Cox Fire Protection

National Labor Relations Board - Board Decisions

Sep 15, 1992

308 N.L.R.B. 793 (N.L.R.B. 1992)

793
308 NLRB No. 108
COX FIRE PROTECTION
1 The Charging Party has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
No exceptions were filed to the following findings of the judge:
that the Respondent’s foremen are not supervisors within the mean-
ing of Sec. 2(11) of the Act and are eligible to vote in any represen-
tation election; and that the Respondent violated the Act by interro-
gating employees about their union activities, threatening plant clo-
sure because of employees’ union activities, threatening to blackball
employees who support the Union, soliciting employees assistance to
obtain employee withdrawal of union authorization cards, and solicit-
ing an employee to sign a petition to withdraw union authorization
cards.
2 In agreeing with the judge’s finding that employee Husted was
not constructively discharged, we rely on Crystal Princeton Refining
Co., 222 NLRB 1068, 1069 (1976), in which the Board held that
in order to establish a constructive discharge, it is necessary to prove
(1) ‘‘that the burdens imposed on the employee ‘must cause, and be
intended to cause, a change in working conditions so difficult or un-
pleasant as to force [him] to resign,’’’ and (2) ‘‘that these burdens
were imposed because of the employee’s union activit[ies].’’ See
also Red Arrow Freight Lines, 289 NLRB 227 (1988). Here, we find
that these two elements have not been proven and, accordingly, af-
firm the judge’s recommendation.
Further, in agreeing with the judge’s finding that the suspension
of Husted on May 15, 1989, was not unlawful, we do not rely on
the judge’s observation that the lack of animosity between Cox, the
Respondent’s owner, and Husted is suggested by the fact that Husted
invited Cox and his family over to his home for a cookout.
3 That the complaint allegation is phrased as a threat of physical
harm rather than as one of reprisal, is immaterial. The latter threat
clearly is encompassed within the former.
4 As we note above, the test for an 8(a)(1) threat is an objective
one and Cox’s actual motive is irrelevant. Because it is not clear that
an employee would reasonably perceive Cox’s anger as directed at
Register’s union sympathies rather than his ‘‘gutter’’ remark, we
agree with the dismissal of this allegation.
5 Member Oviatt also finds, contrary to the judge and his col-
leagues, that the Respondent, acting through Supervisor Noble, vio-
lated Sec. 8(a)(1) on May 10, 1989, when Noble told employee Reg-
ister that he should take Register out and get him drunk so that Reg-
ister would miss work the following day and Noble could then fire
him, and on May 12, 1989, when Noble shoved Register several
times and invited Register to hit him. In Member Oviatt’s view, both
of these incidents were unlawful because they constituted coercion
directed toward Register because of his support for the Union. No-
ble’s May 10 remark conveyed to Register the Respondent’s wish
that it could find an excuse to discharge him because of Register’s
union activiity, and Noble’s May 12 physical confrontation with
Continued
Cox Fire Protection, Inc. and Sprinkler Fitters U.A.
Local 821, AFL–CIO. Case 12–CA–13389
September 15, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 30, 1991, Administrative Law Judge
William F. Jacobs issued the attached decision. The
Charging Party filed exceptions and the Respondent
filed a brief in response to those exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions only to the extent consistent with this decision
and to adopt the recommended Order as modified.
The judge found that the Respondent did not violate
the Act when the Respondent’s owner, Ron Cox, on
receiving the Union’s charge against the Respondent
alleging various violations of the Act, told employee
Frank Husted, in the presence of several other employ-
ees, ‘‘This isn’t a threat, but I want to kick your ass.’’
The judge found that Cox was merely expressing in
anger what he would like to do, but would not do, to
Husted, and therefore, as he made clear to Husted, he
was not threatening him. The Charging Party has ex-
cepted to these findings. We find merit in its excep-
tions.
The test is not one of intent, as the judge’s findings
suggest, but whether the threatened conduct has the
tendency to interfere with, restrain, or coerce the em-
ployees in the exercise of their Section 7 rights. Here,
Cox threatened Husted immediately on reviewing the
unfair labor practice charge filed against the Respond-
ent alleging, inter alia, that it had unlawfully sus-
pended Husted. Whether Cox meant his statement to
be taken literally or merely as a colorful figure of
speech used to express his feelings, the clear import of
Cox’s statement was that he wanted to retaliate against
Husted because he believed that Husted was respon-
sible for filing the charge.3 In this regard, when Husted
entered Cox’s office and asked what was happening,
Cox replied that Husted knew. Cox later called Husted
‘‘two-faced’’ and a ‘‘liar.’’ In addition, the record es-
tablishes that several employees were present in the of-
fice and had just read the union charge prior to Cox’s
threat to Husted.
Contrary to our dissenting colleague, we believe
that, notwithstanding Cox’s statement that ‘‘this isn’t a
threat,’’ Husted and the other listening employees
could reasonably fear that Cox was clearly disposed to
unfavorably exercising his authority as an employer
against any employee involved in the protected activity
of filing an unfair labor practice charge.4 The fact that
Cox did not elaborate on his metaphor by specifically
mentioning ‘‘forms of retaliation’’ does not, in our
view, significantly lessen the ominousness of the state-
ment coming from a company owner whose control
over the employees’ job security was virtually total.
Accordingly, we find that the Respondent, on May 25,
acting through Cox, violated Section 8(a)(1) by threat-
ening Husted.5
794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Register was an attempt by Noble to incite a basis on which to jus-
tify the discharge of Register.
1 I agree with my colleagues on every other issue.
2 Cox also expressed his anger to employee Register because of
the latter’s prounion views. He said that he would like to pick up
a cinder block, lying nearby, and hit Register with it. The judge
found that this was an expression of anger and not a threat. My col-
leagues agree with the judge. In explaning what they see as the dif-
ference between the statement to Register and the one to Husted, my
colleagues surmise that Cox was reacting to a comment by Register
that he would not mind seeing Cox put in the gutter if that was what
it took to get what Register wanted in the way of pay. However,
the judge found that Cox was expressing his displeasure with Reg-
ister’s prounion attitude. The judge found no violation because Cox
had no intention of hitting Register with the cement block and Reg-
ister knew this. Similarly, with respect to the remark to Husted, the
judge found that Cox had no intention of threatening Husted and that
Husted knew it. I would adopt both findings. My colleagues, some-
what inconsistently in my view, adopt the one finding but not the
other.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Cox
Fire Protection, Inc., Tampa, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 1(e) and reletter
the subsequent paragraphs.
‘‘(e) Threatening employees with physical harm be-
cause of their union activities.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER RAUDABAUGH, dissenting in part.
Unlike my colleagues, I would affirm the judge’s
finding that the comments of Respondent owner Cox
to employee Husted did not violate Section 8(a)(1).1
The evidence establishes that Cox made the com-
ments immediately after receiving an unfair labor prac-
tice charge which, inter alia, named Husted as a
discriminatee. Cox said to Husted, ‘‘This isn’t a threat,
but I want to kick your ass.’’ The issue is whether
Husted would reasonably believe that Cox would phys-
ically assault him or take other reprisals against him.
I do not believe that the General Counsel has estab-
lished this point. In this regard, I note initially that
Cox began by saying that he was not threatening
Husted. Indeed, the fact that Cox is 5 feet 7 inches tall
and Husted is 6 feet 4 inches tall and weighs 260
pounds would suggest that Husted could have no rea-
sonable fear of an assault by Cox.
