Blue Hills Cemetery, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blue Hills Cemetery, Inc; American Sales Corpora- tion; and G.M. Ridge Corporation and Elliott Jens Stennes. Case I-CA-11822 April 25, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On January 26, 1977, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief,' 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 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge inadvertently failed to include a remedy section in his Decision. His recommended Order, however, is in accordance with our usual remedy for discriminatory discharge which we find to be appropriate in the instant case. Accordingly, we shall adopt his Order requiring Respondent to offer Elliott Stennes immediate and full reinstatement to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered from the time of his discharge to the date of the Respondent's offer of reinstatement. The backpay for the foregoing employee shall be computed in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at the rate of 6 percent per annum as provided for in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). As set forth in the Administrative Law Judge's recommended Or- der, Respondent is required to preserve and upon request make available to the Board or its agents payroll and other records to facilitate the computa- tion of backpay due. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as 229 NLRB No. 49 modified below, and hereby orders that the Respon- dent, Blue Hills Cemetery, Inc., Braintree, Massa- chusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: Substitute the following for paragraph 2(b): "(b) Make Stennes whole for any loss of pay or any benefits he may have suffered by reason of the Respondent's discrimination against him, with inter- est at 6 percent per annum." ' Respondent's motion to reopen the record is hereby denied as it is lacking in merit. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule 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. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge: A hearing in this proceeding was held at Boston, Massachusetts, on December 6, 1976, on complaint of the General Counsel against Blue Hills Cemetery, Inc., here called the Respon- dent or the Company. The complaint issued on July 29, 1976, on a charge filed on May 26, 1976, by Elliott Stennes, an individual. The principal issue of the case is whether the Respondent discharged Stennes in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. Briefs were filed by the General Counsel and the Respon- dent. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FCT I. THE BUSINESS OF THE RESPONDENT Blue Hills Cemetery, Inc., a Commonwealth of Massa- chusetts corporation, has it principal place of business in Braintree, Massachusetts, where it is engaged in the sale of cemetery plots, vaults, and memorials, and in the operation of a cemetery. Its annual gross volume of sales is in excess of $500,000 and it annually purchases goods and materials in excess of $5,000 from points located outside the Commonwealth of Massachusetts. I find that the Respon- dent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that Laborers International Union of America, Local 133, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES In May 1976, Stennes was I of about 20 employees of the Respondent's cemetery. During the morning of May 17, he 258 BLUE HILLS CEMETERY, INC. and three or four others talked of their conditions of employment and Stennes suggested they consider being represented by a union. Later that same day there was like talk among a larger group of employees, including Stennes and the first few, and there developed a broader consensus to go union. Stennes was asked by the others to do something about it. He telephoned the office of Local 133 of the Laborers International Union and asked Mike Serrata, a business agent, how to proceed. Serrata advised obtaining written authorization cards. Stennes asked could someone from the Union come and speak to the group, and Serrata agreed to send such a speaker. During the next morning Robert Keating, the superin- tendent who ran the entire operation on a day-to-day basis, questioned at least three of the men - Stennes, Bruce DeWolfe, and Thomas Ogle; he said he had heard someone had telephoned the Union, asked was this true, and added he would like to know who had done that.1 During lunch, still on May 18, the employees talked over the matter for about half an hour as they ate. Many wanted the union agent to come to speak to them. At or about 12:30 Keating, and his foreman - Mike Convoy, came into the lunchroom and the discussion continued for over 15 minutes more. Stennes' testimony is that Keating told the group he knew someone had called the Union but "that he didn't think the union would do us as much good as we thought it would. He said he knew of another cemetery that had a union and that those people weren't making as much money as we were. He said that if the Union came in we would have no coffeebreaks. He also said that we would have to eat our lunches out at the cemetery. He said there would be more supervisors and that we would have to work about five times as hard.... He also said that the initiation fees were very high and that the company wouldn't go for a union any way." Stennes' testimony continues that an employee then called for a show of hands as to whether the group still wanted the union agent to come and give his lecture. Stennes continued that he then "interjected that I had already talked to all the men - all the men in the room separately and that they were all for the business agent coming down. .... So I said I had already talked to the business agent and that he was going to come down." The vote was not taken and at the close of the workday Keating discharged Stennes. The complaint alleges the dismissal was retaliation against the man because of his prounion activities and was therefore an unfair labor practice. Denying illegal motive the Respondent asserts affirmatively that the work for which Stennes had been hired was finished and that he was released strictly in accordance with a prehiring agreement. Ogle, one of the men also interrogated by Keating during the morning, corroborated, in part at least, Stennes' testimony as to what Keating told the men in the lunchroom; "he said something, well something about the fact, basically what he had said out to me in the cemetery. That it may not be as rosy as you might think, about I As a