San Francisco Funeral Service

National Labor Relations Board - Board Decisions

Aug 12, 1971

192 N.L.R.B. 616 (N.L.R.B. 1971)

616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mortuary Employees' Union, affiliated with Seafarers'
International Union of North America, AFL-CIO
(Cathay (Wah, Sang), d/b/a San Francisco Funeral
Service, Inc.) andJohn Hardin . Case 20-CB-2186
August 12, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND
KENNEDY
On April 28, 1971, Trial Examiner Henry S. Sahm
issued his Decision in the above-entitled proceeding,
finding that Respondent, had- engaged in and was
engaging in certain unfair labor practices within' the
meaning ' of `the ` National° Labor Relations Act, ' as
amended, and recommending that Respondent' cease
and desist `°therefrom ' and' take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions,
with a brief in support thereof, to the Trial Examiner's
Decision. The General Counsel filed limited cross-
exceptions and a brief in answer to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviwed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.2
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 Trial Examiner and hereby orders that
Respondent, Mortuary Employees' Union, affiliated
with Seafarers' International Union of North Ameri-
ca, AFL-CIO, its officers, agents, and representatives,
shall take the action set forth in the Trial Examiner's
recommended Order.3
1 Respondent has excepted to certain credibility findings made by the
Trial Examiner. It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188
F.2d 363 (C. A. 3). We have carefully examined the record and find no
basis for reversing his findings.
2 The General Counsel has taken limited exception to certain language
of the notice. We find merit in these exceptions and shall, accordingly,
modify the notice to conform to the fir.' `
3 Substitute the attached notice for the Trial Examiner 's notice.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY O!tDER OF'THE
''
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE, WILL NOT,, cause or , ,attempt to cause
discrimination in employment against John Har-
din, or any other employee of Cathay (Wah Sang),
d/b/a -San Francisco- Funeral Service, Inc., be-
cause of the refusal of Hardin or such other
employees to join our union at a time when he is
not under an obligation under Section 8(a)(3), of
the 'National Labor Relations ' Act. to become or
remain a member of our unionas a condition of
employment.
WE WILL pay to John Hardin any money he lost
as a result of his losing his job plus 6-percent
interest.
WE WILL NOT restrain or coerce employees in
the exercise of their rights under Section 7 of the
Act except to the extent that membership may be
legally required by valid contract.
MORTUARY EMPLOYEES'
UNION, AFFILIATED WITH
SEAFARERS'
INTERNATIONAL UNION
OF NORTH AMERICA,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
ual, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 13050 Federal Building, Box 36047, 450
Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-3197.
192 NLRB No. 90
SAN FRANCISCO FUNERAL SERVICE 617
TRIAL EXAMINER'S DECISION
HENRY S. S4WM, Trial Examiner: The complaint alleges
that the Respondent Union caused the employer to
discharge an employee for failure to join the Union and
that the Union thereby violated Section 8(bX2) since the
discharged employee was employed outside the bargainin&
unit and hence was not subject to the union security clause
of the collective-bargaining contract.
STATEMENT OF THE CASE
This, case, heard at San Francisco, California, com-
menced on January 19, 1971,1 and concluded on January
22, pursuant to a charge filed on February 9, 1970, and a
complaint issued November, 19, 1970. There is here
presented the question whether the alleged discriminatee, a
licensed mortician whom the Union claimed was perform-
ing the bargaining unit work of an undertaker, was required
to joie} the Mortuary Union under a union security clause
which - required all morticians to join the Union 31 days
after beginning employment.2,However, the Charging Party
employee contends he was not required to join the Union as
he was a management trainee, a category not encompassed
within the unit described in the collective-bargaining
agreement, or subject to the union security provision, so
that when the employer discharged him,at the Union's
insistence because of his refusal to join the Union, this was
a violation of Section 8(b)(2) of the Act.
