- ligation to the Union, the theory is likewise unclear. quire Respondent to sign any proposal until an agree- Normally a unilateral change case can be made without a ment is actually reached. Allowing for lay imprecision showing of animus. Here, however, the General Counsel on Aldrich's part, such a statement contains no animus. has alleged that Respondent's purpose was to "under- If taken as an announced refusal to sign a negotiated mine" the Union's majority status. These varying ap- agreement, such animus does not necessarily include an proaches to the facts, rather than strengthening the Gen- intention to discriminate against employees on a eral Counsel's hand, demonstrate its weaknesses instead. hire/tenure basis. First, there is no particular showing by the General The second sentence-"he just had to negotiate"- Counsel that Ledford's union activity was any greater likewise does not clearly evidence animus of a than that of any other employee or that Respondent hire/tenure nature. Indeed, it can be understood as a rec- thought so or otherwise had reason to single out Led- ognition of the legal obligation to bargain with the ford. Indeed, the initial contacts between the employees Union, though conveying the likelihood of a hard bar- and management with respect to challenging the April gaining stance. Even the statement that the Union had 25 change in policy was made by a Denver employee, brought company officials "to their knees" is vague as Steve Arneson. Haynes knew that. Ledford, though he animus evidence. may have spoken out at that meeting, has not been Aldrich himself says that he told Ledford Respondent shown to be any more vocal or vociferous than anyone was obligated to bargain in good faith and that the out- else. In any event the group's dissatisfaction with come of the negotiations could be any number of varia- Haynes' response did not manifest itself to Haynes' per- bles. In a sense, therefore, Ledford's statement that Re- ception as being aimed in a union direction. That direc- spondent just had to bargain can be seen as a corrobora- tion did not materialize until after the meeting was over. tion of Aldrich's denial. Frankly, if any animus has been Haynes has not been shown to have known who the shown here, it is more closely related to bargaining posi- union leaders were. Moreover, the General Counsel has tions to be taken shortly, not reprisals against employees. not shown Ledford to have been such a leader. Other areas of alleged animus can be found, according Later, Ledford signed an authorization card, but so did to the General Counsel, in campaign literature and, ap- others. And it is true that he participated in the Board parently, by the fact that Respondent did not participate hearing testifying to his status as an employee. In that in the representation case hearing. With respect to the literature, the General Counsel's Exhibit 15, there is no sense Respondent may have deemed him to be in favorilure to of union representation. However, Ledford himself ap- animus whatsoever. Regarding Respondent's failure to pears to have neutralized that effect when both before participate in the representation case hearing, that failure is adequately explained by the fact that it conflicted with and after the election he told Gysin, and others, first that is adequately explained by the fact that it conicted with a trade show in which Respondent no doubt had invest- he had not yet made up his mind, and, second, that he had vote agins unon epreenttio. Tus ven ed a great deal of money. It did seek a continuance, but had voted against union representation. Thus even to no avail. To derive animus from that circumstance though he participated in the representation hearing, Re- would be inappropriate. Also cited as evidence of animus would be inappropriate. Also cited as evidence of animus spondent's management, who had been informed by is Ledford's claim that he and Edde were "ignored" Gysin that Ledford did not favor union representation, after the election. However, the evidence does not show could not be sure of his stance. Thus, Respondent's state that, and even if it did, it would not amount to animus. 0 of knowledge regarding his union feelings and desires Also mitigating against a conclusion that Respondent Also mitigating against a conclusion that Respondent was not clear; Ledford sent them deliberately confusing had union animus manifesting itself in ordering Ledford's signals. In that circumstance it does not seem likely that transfer is the manner of the transfer itself. First, Aldrich Respondent would have picked on Ledford as opposed gave Ledford more than 90 days in which to make the to anybody else. transfer. Respondent had transferred him to Colorado Respondent's alleged union animus, according to the Springs in the first place and considered itself to have General Counsel, can be seen from several angles. First the power to transfer him back. In both instances its the General Counsel points to the August 14 conversa- policy was to cover relocation costs. It was not a trans- tion between Ledford and Aldrich in which Aldrich, 4 fer designed to force Ledford to quit as it would have days after the ballots were counted, allegedly told Led- been had union animus been the motivating force. It was ford that the Union had brought Haynes and himself "to designed to make it palatable. Second, when Ledford re- their knees." Ledford further testified that during that fused the October 22 assignment, it did not act precipi- conversation Aldrich remarked that Respondent would tously. It warned him. But Ledford's failure to heed the not sign a contract with the Union. However, in the warning did not even result in his discharge, only a same conversation Ledford described Aldrich as having week's suspension. Respondent then tolerated his appar- said Respondent would negotiate with the Union. Ledford quoted Aldrich as saying Haynes "wouldn't '" Also in the category of nonconclusive evidence is an unsent letter to have to sign an agreement. He just had to negotiate." In Ledford, drafted by counsel for Aldrich's signature, Resp. Exh. 6. That some respects the meaning of these remarks is unclear.9 letter was to have served as a warning to Ledford regarding some threats he allegedly had made in October and during the suspension process on October 23. The letter does connect the threats to Ledford's Board 'Aldrich may have been alluding to the Union's area agreement cover- charge, but the threats are not clearly described. In any event, the letter ing other employers as the expected proposal. Haynes had earlier re- was never sent, because, according to Haynes, Ledford had already been ferred to it in compaign literature dated May 18. suspended, and that was deemed warning enough. HAYNES-TRANE SERVICE AGENCY 89 ent balk of November 1, though it was suspicious of With respect to the 8(a)(5) allegation, once again the Ledford's veracity. Respondent clearly did not wish to proof nears nonexistence. The General Counsel relies on lose Ledford as an employee. That being the case it is Ledford's testimony that he had an agreement with Re- hard to see what Ledford's union sympathies or the ma- spondent to the effect that Edde, not he, would be trans- jority's selection of the Union had to do with the trans- ferred to Denver should economic circumstances require fer. The Union had won and had been certified. And, al- it. First of all, there is no reason to credit Ledford's testi- though bargaining had not yet commenced, Ledford's mony to that effect.' 