In apparent recognition of the fact that physical
harm was neither threatened nor perceived, my col-
leagues suggest that Cox was referring to other, i.e.,
nonphysical, forms of retaliation. However, there is no
evidence, either in Cox’s remark or elsewhere, to sup-
port this contention. Indeed, the complaint alleges only
a threat of physical harm.
In sum, Cox was expressing his anger about the
charge but realized that he could do nothing about it.
In these circumstances, I would find no violation in
Cox’s remark.2
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 has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
In recognition of these rights we notify our employ-
ees that:
WE WILL NOT unlawfully interrogate employees
about their union activities.
WE WILL NOT threaten plant closure because of our
employees’ union activities.
WE WILL NOT threaten to blackball employees who
support the Union.
WE WILL NOT solicit employees’ assistance to obtain
employee withdrawal of union authorization cards.
WE WILL NOT solicit employees to sign petitions to
withdraw union authorization cards.
WE WILL NOT threaten employees with physical
harm because of their union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of a
labor organization.
COX FIRE PROTECTION, INC.
795COX FIRE PROTECTION
1 The Union.
2 All dates are in 1989 unless noted otherwise.
3 The Respondent or the Company.
4 The complaint alleges and the answer admits that the Board has
jurisdiction here and the Union is a labor organization within the
meaning of the Act.
5 Foreman Lawrence testified that he makes changes on the job
without first obtaining permission from his superiors. I find that he
could do so with regard to minor changes but not where costs were
affected. In either case, Lawrence has to advise his supervisors of
any changes at the end of the day.
E. Walter Bowman, Esq., of Tampa, Florida, for the General
Counsel.
William E. Sizemore, Esq. (Thompson, Sizemore and Gon-
zalez), of Tampa, Florida, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. This case
was tried before me in Tampa, Florida, on March 26, 27, and
28, 1990. The charge was filed by Sprinkler Fitters U.A.
Local 821, AFL–CIO1 on May 17, 1989,2 and complaint and
amended complaint issued on August 31 and February 7,
1990 respectively. The amended complaint alleges violations
of Section 8(a)(1) and (3). More specifically, it alleges that
Cox Fire Protection, Inc.3 violated Section 8(a)(1) of the Act
by unlawfully interrogating and threatening employees, solic-
iting employees’ assistance in obtaining employee with-
drawal of union authorization cards, soliciting an employee’s
signature on a petition seeking to withdraw union authoriza-
tion cards, creating the impression of surveillance, inflicting
bodily injury on an employee, attempting to instigate a phys-
ical confrontation with an employee, and implying that it
would be futile for the employees to select the Union as their
bargaining representative.
The amended complaint also alleges that Respondent vio-
lated Section 8(a)(1) and (3) by first suspending, then later
causing the termination of employee Frank Husted. The
amended complaint seeks a bargaining order.
Respondent, in its answer, admits to interrogating a limited
number of its employees but otherwise denies the commis-
sion of any unfair labor practices. Affirmatively, Respondent
alleges that the authorization cards relied on by the General
Counsel to demonstrate majority support of the Respondent’s
employees for the Union were tainted as a result of super-
visory involvement in their solicitation.
All parties were represented at the hearing and were af-
forded full opportunity to be heard and to present evidence
and argument. The General Counsel and Respondent filed
briefs. On the entire record, my observation of the demeanor
of the witnesses, and after giving due consideration to the
briefs, I make the following
FINDINGS OF FACT4
The Unit Question
The parties stipulated at the hearing that the following em-
ployees constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of the Act:
All sprinkler fitters, sprinkler fitter apprentices and
sprinkler fitter helpers employed by the Employer at its
8602 Temple Terrace Highway, Tampa, Florida facility,
but excluding all office clericals, professional employ-
ees, engineers, managerial employees, guards and su-
pervisors as defined in the Act.
The parties differ, however, as to whether fitter foremen
should be included in the unit. Respondent contends that they
should be excluded as supervisors within the meaning of
Section 2(11) of the Act. The General Counsel asserts that
they should he included as rank-and-file employees.
Ronald Cox and Kevin Rostetter own the Company and
are alone at the top of Respondent’s managerial hierarchy.
They are the bosses and everyone answers to them. Because
of their many duties, however, they are unable to visit the
Company’s various jobsites as often as needed. Cox and
Rostetter are admitted supervisors.
Clifford Noble is the field superintendent. Respondent
hired him because Cox and Rostetter were too busy to di-
rectly oversee the work in progress at the various worksites.
As superintendent, Noble supervises all employees. Each
morning, Respondent’s employees meet at the shop and
Noble tells the employees where to go, what to do, and what
equipment to take with them. The employees usually work
in crews of from two to six and Noble determines the num-
ber and makeup of each crew and which foreman should be
in charge. He also instructs the foreman where he wants the
fitters and helpers in that foreman’s crew to work. Instruc-
tions are that explicit. After receiving their instructions from
Noble, the foremen obtain the blueprints for the particular
job assigned to each of them, gather their crews who then
load the trucks, and then ride to their jobsites in the company
truck personally assigned to them.
After giving the employees their instructions at the regular
morning meeting, Noble goes out into the field and visits as
many jobsites as he is able. Depending on the number of
jobsites going at a particular time, the size of the job, and
its distance from the shop, Noble visits a site, sometimes ev-
eryday, sometimes only twice per week. These visits, which
do not last the entire day, are made to determine the amount
of progress achieved, so that the Company can send out its
monthly invoices based on the percentage of work com-
pleted, and to check up on the accuracy of the employees’
daily timesheets.
Occasionally, problems do arise at the jobsite, a change in
the plan, or a deviation from the blueprint, necessitated, per-
haps, by a conflict with the plans of another contractor. On
these occasions, the foreman on the job will call and consult
with Noble on the problem, in order to obtain directions be-
fore making any change in the specifications. If the change
results in the need for additional material or man-hours, the
foreman will make note and so report. If Noble is unavail-
able, the foreman will consult with Cox or Rostetter.5 In
cases where a problem arises following installation, Noble
will decide whether the job will have to be redone.
At the end of the day the various crews return to the shop,
report their progress to Noble, and submit their timesheets.
At this time, Noble advises them what they will be doing the
next day.
At the jobsite, Respondent’s employees usually work in
crews consisting of between two and six workers. There may
be one or more crews at a jobsite, each crew independently
working on a particular job. The foreman or foreman-fitter
796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Before Frank Husted was hired, he advised Respondent that he
had his own helper; if one were needed. A week or two after Husted
was hired and working as a fitter, not yet as a foreman, he told Cox
that he had an acquaintance, Scott Frey, who was ‘‘a good kid,’’
who needed a job. His friend was hired as his helper, both working
under their foreman, Brian Crawford. Since Husted was not a fore-
man at the time, the incident sheds no light on the authority of fore-
men. In another incident, an employee who had been laid off by Re-
spondent, showed up at the jobsite where Husted was foreman.
Husted called Cox and told him that the employee was there. Cox
replied that the employee was laid off. Husted argued that he could
use him, that because he was already at the jobsite, Cox should let
him work. Cox refused. Clearly, Husted had no authority to hire or
effectively recommend it.
7 The Crawford/Holloway incident.
is in charge of the job and is assisted by one or more fitters
or helpers. In situations where there are several crews work-
ing at a single jobsite, one foreman acts as leadman or push-
er for the entire jobsite but has no authority over the other
foremen insofar as the other foremen’s specific jobs are con-
cerned.