Upon the entire , record in this proceeding, including
observation -of the witnesses, and after giving careful
consideration to the briefs filed by the parties, there are
hereby made the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
San Francisco Funeral Service, Inc., a California
corporation, herein referred to as the Mortuary, is owned
by Nicholas Daphne, who operates,three mortuaries in San
Francisco which, in 1970, made retail sales and rendered
services valued in excess of $500,000 and purchased and
received goods from suppliers located outside of California
valued in excess of $50,000, and is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Testimony
John Hardin, the alleged discriminatee, a licensed
embalmer, , was employed as an "office man and clerical
employee" on November 20, 1969, by Nicholas Daphne,
owner of three mortuaries doing business under the name
of San Francisco Funeral Service, Inc. Daphne has had a
collective-bargaining agreement with the Respondent
Union for over 20 years. Hardin described his duties as
follows: ". . . to attend the office ... doing clerical-work,
filing, answering the door [ofthe funeralparlor] ... taking
flowers [delivered to the funeral parlor] ... my job was
... primarily office help which entailed answering the
telephone . . . , attending the office duties," receiving
payments -and giving receipts, typing various - death
certificates and releases which permit the remains of the
deceased to be released by the family to the mortuary.
Hardin and Daphne-both testified that he was instructed by
his employer that- he was not to perform any duties'
encompassed within the jurisdiction of the Union. These
duties, which are to be performed only by employees within
the bargaining unit, are listed in article X of the collective-
bargaining agreement as follows:
1. Preparation and embalming of human remains.
2. Removal or shipping of bodies.
3. Dressing of bodies.
4. Laying of bodies in caskets.
5. Making funeral arrangements.
6. Selling of funeral merchandise.
7. Conducting of funerals.
8. Each establishment will be covered by either an
employee within the bargaining unit or by a member of
recognized management whenever, a body is J aid out
and available for visitation or viewing by the family or
friends between the hours of 7p.m. and l I p.m. This
does not apply to an establishment having a regularly
scheduled shift of a-member of the-collective bargaining
unit during-said hours.
The words "making funeral arrangements", as -used
in subparagraph 5 above shall be construed to mean the
actual discussion of funeral arrangements with the
family 'of the deceased. The following are to be
performed only by an employee within the bargaining
unit or a member of recognized management: (a)
Ordering lifters 'to work on- the Extra - Scale; (b)
obtaining the clothes of the deceased from the home of
the - deceased. (If either of these two duties are
performed on the Extra ;Scale by an employee within the
bargaining unit, they shall be performed for the same
charges as "Care of Office", rather than for the
"Making Funeral Arrangements" charge).
It is understood that other duties, such, as "phoning
in Newspaper notices", will not be considered "Making
Funeral Arrangements".
An exception to article X, immediately - above, is a
provision which permits a member of "recognized manage-
ment" to perform unit work: Recognized management is
defined in article XII as follows:
For the purpose of this agreement only persons
falling within one of the following categories will be
considered recognized management:
A. 'Family: Any direct descendant of present
management provided that they devote substantially
their full working time to the business of said funeral
establishment. `
B. Members of any partnership or elected officers
r All dates herein refer to the year 1970 except where otherwise apprentices, journeymen, -and master journeymen to become and remain
indicated. members of the Union.
2 See art. VII of the collective-bargaining agreement which requires
618 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD
of a corporation, limited to two (2) in any one (1)
establishment.
C. A letter listing-=the present management of Call
firms will be agreed upon.
No Funeral Director shall conduct funerals for
another Funeral Director for compensation, nor shall
any Funeral Director render any service or perform any
work, with or, without compensation, which service or
work is, agreed or contemplated herein to be performed
by anemployee within the bargaining unit. ,
Under article XII, the three mortuaries involved here
were permitted by the Union to have two managers.
Nicholas Daphne, the, owner, who is a licensed, embalmer,
and a second manager. -
Hardin was paid by Daphne a flat monthly salary of
$700, which is approximately $140 less per month than that
received by a master journeyman embalmer, whose salary
is based on a wage formula of $4.85 per. hour with
provisions for overtime. Hardin, who had worked as an
embalmer in Los Angeles for over 10years, testified that he
told Daphne he was willing to'work at this reduced salary as
it was his desire and ultimate goal to learn the management
end of the mortuary business.