defense witness Keating was asked by company counsel had he talked to individuals that morning "about the Union" and had he asked him "What is this about the Union." Keating avoided any direct answer, and in total effect did not deny the straight interrogation attributed to him by the employee witnesses. His sole answer was as follows: joining a union. He discussed some of the drawbacks that a union might have." Ogle added that in Keatings' presence Stennes mentioned the fact it was he who had telephoned the Union. DeWolfe is the third man questioned by Keating before the lunchroom meeting. "He wanted to know what was going on, because nobody had told him about it at the time he approached me, I was working with John Maynard and he asked if we knew anything about it. I don't remember exactly if he mentioned union; but he wanted to know what was going on." Q. Did you ever overhear any conversation be- tween Mr. Keating and another employee regarding the union? A. Well, just that he was afraid if it got in he thought he might get phased out or something .... He didn't want to have the union in, because he didn't think it will be good for the cemetery .... He said he would probably lose his job if the union got in .... Just that if we had any problems to bring them to him first. He made a reference to his dismissal, because - you know, I don't know exactly how he meant it, but he said if he was going down he wouldn't go down alone. Keating denied having told anyone he thought he would lose his job if there was a union, or ever saying the employees would lose any benefits in that event. He said he told the group at lunch to pursue the union idea if they so wished, and that he had no objection to it. He added there was much talk about pay raises that day, that that was the "main issue." And then came the following directly leading question from company counsel: Q. You never told the employees anything about, anything like that about the negative points about a union? A. We may have -well - I credit the employee witnesses against Keating. I find that he questioned them as to whether there was activity among the men towards self-organization, and asked Stennes who had started it all, and that by such interroga- tion by the superintendent the Respondent violated Section 8(aXl) of the Act. I also find that Keating told the assembled employees their working conditions would be made more onerous by the Company if they chose to be represented by a union, and thereby again violated Section 8(a)(1). Violation of Section 8(a)(3) Whatever Keating may have heard during the morning of May 18 as to who the particular union activist was, he certainly learned it was Stennes during the lunch gathering. Stennes spoke up to stop the show of hands intended to reveal the count as to how many favored the Union at all, on the stated ground that the men had already indicated a On that day and the previous afternoon I had noticed sort of a general slowdown in the cemetery, a lot of unnecessary driving around; and I questioned the people as to what, what was the problem. why there was a slowdown. And at that time I was given very few answers. 259 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prounion desire, and then even revealed it was he who had called the union agent in the first place. The summary discharge of the man only a few hours later, at the end of the workday that same afternoon, without a word of advance notice, on its face suffices to establish a causal relationship between Stennes' now disclosed union activity and the discrimination against him. Theprimafacie case in support of the complaint is therefore clear. On the total record, the superintendent's assertion, that Stennes had been hired for only temporary employment and that the precise work for which he was hired had been finished exactly that day, is unconvincing and will not do to avoid the compelling inference that the Respondent chose to discharge him on May 18 only because of his prounion activity. Herman Verbeck, many years an employee of the Respondent and a friend of Stennes, spoke to Keating about Stennes looking for a regular job, permanent employment, and not just temporary work. Keating's testimony is that he agreed to talk to Stennes. Stennes testified he spoke to Keating only once before starting to work. "Bob Keating said there was plenty of work there year round; and that if I was ambitious I would get raises and I would also get uniforms after a specified length of time." Keating, instead, said he talked to Stennes twice before hiring him. According to him Verbeck told him Stennes was looking for "permanent employment," and he told Verbeck there was no position available. Keating nevertheless talked to Stennes, (I supposed as a courtesy to Verbeck) and told him, still as he testified, "we did not have any permanent positions available at that time. And he told me that's what he was looking for, and I just spoke about the type of work we did and its nature, and that was all that was said." Despite his admission of knowing Stennes was only interested in regular employment, Keating continued to testify that later he called Stennes back, just before putting him to work on about April 19 or 20, and told him "that we did have a few weeks work if he wanted to make some money." While it is true this Company does hire employees in the spring to work on what are called "winter graves," and does not keep them permanently around the year, I still do not credit Keating's testimony where it conflicts with that of Stennes. However much he may have wanted temporary people, it is a fact he knew Stennes was not interested in such work. Had he really thought of offering such limited work to the man despite his real desire, there is no explanation of why he did not do so 10 days earlier; April 9 was already springtime when the winter grave work was being done. But Keating's credibility suffers more because of other explanations he offered, assertions that on their face are wanting. Besides Stennes others were hired at about the same time, all for this "temporary work," according to Keating. These were Ogle, DeWolfe, and Torney. Of the four, Stennes was the first to be discharged; Ogle was released the next day and the other two 3 or 4 days later. Why was Stennes picked first? More significant, the very day after releasing Stennes, Keating started hiring others - also for "temporary work," as he said. There were five men he hired, including Kilarn, Sweeney, and Oldsfield. Faced with the inescapable inference