The foremen act as conduits, communicating information
obtained from the general contractor’s superintendent to
Noble or Cox. They attend foremen’s meetings, usually held
in the general contractor’s trailer, where the general contrac-
tor, once per week, lets the foremen of the various trades
know what work he intends to achieve in the forthcoming
several days. Thus, coordination and scheduling problems are
worked out among the carpenters, electricians, sprinklers, and
other trades. The information obtained at these meetings are
duly reported by the foremen in charge to Cox and Noble.
Foremen are responsible for ordering and receiving mate-
rials at the jobsites. Receipts are turned in to the office at
the end of the day.
During the time period material, Respondent employed 16
employees—6 foremen-fitters, 4 fitters, and 6 helpers. The
amount of time a foreman works with his tools as opposed
to performing foreman’s duties depends on the size of the
job and the number of crews with which he is working. Usu-
ally a foreman works 80 percent of the time hanging pipe
and is expected to produce about as much as the fitters. In
more unusual situations where there are several jobs at the
same worksite, and one of several foremen is in overall
charge, he will not do much manual labor himself.
Foremen are not always assigned to jobs as foremen but
are sometimes, especially during slack periods, assigned as
fitters to work for other foremen. Whenever this occurs, usu-
ally the foreman already on the job remains foreman and the
newly arrived foreman operates as a fitter, hanging pipe. The
foremen working as fitters suffer no decrease in wages. On
one occasion, a foreman left the project and a fitter took over
his duties. To this extent the jobs of foremen and fitters are
interchangeable.
Similarly, there is a fine line between the duties of the fit-
ters and the helpers. The primary duty of the fitter is to hang
pipe, and of the helper to hand things up to the fitter on the
ladder. Sometimes, however, they trade jobs because it is
hard to sit and pull on heavy wrenches all day long. After
a time, the helper will get up on the ladder and the fitter will
hand things up to the helper who is handling the wrench.
Each morning Noble assigns the foremen to their jobs, and
the fitters and helpers to their foremen. He may also assign
the fitters and helpers to particular areas at the jobsite and
to particular work. Precisely how that work is performed is
more under the immediate guidance of the foreman than
under his supervisory direction. On one isolated occasion,
Cox told one foreman to put the men to work wherever he
wanted, but this incident was an exception.
Although the fitters are assigned to work under foremen,
both follow the assignments received from Noble each morn-
ing, and both must be certain to perform their tasks in ac-
cordance with the plans, blueprints, and specifications.
The pay scale for employees who work for Respondent de-
pends, in part, on what they negotiate at the time of hire and,
in part, on their classifications. At the time material, foremen
were receiving an hourly wage between $8.50 and $10; fit-
ters between $5.50 and $7; and helpers between $4.50 and
$5. Other than the difference in pay scale, the foremen re-
ceive no benefits not received by the fitters and helpers ex-
cept that they are permitted the use of a company vehicle to
go to and from their homes to and from work.
Foremen have no authority to hire employees6 and play no
role in the hiring process. Nor do foremen have the authority
to fire. Ronald Cox testified that if a foreman did not want
a particular helper on his crew because of a personality
clash, he had the authority to fire that helper without first
talking to Cox. He added that he would not, in such a case,
overrule the foreman’s decision and hire the helper back the
next day. He added, however, that he, Cox, is ‘‘still the top
guy in the company and I would still like to know what is
going on.’’ Cox testified, further, that although it is not a re-
quirement, he likes the foremen to tell him before they fire
anyone. He stated that he always has the foreman send the
employee with whom he is displeased to the shop because
he likes to hear both sides of a story.
Several foremen testified concerning their authority to fire.
Frank Husted testified that he had no such authority imply-
ing, of course, that he had never been told he had the author-
ity to fire anyone. Daubrey Lawrence testified that he was
never told anything about his authority as foreman, that he
knew he was just a working foreman, basically running the
job of installing sprinkler systems. He stated specifically that
‘‘the foreman is not the guy that fires,’’ that he had no such
authority. Foreman Lawrence DiBlasio testified that he has
never dismissed anyone but understands that foremen do, in
fact, have that authority. DeBlasio cited an incident which
will be discussed infra.7 Foreman Brian Crawford testified
that, as foreman, he had authority to terminate employees
and, in fact, did so in the case of his roommate and best
friend, Kevin Holloway. Crawford, in his testimony, related
that Holloway had failed to show up for work one morning
and had been late on several occasions. Crawford went to
Cox, reported these facts to Cox and told him that he would
like to have Holloway terminated. When Holloway called the
shop that day, Cox told him Crawford had terminated him.
Crawford’s testimony is supported by documentation, a pay-
roll change notice indicating the discharge of Holloway, ef-
fective March 23, 1988, authorized by Crawford on the same
date and approved by Cox 2 days later. Crawford testified
that it was his usual practice, when he wants to fire someone,
to first go to Cox.
Shortly after Holloway was fired, he was rehired as a
welder. Respondent needed a welder and Crawford knew that
Holloway had done some welding in school. Apparently,
though it is not clear from the record, Crawford advised Cox
797COX FIRE PROTECTION
8 Phelps Community Medical Center, 295 NLRB 486 (1989).
of Holloway’s welding experience and he was brought back
in that capacity. As it turned out Holloway’s welding was
unsatisfactory and 2 to 3 weeks after his firing, he was put
back in the field as Crawford’s helper.
Ronald Cox testified that Frank Husted’s friend and help-
er, Scott Frey, worked for him for only 1 month. This was
at Port Charlotte. According to Cox, Husted had just gotten
started and was doing poorly, not getting a lot of work done,
so that Cox ‘‘got on his case.’’ Husted explained that Frey
was ‘‘a green helper,’’ just starting in the trade, and did not
know much, that he had to train him. Although Cox accepted
Husted’s explanation, there was no improvement in Husted
and Frey’s production for the next 2 or 3 weeks. Then, ac-
cording to Cox’s testimony, one morning about February 1,
Husted arrived at the shop without Frey and when Cox asked
Husted where Frey was, Husted replied that he had fired
Frey, that he ‘‘just wasn’t right for this business.’’
Husted, in rebuttal, denied that he had terminated Frey or
anyone else. He testified that Frey, at the time, was going
to school nights in Tampa and that when he heard that
Husted and he might be transferred to Orlando, he quit rather
than accept the transfer which would interfere with his edu-
cation. Husted testified that he told Cox these facts and that
he played no role in Frey’s termination.
I credit Husted’s version of the facts surrounding Frey’s
quitting his job. First, when Frey left the employ of Re-
spondent, Husted was still a fitter working for Crawford at
Port Charlotte with no authority to fire. Second, Husted was
transferred to Orlando shortly after Frey left, so that the tim-
ing supports Husted’s version of the facts. Third, Cox testi-
fied that before any terminations occurred, it was his policy
to be told beforehand, so that he could hear both sides and
this alleged sudden unilateral action on Husted’s part was not
only contrary to Cox’s stated policy but astonishingly drew
no objection from Cox. Finally, Respondent offered no docu-
mentation to support Cox’s version of the circumstances sur-
rounding Frey’s termination, as was offered in connection
with other discharges.