When Hale F. Porter, secretary and business agent of the
Respondent Mortuary Employees Union -learned that
Hardin was employed by Daphne, he asked Hardin to
come to his office on November 28. Hardin's testimony
reads as follows: ,
The meeting was held...: I immediately explained to
Mr. Porter what my job capacity was with Mr. Daphne
and Mr. Porter acknowledged it butinsisted throughout
that I was, in , fact, performing unit work, that he
couldn't understand how I could be.working there as a
licensed embalmer and not embalming . I explained to
him, probably in, a little,more detail, exactly what I was
doing. That, is to say, what certificates ,I was typing out,
releases ,1 was preparing, and so forth.- Mr. Porter then
said he acknowledged this but then said it didn't make
any difference. I was rather puzzled :..,,he said I was
an ,embalmer, I was working in San Francisco and I had
to join,the union ... it didn't make any difference what
my duties were ... what I was doing.
Hardin testified he explained to Porter he was doing office
clerical work:-
* * I might say again what his response was to it that
he was quite adomet [sic] on the fact that it didn't make
any difference and that I was still an embalmer and that
he furthermore said I was performing unit work.... I
told him what our agreement was,; • exactly what the
arrangement was, and I told him that my purpose was
to, if possible, work into management. The option of
later joining the union, as an embalmer was a possibility
if the need arose ... [that I took the job even though]
there was a -hundred dollars difference in [the monthly]
salary., I felt at the time that since I had eleven or twelve
years of preparing body remains and doing managerial
supervisory work in Los Angeles, that I felt the need of
possibly , getting into management. The only way.I could
obtain this goal was to work for a large firm. I had
known of Mr. Daphne's firm, it's known , all over the
State and I figured this would be the logical place to go
to work. It meant a sacrifice in wages, but hardly that
much of a sacrifice considering the goal of getting into
-management and doing more than just backroom work,
as they refer to it.
Hardin had a second meeting with Union Official Porter
sometime in, December . His characterization of this
meeting was that they discussed the same things as at the
first meeting, namely, " ... his job with Daphne- and his
duties." Hardin's testimony follows:
I explained to him [Porter] again the whole situa-
tion... ^. he insisted, of course, I was in violation.... I
told him there had been an incident that may have
constituted a violation, that it was an extenuating thing
-and I said' furthermore, that I would advise him anytime
there was a violation'that occurred thereafter,, and a
letter was subsequently sent to him. Itwas either mailed
or given to'him... ['Porter] asked"nie whyI shouldn't
join the union that time as he-did the first time and
insisted too that I was violating the union contract and
he also mentioned that' a complaint would `be' filed
within'30 days.... I told him that I wasn't atthat,time
in the position to join- the union -because, of -my
agreement with Mr.'Daphne; that I wasn't performing
any union work; that there wasn't any need for me to
join the union at that time, and, 'I `old him again, after
his insistence that I was violating ' the union contract,
that I would write these events down, time, place and so
forth' and, I would submit to him, when these" events
occurred.... On the other, hand; being a licensed
embalmer and not wanting to, I guess you' could say,
put Mr. Porter at ease, try to convince him, I guess you
could say, that I wasn't consistently violating - the
contract without his knowledge-and'that's-whyl sent
him a letter and I guess that's why, I guess, you could
say I had a meeting with him.: "
The letter which Hardin subsequently wrote to Porter is
dated December 11, 1969, and reads is follows:
Mr. Hale F. Porter
Mortuary Employee's Union
337 Valencia St.
San Francisco, Ca. 94103
Dear Mr. Porter:
I- am presently employed by the San Francisco
Funeral Service. My job capacity is that of office-help,
i.e., consisting entirely and solely [sic] of office duties.
I am fully aware, under union-regulations, that tasks
consisting of 1. embalming, 2. removals, 3. directing, 4,
arranging (at need) 5. any duty listed in the union
contract to be performed by a licensed union member,
are prohibited under my present job classification with
the San Francisco Funeral Service.