3 But, assuming that his testimony is transfer could have had little, if any, impact on it. As credited, the agreement was a private one between him Respondent could gain nothing by way of its future rela- and Respondent. It was not a term and condition of em- tionship with the Union by transferring Ledford, I fail to ployment for employees generally. He had negotiated it see any animus here. long before the union organizing drive and it related to The third element in any discharge case is that of him specially, to no one else. Thus, assuming Respondent timing. Timing, here, is double-edged. It is true that the reneged on that agreement, that act affected only him, decision to transfer Ledford was made only a week after not the terms and conditions of the other employees in the certification became final and 17 days after the elec- the bargaining unit. It was not, therefore, a change in tion results were known. But that decision also closely working conditions as contemplated by Section 8(a)(5) followed a favorable periodic evaluation given Ledford and 8(d). See Mike O'Connor Chevrolet-Buick-GMC Co., on August 6. Because the evaluation and the retroactive Inc., and Pat O'Connor Chevrolet-Buick-GMC Co., Inc., raise that went with it coincided with the last campaign 209 NLRB 701 at 704 (1974), and Brown & Connelly, speech before the ballots were mailed and because Al- Inc., 237 NLRB 271 at 280 (1978). Cf. Orfont Orthodontic drich did not wish to be accused of improperly influenc- Laboratories. Inc., 156 NLRB 49 at 64-66. ing Ledford's vote, he gave it to Ledford in a sealed en- And, as with the 8(a)(3) and (4) allegations, supra, the velope, offering to have it held by a third person pend- General Counsel's claim that the unilateral change was ing the election. designed to undermine the Union's majority status de- General Counsel does not allege this to have been im- pends on a showing of union animus. Here, as there, the proper. Furthermore this evaluation is consistent with evidence is nonexistent. There is no proof whatsoever evaluations given Ledford previously and clearly marked that Respondent intended to undermine the Union's ma- him, if he had not already been so marked, as one of Re- jority status or that Ledford's transfer would have that spondent's best and most qualified service engineers. forseeable effect. Furthermore, the transfer contemplated That fact ultimately was the reason that Respondent Ledford's continued employment in the bargaining unit. selected him over Edde as the individual to be trans- Thus, the "undermining the Union" theory also fails for ferred to Denver. Clearly Denver is a larger market for lack of proof. air-conditioning and heating equipment than Colorado Accordingly, I have concluded that Respondent did Springs and clearly there would be greater need for an not violate Section 8(a)(1), (3), (4), or (5) of the Act here individual of Ledford's skills as opposed to those of and I shall recommend dismissal of the entire complaint. Edde's, whose experience was only slightly more than a Upon the foregoing findings of fact and upon the year in the field. Thus, while it may be argued that the entire record in this case, I make the following: timing of the decision is close to the election results, the manner of selection tends to show that the election had CONCLUSIONS OF LAW nothing whatsoever to do with the decision. Eespondent was most careful, and took great pains, to avoid being Inc., is an employer engaged in commerce within the accused of misconduct with respect to Ledford's evalua- meaning of Section 2(6) and (7) of the Act. tion. Second, the market situation in Denver required 2. United Association of Journeymen and Apprentices someone of greater skill." ~2. United Association of Journeymen and Apprentices someone of greater skill. II of the Plumbing and Pipefitting Industry of the United I am, therefore, unable to find that the General Coun- of the Plumbing and Pipeitting Industry of the United States and Canada, AFL-CIO, Local Union No. 208, is a sel has made out a prima facie case that Respondent dis- labor organization within the meaning of Section 2(5) of criminated against Ledford either because he was a labor organization within the meaning of Section 2(5) of union activist or because it sought to take a reprisal against the union-represented employees generally. Cer- 3. Respondent has not engaged in any violations of tainly there is no evidence to show that Ledford's par- Section 8(a)(l), (3), (4), or (5) of the Act. ticipation in the representation case hearing had anything 13 With respect to Ledford's credibility generally, I found him to be to do with the decision. t2 glib and capable of explaining all questions in an innocent-appearing manner. His testimony must be carefully examined. For example, his " In this respect it should be noted that Respondent has been attempt- denial that he "dared" Respondent to fire him on November I cannot be ing to recruit experienced service engineers to work in its Denver office credited. He was already prepared to begin his new business. He had for some time. It had also recently experienced a loss of three such em- committed time and money to that effort. Once he had made up his mind ployees and had only been able to locate one new individual. that he was not going to Denver and had prepared for the worst, his 112 Had Respondent truly wished to take a reprisal against Ledford for "dare" becomes quite likely. His frustration level was then quite high and testifying in the representation case hearing, it could have done so as he his dare, in light of his newly seen independence, is more than a mere had provided them with ready reason, his failure to note his whereabouts possibility. Thus, where credibility matters, I cannot credit Ledford over on his June 12 timesheet. That failure did trigger an inquiry by Aldrich, others. Certainly the General Counsel has provided no reason to discredit but he let it drop. Respondent's witnesses when compared to Ledford. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and ORDER'4 conclusions of law, and upon the entire record in this The complaint is dismissed in its entirety. case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: '" 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 hereto shall be deemed waived for all purposes.