The last incident cited in connection with the alleged au-
thority of foremen to fire employees was described in Cox’s
testimony concerning Foreman Hal Mathews and his helper,
Richard Gunter. Cox testified that Mathews fired Gunter
claiming that Gunter was not working out on his crew. Mat-
hews filled out a payroll change notice with an employee ter-
mination form attached, noting that Gunter was discharged
effective April 6 for the reason that he was too slow in the
field. According to the document, Mathews authorized the
discharge, but neither Cox nor any other member of upper
management approved it.
Cox testified that he did not approve Gunter’s discharge,
but rather moved him into the shop and that is why he did
not sign the payroll change notice in the space provided for
his approval. In short, Cox refused to approve Mathews rec-
ommendation.
Cox’s testimony to the contrary notwithstanding, I find
that foremen do not have the authority, independently to dis-
charge nor even, effectively, to recommend discharge. As the
overseer of the work and work habits of employees on their
crews, foremen are in the best position to determine whether
or not their crewmembers are doing well on the job. They,
as foremen, are expected to present to Cox, their opinions
with supporting evidence. Cox then investigates further, at-
tempting to hear both sides of the story, and reaches an inde-
pendent conclusion on whether or not to retain the particular
employee. As often as not, he will not agree with the fore-
man.
Thus, Cox chose to retain Gunter though Mathews would
have had him discharged. On the other hand, Cox chose to
discharge Holloway when Crawford, angry with his room-
mate, suggested he do so. However, in the latter case, I find
that because employees report to the shop each morning be-
fore proceeding to the jobsite, Cox was well aware of
Holloway’s record of absences and tardiness without having
to be told by Crawford. Thus, the decision to discharge
Holloway could have been and, in fact, was arrived at by
Cox, independently by simply referring to the timesheets,
following Crawford’s reminder and suggestion.
To reiterate, decisions to hire and fire are made independ-
ently by Cox, or other members of upper management, based
on information obtained from foremen and from other
sources, and foremen do not have authority to hire or fire,
or effectively to recommend such action.8
The record is clear that foremen have no authority to
transfer employees from one project, job, or area to another.
On the other hand, Cox testified that it frequently happens
that a foreman complains, for one reason or another, that he
no longer wishes to work with a particular individual any-
more and requests that he be taken off his crew. Cox stated
that in such cases, he honors those requests. Similarly, a
foreman may reject, beforehand, an employee whom he does
not want on his crew.
I do not find such situations necessarily to be indicia of
supervisoryship. Rather, I would find this system merely to
be an attempt by management to keep working conditions as
harmonious as possible.
Respondent maintains no formal system whereby foremen
issue written disciplinary notices, reprimands, or warnings.
Husted testified that he had no authority to discipline, rep-
rimand, or warn his crew members. In general conversations
with his superiors, he would give his opinion as to whether
or not they were doing well and his superiors would decide
what to do, if anything. Foreman Lawrence also testified that
he had no authority to issue reprimands or warnings or to
discipline crewmembers. He volunteered that if an employee
did not do as expected, he would suggest that that employee
be moved to another crew but added that such a situation had
never arisen while he was foreman with Respondent’s Com-
pany. Foreman DiBlasio agreed that no formal written sys-
tems of warnings existed but testified that if he felt a mem-
ber of his crew was not performing adequately, he would tell
him so and threaten to get him removed from the crew.
There is also testimony in the record that Foreman Crawford
verbally criticized one of his crewmembers.
I find that foremen do not have authority to formally dis-
cipline, reprimand, or issue warnings to their crewmembers
but may criticize them if they fail to perform their tasks
properly. This is not sufficient to support a finding that they
are supervisors.
The record is clear that foremen cannot grant wage in-
creases. The question is whether they can effectively rec-
ommend them. With regard to this subject, Cox testified that
wage increases are granted on the basis of verbal rec-
798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 The second document offered was also an employee progress re-
port, this one dated June 2, 1988. In it, Foreman Kelly Childerish
appears to be (footnote continued) evaluating his helper. There was
no testimony concerning this document. Neither the foreman nor his
helper testified. I do not rely on it as evidence.
10 Employee Theresa Spaulding testified that her foreman, Brian
Crawford, could independently grant time off and make other work
related decisions without first obtaining permission from his superi-
ors. No foundation was laid for this testimony and no evidence in
the record indicates the basis for her testimony. Crawford did not
testify concerning these matters, and I do not rely on Spaulding’s
testimony.
ommendations or written evaluations. He noted that written
evaluations do not get done regularly because of a lack of
clerical support. According to Cox, written evaluations are
only done as a result of a foreman’s wanting a fitter or a
helper to get a raise because he is doing a good job. In that
case the foreman will ask for an employee progress report
form which he fills out and submits to management. The
form contains 16 descriptions of the employee’s work habits,
e.g., attendance, initiative, speed, accuracy, personal appear-
ance, etc., but no space to insert a recommendation for a
wage increase.
In support of Respondent’s position that the foremen have
authority to effectively recommend employees for wage in-
creases, Cox testified to just two such incidents. On one oc-
casion Foreman Lawrence advised Cox that employee Reg-
ister was doing a good job and ought to get a raise. Cox told
Lawrence that Register was missing work once or twice a
week and asked, ‘‘How can you give a man a raise and tell
him he is doing a good job when he doesn’t come to work?’’
Lawrence’s recommendation proved ineffective. After Reg-
ister was told he would not receive a wage increase and the
reason, he improved his attendance and a month or a month
and a half later he received a raise. According to Lawrence,
Register’s wage increase was not based on his recommenda-
tion. No paperwork was involved.
The second instance of a foreman allegedly effectively rec-
ommending a wage increase was testified to by Cox and
Crawford, and involved, once again, roommates Crawford
and Holloway. As noted supra, Crawford signed Holloway’s
discharge notice. On May 20, 1988, shortly after Holloway
returned to the field as Crawford’s helper, he was granted a
50-cent-per-hour wage increase. The reason for the wage in-
crease is not clear from the record. However, it was accom-
panied by one of just two employee progress reports, submit-
ted by Respondent to support its position that foremen effec-
tively recommend wage increases. This document, an evalua-
tion of Holloway’s work, was filled out and signed by
Crawford. At the bottom of the document is a note, also
dated May 20, 1988, signed by Cox, directing his secretary
to have Holloway granted a 50-cent increase in wages.
Crawford testified that as a result of his evaluation, Hollo-
way received the 50-cent-per-hour increase. He added that
whenever a foreman feels that an employee should be grant-
ed a wage increase he would request an evaluation form
from Cox, fill it out, and submit it to Cox, who decides if
he should grant a wage increase and, if so, how much. Thus,
Crawford’s testimony parroted that of Cox. However, when
examined as to whether other foremen followed the same
procedure, Crawford stated that he did not know. Under fur-
ther examination, Crawford admitted that he had not brought
in a more recent employee progress report because he had
not submitted one since Holloway’s, almost 2 years before.
In fact, he admitted, that was the only such form he had ever
filled out. His incredible explanation for this fact was that he
had never had a helper good enough to recommend for a
raise.
Crawford specifically denied that he and Cox decided to
let Crawford fill out this form on this single isolated occa-
sion in order to accommodate him, to make it appear to his
best friend, that Crawford was instrumental in obtaining a
wage increase for him, 2 months after getting him fired. De-
spite Crawford’s denial, I believe this is exactly what hap-
pened. The form, it should be noted, bears one space for a
signature, that of the foreman making the evaluation. There
is no printed portion on the form providing for a rec-
ommendation for a raise and no space for an approving offi-
cer’s signature. Similarly, there is no space for the signature
of the employee being evaluated. Despite the lack of space
for such entries, Cox wrote his message at the bottom of the
page providing for Holloway’s raise, and the document was
shown to Holloway and he signed it.