If, in any event, my job status changes or any
subsequent violation occurs during my employment I
will notify your office immediately.
Sincerely,
Hardin,
Hardin, J.A.
I Church St. - '
San Francisco, Ca.
SAN FRANCISCO FUNERAL SERVICE 619
P.S. Please direct all correspondence to SF.F.S., I
Church'St.
Hardin, in explaining why he believed it was necessary'to
keep Porter fully' informed of any work he might perform
that came under =the jurisdiction of the- union employees
within the bargaining unit, testified that he needed Porter
and did not' want to'antagonize-him. He testified that in the
past he had come to San Francisco from Los Angeles
seeking work from Porter-3 "I wanted a relationship that
wasn't hostile. I didn't intend on'hiding anything from him
and I felt that for my own sake that if I ever neededa job in
the city, that there was no reason why I shouldn't go and
see him and keep a fairly decent relationship. I didn't want
to alienate' Mr. Porter." When- Hardin was asked on
redirect examination the reason he agreed to notify Porter
whenever -he did unit work, his answer was because "I
didn'twant to get into a squabble with the union. It may
have been that things didn't work out at Daphne's and I
certainly" didn't want to jeopardize any chance or
opportunity to get a job' elsewhere. The whole idea was for
[good] relationships and I had nothing to hide so I told him
that I would, and furthermore, Mr. Porter has been
apprised of every violation." Hardin continued:
I wasn't a member of the Union. I was a licensed
embalmer.... Mr. Porter got ahold of me, contacted
me on [November] 28th and he was insistent all along
that I join the union and I,told him that I couldn't under
my job arrangment with Mr: Daphne at the time and
that I would when I became an embalmer or started
doing unit work ... join the' Union. I would come
down and make application. But, my intentions were to
get into management and no longer wanted to perform
duties as a journeyman which would be`embalming and
performing other duties that I would have had to join
the Union to do.
On December 30, a third meeting was held at which
Hardin met with Porter at the offices of Porter's attorney,
Peter Adomeit. Hardin's testimony that they discussed
what the,duties were reads as follows:
My duties,, whether or not there were any violations,
and I explained to them as I had done before, that I
woud advise them of any violations ... Mr. Adomeit
did pose a question regarding 'ethics and operation at
the funeral home ... whether Mr. Daphne was doing
anything to violate any State law pertaining to the
handling of the remains and I told.him as far as I knew
his operation was ethical and that I would mention it
and write it down if I saw anything.... If you recall
the first meeting on November 28, and the second
meeting, after I explained to Porter my duties, he
insisted nevertheless I was violating the contract. All
along he had insisted I had violated the contract and I
assured him that if, I did I would write down these
events ... any violations, if there was a violation, I
would write it down. I would make a note of it and I
would-send hima letter.
Hardin's testimony continued as follows:
Mr. Porter insisted that I was violating the contract.
He said that he had people watching and ,that they saw
that I was an embalmer and that I was violating the
contract.. I never actually found out,what I was, doing
and he never said. For instance, embalming. I don't
think that he ever saw that. I embalmed a body or
prepared one ' or laid the remains out but he was
insistent on this and -I told him that I felt that it was
normally my duty to tell him that if I did do these things.
that he could submit a complaint. I never had the
opportunity to do this ... I told Mr. Porter and Mr.
Adomeit that there were occasions, one he was already
aware of, where I had violated the contract, but not
consistently. I was not, arranging services at at-need
situations, directing, embalming, driving,case,out.... I
wasn't doing these -things. I told him that I would make
note of these if I did. This is the whole thing.
Hardin admitted to three incidents where he had
performed so-called "unit work," which was within the
jurisdiction of union employees. The first occurred when a
pallbearer became faint and Hardin grabbed-the handle on
the coffin from this man and helped to carry the casket 15
to 20 feet from the mortuary to where it was placed in the
hearse. He estimated this took approximately 1 minute.