that but for his offending union activities Stennes would have been retained at least as long as there was "temporary work" to do, Keating then distinguished between one kind of temporary work and another. He blandly said the new men were hired to "mark" and "trim" graves, and not to reset winter graves, as the earlier four men had done. And to make his asserted defense more convincing he said the new hires were high school boys. "I had people coming in in May to do the other work of trimming and mowing that was needed. These people were already - their employ- ment was prearranged." In the end, Keating said he let all the new men go by Memorial Day. This means the school boys who came on May 19, the day after Keating was released and the day Ogle was discharged - all by prearrangement - only worked 10 or 11 days. This was hardly summer employment of school boys scheduled in advance of school closing "by prearrangement." The fact is Keating called new men in right away because whatever work he needed to have done - permanent or temporary - simply was still there and for some reason he no longer wanted Stennes - and maybe his friends - on the premises. Thus, the failure, in the total circumstances, of the asserted defense of discharge for cause, together with Keating's unlawful interrogation of employees, his direct knowledge of Stennes' leading role in the union movement, and the highly revealing timing of the events, conclusively prove illegal motive in Stennes' release on May 18. I find that by discharging Stennes the Respondent violated Section 8(aX3) of the Act. The very day after Stennes' discharge, Gerald Ridge, the president of the Respondent, appeared at the cemetery and spoke to all the employees assembled during the 3 p.m. coffeebreak. One employee - a full-timer - said Ridge had never done this before and has not done so since. Ridge admitted at the hearing he went to speak to the employees because Keating had told him of the union movement and that most of the talk leading to it was about pay raises. He spoke to them on that subject, explaining the Company's economic resources, and telling the men the superintendent would do what he could whenever possible on the matter of raises. For the least, this unprecedented act by the president serves to emphasize the fact it was the union activity of the moment which explains the immediate events, and not Keating's belated and unconvincing explanation. I also find that by interrogating employees as to whether they were attempting to form a union, by questioning employees as to the identity of prounion employees, by telling employees they would be required to perform more work under union conditions, and by telling them condi- tions of employment would be more onerous if they chose to be represented by a union, the Respondent violated Section 8(a)(l) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, have a close, intimate, 260 BLUE HILLS CEMETERY, INC. and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW i. By interrogating employees as to whether they were attempting to form a union, by questioning employees as to the identity of prounion employees, by telling employees they would be required to perform more work under union conditions, and by telling employees conditions of employ- ment would be more onerous if they chose to be represented by the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 2. By discharging Elliott Stennes the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(3) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER 2 The Respondent, Blue Hills Cemetery, Inc., Braintree, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Laborers International Union of America, Local 133, AFL-CIO, or any other labor organization of its employees by discharging employ- ees or otherwise discriminating against them in their employment conditions because of their membership in or activities in favor of the above-named or any other labor organization. (b) Interrogating employees as to whether they are attempting to form a union, questioning employees as to the identity of prounion employees, telling employees they will be required to perform more work under union conditions, or telling employees conditions of employment will be more onerous if they chose to be represented by a union. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form,join, or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Elliott Stennes immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make Stennes whole for any loss of pay or any benefits he may have suffered by reason of the Respon- dent's discrimination against him. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its place of business in Braintree, Massachu- setts, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by its representatives, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region I, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 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. 3 In the event that 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 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a hearing, that we violated the Federal law by discharging an employee because he engaged in union activities and by committing other illegal coercive acts: WE WILL NOT discourage membership in Laborers International Union of America, Local 113, AFL-CIO, or in any other labor organization of our employees by discharging any of our employees because of their membership in, support of, or activities in favor of the above-named or any other labor organization. WE WILL NOT interrogate our employees as to whether they are attempting to form a union. WE WILL NOT question our employees as to the identity of prounion employees. WE WILL NOT tell our employees they will be required to perform more work under union conditions. WE WILL NOT tell our employees conditions of employment will be more onerous if they chose to be represented by a union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their 261 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights to self-organization, to join or assist Laborers International Union of America, Local 113, AFL-CIO, or any other labor organization, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities. WE WILL offer Elliott Stennes immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position. WE WILL pay Elliott Stennes for any loss of earnings he may have suffered as a result of our discrimination against him, plus 6-percent interest. BLUE HILLS CEMETERY, INC. 262