I conclude that the document submitted does not reflect a
standard practice claimed to be in existence at Respondent’s
place of business, whereby a foreman fills out an employee
progress report, for the purpose of recommending an em-
ployee for a raise. Rather, the document appears to be part
of an isolated incident, peculiar to the set of facts involving
the discharge of Holloway, his rehiring and the granting to
him of a wage increase. The document reflects the special
relationship between two close friends and an accommodat-
ing boss.
I conclude that Respondent’s foremen do not have the au-
thority, in the ordinary course of business, to effectively rec-
ommend wage increases. I find this conclusion supported by
the fact that Crawford never evaluated any employee nor rec-
ommended anyone for a raise except to the extent he was in-
volved in the very special circumstances described imme-
diately above; that Foreman Husted credibly testified that he
never evaluated any employee for any purpose whatsoever;
that Foreman Lawrence never wrote out any performance ap-
praisals; and that Respondent offered only two9 documents,
both almost 2 years old, to support its claim that a formal
employee progress evaluation system existed. If, indeed,
there were additional employee progress reports in existence,
Respondent would have offered them into evidence. I there-
fore draw the adverse inherence that no such documents exist
and that none of the foremen ever submitted such documents
or relied on such documents to seek wage increases for em-
ployees.
Foreman Husted and Lawrence both testified that they
could not assign overtime or direct employees to work over-
time, that overtime had to be assigned by upper management.
Husted testified that on occasions when other trades were
working overtime, he was required to call the shop and in-
form Cox of the circumstances and Cox would decide what
was to be done. Both Lawrence and Husted testified that
they never granted time off but if and when asked by an em-
ployee for time off, they would and did advise them to ob-
tain permission from Noble or Cox.10
Husted credibly testified that he sometimes filled out a
timesheet for his helper but did not maintain payroll records
for his crew, rather everyone kept his own. Lawrence also
799COX FIRE PROTECTION
testified that he did not keep payroll records or timecards for
employees. Cox confirmed the fact that sometimes helpers
would fill out their own timesheets.
Both Husted and Lawrence testified that they did not en-
tertain grievances or complaints. Both agreed that employees
with such problems would be directed to Noble or Cox.
From the above-described testimony and documentary evi-
dence, I conclude that Respondent’s foremen are not super-
visors within the meaning of Section 2(11) of the Act and
are eligible to vote in any representation election conducted
by the NLRB.
The Unfair Labor Practices
The Respondent has been engaged as a sprinkler system
contractor in the construction industry since 1985. In April
1989, one of its employees, Daubrey Lawrence, decided to
attempt to organize the employees on behalf of the Union.
He talked to several of them concerning the benefits of union
representation and membership and asked them to sign union
cards.
Lawrence obtained the cards from the Union, distributed
them, and obtained the first signatures on April 24 from em-
ployees Register and McCord while on the Westside Cross-
ing project in Orlando. Lawrence collected the cards and re-
turned them to Mike Woods, the union business agent, who
was also at the jobsite.
On April 28, Lawrence met with and obtained signatures
on union cards from employees DiBlasio and Husted and got
around to signing one himself. He also invited these two em-
ployees to meet the following morning for breakfast at the
Holiday Inn in Tampa with agents of the Union who sup-
plied them with pamphlets and other materials. Their signed
cards were returned to the Union at that time. Apparently, ar-
rangements were made at this meeting for another meeting
to be held with other employees the following Monday, May
1, at Sunny’s Barbeque near the Westside project in Orlando.
At noon, that Monday, Union Agents Chaires and Woods
met with seven of Respondent’s employees. Among those in
attendance were employees Husted, Dennis and David Nel-
son, Daniel Barrow, Lawrence, DiBlasio, and Register. Law-
rence was responsible for the attendance of some or all the
other employees. Those employees in attendance, who had
not already signed cards, did so at the May 1 meeting. Ar-
rangements were apparently made for another meeting the
following day. Thereafter, Lawrence asked additional em-
ployees to attend that meeting.
At noon, May 2, 10 employees showed up at the same res-
taurant to meet with Chaires and Woods. Chaires addressed
those present and explained the benefits of union representa-
tion. He answered questions and either he or Lawrence dis-
tributed authorization cards to those who had not already
signed. Crawford, Spaulding, and Davis signed cards and re-
turned them to Chaires. With these additional signatures, a
majority of Respondent’s employees had signed cards. Ar-
rangements were made for another meeting scheduled for the
following day at the same place.
On the evening of May 2, Theresa Spaulding arrived at
home after work and told her husband that she and some of
Respondent’s other employees had signed up with the Union
that day at lunchtime. He told her that he did not think that
what she had done was a good idea, that it was wrong, and
that she should call Cox and tell him what she had done. He
also advised her to try and get her union card hack.
Following her conversation with her husband, Spaulding
called her brother and told him that she had signed a union
card. He advised her that what she had done was one of the
biggest mistakes of her life and that she should call Cox and
tell him what she had done. Just as her husband had done,
her brother told her that she should try to get her card back.
Following these two conversations, she called Cox and
told him how the employees had met with the union orga-
nizer at lunch that day and had all signed cards. She named
the employees involved and apologized for her participation.
Cox testified that he was shocked and upset at the news he
received from Spaulding that his employees were organizing.
Spaulding’s call was the first indication he had received con-
cerning the Union’s campaign.
Meanwhile, Brian Crawford arrived home on the evening
of May 2 and told his father that he had signed a union card
that day. His father called him an idiot and explained why
he felt that Crawford had made a mistake.
After her call to Cox, Spaulding called Crawford, her fore-
man, and admitted to him that she had informed Cox about
the meeting and signing of cards. Crawford, in turn, told
Spaulding of his father’s reaction and advised her that he in-
tended to call Cox himself.
After speaking with Spaulding, Crawford called Cox, but
no one answered. He therefore left a message on Cox’s an-
swering machine. When Cox, shortly thereafter, discovered
the message on his machine, he attempted to call Crawford
but found his phone was busy. He therefore walked over to
Crawford’s home and the two discussed the situation.
Crawford volunteered to Cox that he had signed a union
card and apologized for having done so. He said that he and
Spaulding intended to get their cards back and would try to
get the other card signers to do the same. According to
Crawford, although Cox appeared agitated and upset, he
made no threats. After the brief conversation, Cox said that
he had to go and that he would see Crawford in the morning.
On the way home from Crawford’s house, Cox stopped off
at DiBlasio’s home. Cox asked DiBlasio if he had heard
from either Spaulding or Crawford. DiBlasio replied that he
had not, so Cox simply asked him outright if he had signed
a union card and DiBlasio admitted that he had. Cox then,
in a calm and detached manner, according to DiBlasio, ex-
plained to DiBlasio that he could not afford to pay union
wages. He then left.
Husted credibly testified that on the evening of May 2,
about 7 p.m., Cox called him at his home. Cox seemed
upset. He asked Husted what was going on. Husted asked,
in turn, what Cox was talking about. Cox charged that he
had heard that all the employees at the Orlando site had
signed union cards and asked if Husted had also signed one.