Hardin related, another incident which occurred in the
early part of January when he came to the mortuary and
found a Mr. Westly, a union employee, who was acting as a
"watcher" at a time when a body was laid- out-in the
mortuary. This union employee hadbeen hired by Daphne,
the owner, unbeknown to, Hardin, to attend the body from
6 to 9 p.m., in the event friends and family of the deceased
were to tome to the mortuary to, pay their respects. Hardin,
who was scheduled to work that evening, arrived at the
mortuary about 7 p.m., and not knowing that Daphne had
hired Westly to work as a "watcher" from 6 to 9 p.m., told
Westly that he could go home. When Daphne later learned
of this, he informed Hardin ofthe arrangement and paid
the watcher for the entire 3 hours for which he was hired.
Hardin, in explaining why he had dismissed Westly,
claimed he did not know there was a provision in the
collective-bargaining agreement that a union man must be
present when a body-is laid out in the mortuary.
A third incident occurred when Hardin hired profession-
al pallbearers (described- in the contract, as "lifters"), to
attend the coffin at a funeral. The hiring of such pallbearers
is unit work. During the 3 months that Hardin worked for
Daphne, these three incidents consumed, in the aggregate, a
total of approximately 2 1/4 hours: 2 hours 'when he
dismissed the watcher, Westly;,-10 minutes to hire the
professional pallbearers; and a few minutes ,to grasp the
coffin handle when a pallbearer became faint.
Although there-are-allegations in the record-that Hardin
performed "at-need" services, ,the testimony does not bear
out these.charges. When a customer comes into a funeral
parlor, he is met by either an employee or a member of
management. Since the circumstances surrounding funeral
arrangements require tact and consideration in dealing with
the bereaved of the deceased, oblique approaches are made
to determine whether, the customer seeks information with
regard to someone who has died. If it involves a death, this
3 Hardin testified that "ten years ago," he had registered with the
Respondent Union for referral to mortuaries. See art. VII of G.C. Exh. 2.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is' called in the mortuary business an "at need" situation,
which-is union or unit work. If, however, there is no death
involved, but rather a death is anticipated, or perhaps, a
customer , is making his own funeral arrangements for the
time when he- dies, this type - of situation has been
interpreted by the signatories to the collective-bargaining
agreement as a "pre-need" situation which is not classified
as unionor unit work.
The'= Union claims that Hardin did make funeral
arrangements in an' "at need" situation -involving the
"Oakes" family,, which was testified to, by Barcewski, an
embalmer 'employed by Daphne, who testified on behalf of
his union. See infta. Hardin denied the allegation, testifying
that he met customers at the door of the mortuary about six
times during , the 3 months 'he, was employed -by Daphne,
but as soon as-he was able to evaluate the situation at hand
as being an "at need" situation, he immediately turned the
customer over'to either a management official or a unit
employee. Barcewski's testimony that he saw Hardin
making arrangements for the Oakes funeral is not credited.
It is found that in talking to the Oakes family, as soon as
Hardin determined it was an "at need" situation, Daphne
took over .and completed the arrangements.. Hardin
testified that proof.of the fact that he was neither a unit
employee nor doing unit work is the fact that when he went
to work for Daphne, he never notified the California State
authorities of his intent to practice embalming, for which he
held a qualified State : license, nor did he ever display his
mortician's license at the mortuary, both of which are
requirements of the State of-California for anyone wishing
to perform the function of embalming. Hardin's denial that
he ever conducted a funeral, sold funeral merchandise, or
embalmed,- removed, transported, shipped, dressed, or laid
out a body in a casket during the 3 months he worked for
Daphne stands' uncontroverted, except J or -the three
incidents described above,-which Hardin admitted.
Nicholas Daphne is the owner of -the three mortuaries
doing business under- the name of San Francisco Funeral
Services. Daphne testified that:
Mr. Hardin was brought into the company around
November to take- office work and caretaker of- the
properties that we own, in all locations if necessary, and
specifically not to do whatever; any union work. If there
were cases ow-the floor, -I would be there, Mr. Poulos
would be there, our other manager, or a hired union
man brought in on extra pay.-... Our services are 90
percent of the time on Saturday nights and Sunday, the
day of the funeral. People do not come in on the week
nights as a rule.
Under the union contract, the mortuary is permitted to
have two managers, one of whom is Daphne. Managers can
do unit' work under the provisions of the collective-
bargaining agreement, but of the two managers, only
Daphne is qualified to do embalming. Daphne testified that
when he hires an embalmer, he is required by law to notify
the State.- However, he' did not `do so when Hardin "was
hired because he was not to perform any of the duties of a
mortician. Daphne described his hiring- of Hardin' as being
"just like hiring a clerical employee with -an embalmer's
4 Daphne testified that it took him about 7 to 8 minutes to arrive at the
Cathay Mortuary, which is where Hardin spent approximately 60 to 75
degree." Daphne stated that Hardin never did unit work
except in the few emergency and mistaken instances which
were testified to by Hardin above.
On February 3, Daphne received a telegram from the
Union notifying him that the Union would orderer strike if
he, did not discharge Hardin. A meeting was then held at
the Union's offices on February 5. Present were Daphne,
wife, daughter, and his attorney, J. Richard Thesing, Union
Officials Porter, Nosker, and their attorney, Peter Adomeit.
The first 45, minutes of the meeting was taken up with
matters other than that of Hardin. When it was. suggested
that Hardin, who was waiting outside of the hearing room,
be brought in, Porter stated that he did not want to discuss
the Hardin matter. Others in attendance at this meeting
prevailed upon Porter to allow ' Hardin, who had been
waiting outside for almost an hour, to be heard. Daphne's
version of what happened next reads as follows:
Well, it didn't take very long. This thing blew wide
open. The main thing in mind was when Mr. Porter
jumps up' from the table and waves his hands around his
head and very loud said, "I don't care what kind of
work he does and I don't care to hear it, All I know is
that man is to join the union or you have to fire him or
you will have a strike on tomorrow, morning at your
places. I don't care what kind of work he does
whatsoever. He's got a license in California and he can
not work in San Francisco"In other words, he [Porter]
was the boss, he was going to do' what he wanted ...
Mr. Thesing said, "Look, I'm willing to arbitrate. If you
think Mr. Hardin has done, these jobs, I'm willing to
bring this to an arbitration." Mr. Porter said, "I'm not
going to arbitrate this case whatsoever. I'm not going to
have anything, to do with it." [And then he left the
room] ... We thought he was going to come back. He
never did come back. We waited three or four minutes,
finally got up and [left].
I told Mr. Hardin that we can't take a strike and they
sure as hell are going to strike at 8 o'clock tomorrow
morning and,I just can't take it, the position I'm in right
now ... Mr. Hardin was dismissed ... about 6 that
night.
Daphne -testified that Hardin's job predecessors were
Merston O. Wong and a Mr. Wang, who were not
embalmers, and who had the same duties as Hardin. In
addition to their clerical tasks, they also met people at the
door, received, flowers sent to the mortuary and answered
the telephone. When these two men, as well as, Hardin,
worked as office clericals and' a customer came in to the
mortuary to inquire about funeral arrangements in an "at-
need" situation, and no union men were on duty, Daphne
testified-that he instructed them to telephone him or the
other manager and either Daphne or his manager would be
there in a matter of minutes and wait on the customer 4
Ken Nahigian, an embalmer who is a member of the
Respondent Union, has been employed by Daphne for over
5 years at the Church Street Mortuary. He testified that
Hardin told him "he was concerned about committing
percent of his working time.
SAN FRANCISCO FUNERAL SERVICE 621
violations of the embalmer's. contract ... and Fm [Hardin]
basically keeping track of, them. I don't like doing -it and
what am I going to do." Nahigian testified he never saw
Hardin making arrangementsfor or directing a funeral, but
he did see him.giving "assistance."