Husted admitted that what Cox had heard was true and that
he had, in fact, signed a card himself. Cox then informed
Husted that he had already met with his partners and they
had decided that nobody would receive a unionized check;
that the company would close its doors before it would open
a union shop. When Cox next asked Husted why he had
signed a union card, Husted replied that he wanted to hear
what the Union had to say. Cox then asked Husted to get
his union card back and added that if the ‘‘union stuff’’ were
dropped then, nothing would come of it, but if it were
800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Cox did denied that he ever threatened to close the shop or to
blackball employees because of their union activity.
12 At the hearing DiBlasio denied that Cox had ever threatened
him with any sort of physical abuse. I credit DiBlasio’s denial.
13 Spaulding denied calling Lawrence. I do not credit Spaulding’s
denial.
pushed, Cox would see to it that none of the employees
would work nonunion again.
Cox testified that he could not remember whether he had
called Husted on the evening of May 2 but would not deny
it.11 As noted, I credit Husted’s testimony and find that the
conversation occurred just as he described it.
After Cox hung up, Husted called Lawrence and told him
about Cox’s call to him. This was the first of six calls Law-
rence received that evening. According to Lawrence, the first
thing that Husted said was, ‘‘The shit hit the fan.’’ He went
on to explain that Cox had called him and threatened that he
would not pay a union dollar, that he would close the doors
before he would do so, that he would blackball, with other
nonunion companies, every employee who had signed a
union card. Thus, Lawrence’s testimony concerning this
phone call would tend to support Husted’s version of Cox’s
call to him.
The second call Lawrence received that evening was from
Cox, just about 5 minutes after he was done talking with
Husted. According to Lawrence, Cox sounded shook up and,
at the same time disgusted. He asked Lawrence what was
going on, and when Lawrence played dumb, Cox repeated
the question two or three times. Finally, Cox stated that he
knew about the Union trying to get into his company. He
told Lawrence that he could not afford to pay union scale be-
cause he was a little guy, was not big enough to pay a union
payroll, and would shut his doors before he would do so. He
then threatened to blackball Lawrence. Before hanging up
and saying he would see Lawrence in the morning he in-
structed him to get back his union card.
Cox admitted calling Lawrence on the evening of May 2
and questioning him as to what he knew about the Union and
whether he had signed a union card. He denied, however,
threatening to blackball him from the industry and likewise
denied threatening to close his shop because of his employ-
ees’ going union.
Lawrence next received a call from Register. Register dis-
cussed with him an earlier call he had received from Cox.
Although Lawrence, Register, and Cox all testified concern-
ing these two calls, the testimony is sketchy and unreliable.
To be noted, however, is the fact that Register did not ask
Lawrence for the return of his union card as did other em-
ployees who called later that evening.
The next call received by Lawrence that evening was from
DiBlasio. DiBlasio told Lawrence that Cox had just been to
his home and was crying and upset about the Union. He re-
lated that as he and Cox were discussing the Union, Cox ap-
parently gestured toward a block lying on the ground and
said that he ought to pick it up and hit DiBlasio along side
the head because of his going union. DiBlasio told Lawrence
that he backed up for fear Cox was really going to hit him.12
Lawrence went on to state that he was going to have to
back out of the union organizing campaign because he felt
sorry for Cox—his being upset and crying. He then asked for
the return of his union card. According to Lawrence,
DiBlasio told him on this occasion that Cox had also threat-
ened to blackball him.
After his conversation with DiBlasio, Lawrence received
calls from Crawford and Spaulding.13 Both asked for their
cards back, explaining that they felt sorry for Cox.
The following morning, May 3, according to Lawrence
and Husted, when the employees arrived at the shop, there
seemed to be a lot of tension in the air. Cox said nothing
about the Union, however, and the crew left the shop, as
usual, for the Orlando jobsite. However, after Husted fin-
ished loading his truck, and just as he was about to leave,
Cox remarked to him, ‘‘Don’t waste all afternoon at
Sunny’s.’’ Cox denied that there was any tension in the shop
that morning and testified that he knew that morning about
the union meeting scheduled for that day, at lunchtime, at
Sunny’s because a few of the employees, including Husted,
himself, had told him about it. He admitted also that he made
the remark attributed to him by Husted but maintains that it
was meant as a joke because he was under the impression
that the employees were going to ask for their cards back
during the scheduled luncheon meeting with Chaires. I credit
Cox with regard to this matter and find no violation.
Lawrence was initially unaware that Cox was going to
visit the Orlando jobsite that morning and did not expect him
because ordinarily Cox would advise his employees before-
hand and did not do so on this occasion. Later that morning,
however, he learned that Cox was going to be coming out
to the job so he advised Chaires about it. He also told
Chaires that Cox and Noble were watching everything the
employees were doing, that the employees were scared, and
that the meeting should be canceled. Chaires agreed. Cox ar-
rived at the jobsite sometime that morning. He remained for
about an hour and a half, then left. The meeting was not held
at Sunny’s. Cox did not visit Sunny’s, nor is there any rea-
son to believe that he intended to do so. Before Cox left,
Lawrence advised him that the union meeting had been can-
celed.
Chaires filed a petition for election, along with the signed
union cards as a supporting showing of interest, with the
Tampa Regional Office, shortly after noon, on May 3. That
evening, Spaulding called Chaires and asked him if there was
some way she could get the cards back. Chaires replied that
he had already turned the cards over to the Board and it was
out of his hands. DiBlasio, Dennis Nelson, and perhaps other
employees called Chaires to request that he return their cards
but in each case he told them that he could not do so.
Based on the calls he received from these employees
Chaires, later that evening, made calls of his own to other
employees to determine what was going on, that people were
calling him to have their cards returned. He concluded that
there was no longer support for the organizing drive, that al-
though Lawrence, Husted, Register, and Barrow still pro-
fessed support for the Union, the others had withdrawn their
support. He was convinced that his majority was dissemi-
nated and made no effort to revive it. Similarly, none of the
employees made any effort to revive the organizing cam-
paign.
On or about May 4 Respondent would have received a
copy of the petition for an election and on May 5, Spaulding
decided to try to get the union cards back and to avoid an
election if possible. She figured that if she wrote up a peti-
801COX FIRE PROTECTION
14 Cox had hired a labor attorney about this time. Reference to the
attorney, which appears in Register’s affidavit, clearly places the
statement in the context of union activity.
15 Noble’s version of the incident, completely different, is not
credited.
tion and went around the shop and asked the other employ-
ees to sign it, they could get their cards back. Before actually
drawing up a document, however, she asked Cox if it would
be all right. Cox replied that he could not have anything to
do with it but did not know if she could. She determined she
would go ahead and try.
Because Spaulding was aware that Crawford too was in
favor of getting the cards back, she sought his aid with the
project. They drew up a petition together which read as fol-
lows:
This is written notification of the following:
1. We the undersigned void all signature cards sub-
mitted to the union organizer.
2. We the undersigned refuse an election to consider
unionization.
3. We the undersigned will not attend an election to
consider unionization should one be scheduled.
Below this message were the typed names of 10 employees
together with their social security numbers which Spaulding
got from the employees listed or from the secretary who ba-
sically served management and other white collar personnel
in the office. The document provided a signature place for
each employee listed.
After drafting the document, Spaulding and Crawford gave
the draft to the secretary to type. After it was typed, both
Crawford and Spaulding signed the document. They then
went around the shop, showed the employees listed on the
document the petition, and told them that it would be in the
office on the secretary’s desk, and would they please take a
moment to read and sign it.
The names which Spaulding included on the list were all
of the field people she knew to be employed and whom she
believed to have signed union cards. When she left that
morning to go to the worksite she left the document with the
secretary to later send to the Union and never saw it again.