Joseph Braun, a member of the Chauffeurs, Union, has
been employed by Daphne for 7 years making removals of
bodies, obtaining various certificates, and performing
errands. When he was asked what he observed Hardin
doing, he answeredl, "He would meet people at the door and
go up the stairs [of the Cathay Mortuary ] to do some office
work."
Hale Porter has been secretary and business agent of the
Respondent Union for 6 years. About December 5, he
testified that he began to "suspect" that Hardin was doing
unit work. Each time he had a conversation with Hardin,
testified Porter, he kept a "tight" record of what was said.
On one such occasion, Porter recounted, how a union
member employed by Daphne,- had asked Hardin to put
cosmetics on a' corpse but he had refused as this was unit
work. Without specifying names or details, Porter testified,
"I got information 'back from the' men back at San
Francisco Funeral Service that they felt that Mr. Hardin
could be infringing 'upon unit work.... I was told- that it
was possible '-that he had been." Porter then testified that
between December 5 and 8, a union member employed by
Daphne had telephone to inform him that "there had been
a case laid out -between 'the hours of 7- and 11 by the name
of Deale and [Hardinn] had been on the floor by himself."
Porter then phoned Hardin and told him about the Deale
matter, whereupon Hardin admitted it was so. Porter
testified that he then notified Hardin he would have to join
the Union.5 The "Deale" and "Westly" incidents, the
record reveals, are one and the same. See above, and
Porter's. testimony immediately below, with respect to
Hardin being on the floor by himself "where a case was
available for viewing.,"
Porter, then testified about , a luncheon meeting he had
with Hardin on December 17. His testimony reads as
follows:
He told me he had to work things out with the
employer. That, he had information ... that I told him
that we would insist that he become a member'of the
union, and when the 31 days passed I had no alternative
but- to file a charge..... Hardin told me at that time
that he had in fact violated the agreement and that he
would write them all down. He told me, if I remember
correctly, that he had been ,asked by Mr. Daphne to
make funeral arrangements and that he had been asked
by Mr. Daphne to be on the floor by himself where a
case was available for viewing.
The next meeting between Porter and Hardin was on
December 30. Porter's testimony follows:
Mr. Hardin had indicated to me that he had
information regarding Mr. Daphne. I asked Mr. Hardin
in -view of the fact that there is a lawsuit against the
union with Mr. Daphne, that our attorney would be
interested in talking with anybody that has any
knowledge of Mr. Daphne and his business and I asked
Mr. Hardin if he would be agreeable' to discussing any
items with our attorney. Mr. Hardin said yes, hewould,
and I arranged for -a meeting .. -. basically the
discussion was that he was doing unit work, knew he
was in violation but he =was:going,to write -everything
down and he would have all of this information for the
union ... that he would .have information for the
union regarding Mr. Daphne, the way he worked, the
way Mr. Hardin worked and otherinformation that we
would be able to obtain and other information that the
union might be interested in.... Mr Hardin indicated
that he was performing unit work. He also indicated at
that time that he liked `the methods of Mr. Daphne's
business . If I remember correctly,he said he was- an
aggressive funeral director and, he liked his way of doing
business. That was one of the items and he would like a
part of this. He felt that this was the situation that he
would or could work into.
Porter then related his version of what occurred at the
February 5 meeting which culminated in Daphne's
discharging Hardin under threat of the Union calling a
strike if he did not do so. Porter testified as follows:
Well, [Adomeit ] ' said that Mr. Hardin was doing unit
work and he had to join the union. Mr : Thesing, at that
point, told me at that time, told me that it was a fact that
Mr. Hardin had been doing unit work, that he had only
done it a few times and that we could have some sort of
understanding and I, at that-point, said I do not care
how many times it was done, one time, a half a, time,
he's done it and he's going to join the union or we are
going to take action. The conversation 1 had about unit
work was with Mr. Thesing.