Of the 10 employees listed, 7 signed the petition. Husted,
Lawrence, and Register did not. When showing the petition
to the employees, Spaulding and Crawford advised them that
they could sign it or not. Register told Spaulding to get it
out of his face.
Cox denied having anything to do with the petition. Reg-
ister, however, credibly testified that one afternoon, in the
shop, after all the employees had returned from the field,
Cox asked him if he had signed the sheet to get his card
back. Register replied noncommittally that Cox had nothing
to worry about; that he was probably going to win anyway.
I credit Register’s testimony with regard to this incident.
Sometime during the week of May 8, one morning before
the employees left the shop for the jobsite, Noble and certain
other employees were waiting for Lawrence and Register to
report for work. Noble was pacing by the door and asked
rhetorically, ‘‘Where are them union fuckers.’’ Noble denied
making the remark.
Paragraph 8(a) of the complaint alleges:
Respondent, acting through Cliff Noble:
(a) On or about the week of May 8, 1989, at the Em-
ployer’s shop in Tampa, created an impression among
its employees that their union activities were under sur-
veillance by Respondent.
I find that by the week of May 8 everyone knew who
were prounion employees and who were not. There was no
reason for anyone to engage in surveillance or to give the
impression of surveillance and Noble did not do so by mak-
ing the remark attributed to him. Though I find he made the
remark, I find no violation.
On or about May 10, after the employees returned to the
shop from the jobsite, after work, Noble and Register were
engaged in conversation. Noble mentioned that the Company
had just spent $4000 on a lawyer14 and that he should take
Register out and get him drunk so that he would miss work
the following day and Noble could then fire him. Noble de-
nied making this remark. I find that although he made the
remark, Noble had no intention of taking Register out and
getting him drunk. The remark was pure badinage, not a
threat, and not violative of the Act.
On May 11, Lawrence quit his job with Respondent. The
complaint does not allege his departure to be a violation of
the Act.
On Friday, May 12, between 2 and 2:30 p.m., Noble came
out to the Orlando jobsite where several of Respondent’s
crews were working. Although 3:30 was the usual quitting
time, on Fridays the practice was to stop working at 2:30
p.m. to enable the employees to return to Tampa, to get and
cash their checks early. On this occasion, however, Noble
advised Respondent’s employees, including Husted and Reg-
ister, working as a crew, that they would have to work until
3:30 p.m. Husted and Register had already loaded their truck
and were ready to leave. Noble took the position that there
was still work to be done and an hour left of working time.
Register, believing that Noble was looking for a pretext for
firing them, said, ‘‘Cliff, the only reason you’re doing this
is because you don’t want us to vote in [the election].’’
Noble, whom the record indicates had had fights with em-
ployees in the past, moved toward Regigter, shoved him sev-
eral times and said, ‘‘Hit me, Mickey. Hit me.’’ Register just
walked away.15 Noble threatened to fire Husted and Register
if they left early. They did so anyhow but were not termi-
nated. The other crews worked until 3:30 p.m.
With respect to this incident, paragraph 8(c) of the com-
plaint alleges:
Respondent, acting through Cliff Noble:
(c) On or about May 12, 1989, at the Employer’s
jobsite in Orlando, inflicted bodily injury upon an em-
ployee and attempted to instigate a physical confronta-
tion because of the employee’s union activities.
I do not believe this incident was related to the union ac-
tivity of the employees involved. First, it was Register who
brought up the subject of the Union, not Noble. Second,
there was no union meeting or other activity scheduled for
that afternoon from which Husted and Register were being
kept. Third, all the employees were asked to work the extra
hour, not just prounion employees. Fourth, if Respondent
scheduled the extra hour of work in order to establish a pre-
text for firing Husted and Register, in the event they refused
802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 The incident here discussed was incorrectly dated May 18 in the
complaint.
17 Where Cox’s version of this incident differs from that of
Husted, the latter is credited. The four employees who witnessed the
conversation all denied that Cox threatened Husted. They did not,
however, deny that the above-quoted words were uttered.
18 Gem Urethane Corp., 284 NLRB 1349. (1987).
to work and left early, Respondent’s plan worked perfectly
for, indeed the two known prounion employees left early, but
were not terminated. Finally, the simple explanation is that
Noble, an excitable individual by all accounts, lost his tem-
per when Husted and Register refused his order to work until
3:30 p.m. I find no violation here.
On Friday, May 12, Husted was scheduled to take a pump
to the jobsite and pressure test the pipe system. He asked
Noble which pump to take because some of them were not
working. Noble indicated which one to take. When Husted
arrived at the jobsite and tried to operate the pump, he found
that it would not work. He called the shop and was told to
fix the pump. After spending 2 hours trying to fix the pump,
Husted called the shop again and was sent to work at another
location.
The following Monday, May 15, when Husted reported to
the shop, Noble asked him if he had tested the system.
Husted replied that he had not done so because the pump
was not working. When Noble began to shout at Husted, the
latter pointed out that Noble had told him to take that par-
ticular pump. Noble denied this and Husted accused him of
lying. After some additional argument Noble told Husted to
go home. Husted appealed to Rostetter who was standing
nearby, but Rostetter backed Noble and Husted left. During
this altercation there was no mention of the Union.
Later that day, Husted called the shop to ascertain his situ-
ation and was transferred to Cox who told him that every-
thing was straightened out and that he should report to work
the following day. He did so but lost 1 day’s pay due to the
suspension.
During the telephone conversation between Cox and
Husted, there appears to have been a total lack of animosity
between them. Husted invited Cox and his family over to his
home for a cookout. Later, he extended the invitation to sev-
eral other employees.
I find the suspension of Husted by Noble the direct result
of the pump altercation during which Husted called Noble a
liar and Noble again lost his temper. If Cox were looking for
a pretext to get rid of Husted, he might have relied on
Husted calling his superior a liar. Instead, he smoothed
things over and called Husted back to work.
On May 17 the Union filed a charge alleging the suspen-
sion of Husted and earlier incidents as violative of the Act
and requesting a bargaining order as part of the remedy. The
charge effectively blocked processing of the petition for elec-
tion.
Husted had advised Cox, some time prior to Friday, May
26, that he intended to take that day off to take his family
to Disneyworld. Because Friday was payday, Husted asked
if he could pick up his check the evening before. Cox grant-
ed this request.
On Thursday, May 25,16 after work, when Husted went to
Cox’s office to pick up his check, he found several employ-
ees there handing around a sheet of paper which was subse-
quently returned to Cox who then placed it on his desk.
Husted asked what was happening and Cox replied that
Husted knew. Husted pled that he did not know what Cox
was talking about, at which point Cox stood up and said,
‘‘This isn’t a threat, but I want to kick your ass.’’17 He then
told Husted that he was two-faced and a liar and that he did
not even want to talk with him anymore. He told Husted an-
grily, ‘‘Anything you have do do regarding work, you do it
through Cliff Noble or Kevin or whoever. Don’t talk to me
anymore.’’ Husted replied, ‘‘Look, can I just get my check
and I’ll go?’’ Cox replied, ‘‘You’ll get your check tomor-
row.’’
The sheet of paper that Cox had been passing around was
the Union’s charge against Respondent, filed May 17. It in-
cludes the allegation that Respondent suspended and/or ter-
minated Husted because of his union activities.
Feeling the strain, not only between himself and Cox, but
also between himself and the other employees present,
Husted simply said, ‘‘Okay.’’ He then left.
The complaint in paragraph 7(c) alleges that Respondent,
through Ron Cox, threatened an employee with physical
harm. This paragraph cleary refers to Cox’s statement, ‘‘This
isn’t a threat, but I want to kick your ass.’’
I do not consider Cox’s statement to be a threat. By mak-
ing this statement Cox was saying, in effect, that he was so
angry, that he would like to physically hurt Husted but, for
one reason or another, would not do so. And he did not. His
expression of anger, which is all it was,18 may have been
tempered by his knowledge that to follow through with the
action under contemplation would result in a charge of as-
sault and battery, a possible civil suit and a violation of the
Act. On the other hand, the fact that Cox is 5 feet 7 inches
tall while Husted stands 6 feet 4 inches and weighs 260
pounds may have been a consideration in his giving Husted
assurances that no such assault would take place. Whatever
the reason, Cox made it clear to Husted, that he was not
threatening him. I find no violation.
The following morning Husted came by and picked up his
check from Cox. He asked Cox if he could have the follow-
ing Monday off in addition to that day. Cox granted his re-
quest. Husted then left with his family for Orlando.
That weekend Husted met with Oscar Chaires and advised
him that he no longer wished to continue working for Re-
spondent. Chaires attempted to convince Husted to remain on
the payroll but Husted declined.
On Tuesday, May 30, Husted did not appear at the shop
as scheduled. Cox called him up and asked why he had not
shown up. He assured Husted that he had not been fired. Ac-
cording to Husted, he told Cox that he did not want to come
back to work because he felt he had been threatened. Ac-
cording to Cox, Husted said nothing about being threatened.
Rather, he said that there was no problem between Cox and
himself, but that he could not work for a drug addict, refer-
ring to Noble. I credit Cox as to the content of this conversa-
tion Husted did not work for Respondent thereafter and testi-
fied that the reasons included Noble’s drug habit which, at
times, adversely affected his attitude toward and treatment of
the employees, Cox’s threat, and the attitude of other em-
ployees toward him.
The complaint alleges that Cox threatened Husted with
physical harm and that when Husted quit his job because of
803COX FIRE PROTECTION
19 Cox denied making this statement, but I credit Register.
20 Cox denied threatening Register on this occasion but was not
examined as to whether or not he made the statement attributed to
him.
21 Tri Cast, Inc., 274 NLRB 377 (1985); Benjamin Coal Co. 294
NLRB 572 (1989).
22 Sorenson Lighted Controls, 286 NLRB 969 (1987).
23 M.P.C. Plating, 295 NLRB 583 (1989).
24 299 Lincoln Street, Inc., 292 NLRB 172 (1988).
25 Times Wire Co., 280 NLRB 19 (1986).
26 Ibid.
27 Christie Electric Corp., 284 NLRB 740 (1987); Times Wire Co.,
supra.
28 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
Continued
fear which was engendered by Cox’s threat, his quit was tan-
tamount to a constructive discharge. Because I have found no
threat, however, I find no constructive discharge.
Toward the end of May, Cox visited the Orlando jobsite
where Register was working above the ceiling on a ladder.
Cox shook the ladder to let Register know that he was
below, then engaged him in job-related conversation. Shortly
thereafter, Register said that he would like to talk with Cox.
Cox replied that there was nothing he could say to him, that
if he said anything, it would just get him in trouble and he
was afraid of going to jail. Register insisted that he would
still like to talk to Cox alone, so the latter agreed.
Register climbed down off the ladder and they both
walked outside. Register told Cox that he knew that Cox was
upset with him but that he was still in favor of the Union.
He explained that he had not seen his kids in a very long
time and the money he would make in the Union would en-
able him to do so. He said that he also wanted the union
benefits and insurance. Cox replied that he could never pay
union wages nor union insurance,19 because he could not af-
ford it and still bid jobs the way he had been doing. He said
he could not pay union wages and insurance and still get the
work; he could not stay in business. Register said that he
would put Cox in the gutter if that is what it would take to
see his kids, meaning, according to Register’s own testi-
mony, that it did not matter if Cox lost everything he had,
as long as Register got what he wanted. Cox, upset, replied,
‘‘Fuck you!’’ and pointing to a cinder block lying nearby,
on the ground, added; ‘‘I feel like picking that block up and
hitting you in the head with it.’’20
The complaint alleges, paragraph 7(d), that on the above-
described occasion, Respondent through Ron Cox, informed
an employee that he would never get insurance at Cox Fire
Protection, implying that it would be futile or the employees
to select the Union as their bargaining representative.
I find, however, that Cox’s explanation concerning his in-
ability to provide union insurance for his employees,
couched, as it was, in economic terms, as to what might hap-
pen if certain events occurred, was merely the Employer’s
permissible mention of possible effects of unionization and
not violative of the Act.21
The complaint alleges that Cox threatened Register when
he said, ‘‘I feel like picking that block up and hitting you
in the head with it.’’ I find it was not a threat but a statement
reflecting Cox’s displeasure and exasperation with Register’s
insistence on maintaining his prounion attitude. It was a
hard-nosed, give-and-take argument. Cox had no intention of
hitting Register with the cinder block and Register knew it.
I see no violation here.
Conclusions
I find that Respondent, on May 2, acting through Cox,
violated Section 8(a)(1) by interrogating employees DiBlasio,
Husted, and Lawrence about their union activities for no ap-
parent legitimate purpose while accompanying his interroga-
tion of them with threats of various kinds.22 Cox’s threats on
May 2 to close the plant23 and to blackball employees who
supported the Union24 were likewise violative of the Act. Fi-
nally, Cox’s solicitation of employees’ assistance, on that
date, to obtain employee withdrawal of union authorization
cards was violative of Section 8(a)(1) of the Act.25
I find, with regard to Cox’s solicitation of Register to sign
the petition to withdraw union authorization cards, on May
5, that by this act, Respondent violated Section 8(a)(1).26
I have found that Respondent, through Cox, committed
seven violations of Section 8(a)(1), six of them within the
space of a few hours, on the evening of May 2, immediately
after Cox heard of the organizing campaign that took place
earlier that day that resulted in a majority of his employees
signing union cards. Thereafter, Respondent committed no
violations except for the minor incident of May 5. I do not
consider these violations serious enough to warrant the grant-
ing of a bargaining order.27
THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth above, occurring in
connection with its operation described above, have a close,
intimate, 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
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By unlawfully interrogating its employees about their
union activities, threatening plant closure because of its em-
ployees’ union activities, threatening to blackball employees
who support the Union, soliciting employees’ assistance to
obtain employee withdrawal of union authorization cards,
and soliciting an employee to sign a petition to withdraw
union authorization cards, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act, I shall
recommend that it be ordered to cease and desist therefrom
and to take appropriate and affirmative action designed to ef-
fectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended28
804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
29 If this 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.’’
ORDER
The Respondent, Cox Fire Protection, Inc., Tampa, Flor-
ida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully interrogating employees about their union
activities.
(b) Threatening plant closure because of its employees’
union activities.
(c) Threatening to blackball employees who support the
Union.
(d) Soliciting employees’ assistance to obtain employee
withdrawal of union authorization cards.
(e) Soliciting employees to sign petitions to withdraw
union authorization cards.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its shop in Tampa, Florida, copies of the at-
tached notice marked ‘‘Appendix.’’29 Copies of the notice,
on forms provided by the Regional Director for Region 12,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.