Poulos Barcewski, an embalmer employed by Daphne,
and who is a member' of the Union's executive committee,
was assigned- to the-Church Street Mortuary. While Hardin
was there, testified Barcewski, he- observed him making
funeral arrangements with a family named Oakes for a
member of their family who, had died: He said Hardin "set
the time and collected the money." Hardin credibly denied
this, as found above, stating that he took care of only the
Oake's funeral "pre-need" matters, but as soon' as he
learned their situation was "at-need,"' he had nothing
further to do with-the arrangements.
Barcewski also testified that in January 1970; Hardin had
once said to him, "I know I am violating the contract and
I'm keeping a record in this brown book " On-still-another
occasion, testified Barcewski, Hardin said to him,-"I'm kind
of getting boxed in. I'don't know what, to' do" 'to which
B a r c e w s k i testified he r e p l i e d , " Y o u got y o u r s e l f into it . ' . .
I said, in other words, you are a scab . He'said, "In other
words, you are calling' me a scab?' I said, `Well, you call it
what you mean."'
On rebuttal, Hardin testified that from the very outset
when he was first employed by Daphne,. Porter repeatedly
accused him of doing unit work. When Hardin asked Porter
what was the basis for these many accusations, Porter
would reply in general terms, testified Hardin,""He just said
that he was getting information."' Hardin denied he ever
discussed alleged violations of the contract with Barcewski,
5 It appears , that the only violation Porter knew of his own knowledge an emergency situation.
was when Hardin telephoned several funeral homes to secure pallbearers in
622 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
with the exception of the Westly or,Deale incident, which
are the same . Hardin declared that Barcewski was "gad-
flying me on the idea of working there and not belonging to
the union, which he was doing."- Hardin, also denied
Barcewski's testimony that Hardin never telephonedlhim at
the, Church Street Mortuary to make an "arrangement."
Hardin stated that he - called Barcewski "several times"
from the Cathay Mortuary to tell -him to come there in
order to-handle "at need" situations.
B. ,Contentions and Issue
The General Counsel contends that Hardin was an office
employee hired to' do nonunit work and that, when the
Respondent Union insisted that' Daphne discharge him
under the union security clause of their collective -bargain-
mg agreement, this was a violation of 'Section 8(b)(2) of the
Act because Hardin was not a member of the bargaining
unit . Hardin admits that, on three `occasions enumerated
above , he did' bargaining unit work . This, in itself, argues
Respondent, makes him ,ipso facto, a unit employee 'so that
when - he failed to join the -union 31 days after his
employment ,` the Union was legally justified in requesting
Daphne -to terminate , him. 'The issue then is whether or not
Hardin was a unit employee
C. Discussion and Conclusions
The Board from the very beginning has held that the
appropriateness of a bargaining unit is primarily deter-
mined on the basis of the mutuality of interest in the wages,
hours, and working - conditions of the group involved-.6 In
determining whether the requisite mutuality of interest
exists, the Board looks to such factors as-the duties, skills,
wage patterns, and working conditions of the employees
involved, the organization of the employer's business, and
any existing bargaining history. It is the Board's established
policy never to consider factors,unrelated-to work interests
and functions .7 Adoption, of Respondent's view would
constitute a departure - from these practices and would lead
to absurd and unreasonable results . Therefore , where an
employee is not covered -by. the unit described in a
collective-bargaining agreement containing a union securi-
ty provision, any discharge of, such excluded employee by
the. employer at the insistence of the Union for failure to
join the,Union ,is a violation of the Act .8
It is . admitted that Hardin performed duties within the
jurisdiction of the unit employees on three occasions
enumerated above. However, it is also uncontradicted , that
Hardin accepted employment , with Daphne in order to
learn the management end of --operating a mortuary.- It
would appear; therefore, that Hardin was a management-
trainee . As such, he was paid a salary although the other
e See e.g., Annual Reports of the 'National Labor Relations Board, 28th
Report (1963) at p. 51 , 17th Report (1952) at p. 56, and ' 2nd Report (1937)
at p. 123.
Ibid
s Consolidated Constructors & Builders, Inc., 365 NLRB 656, enfd. 406
F.2d 1081 (C.A. 1); Local 340, International Brotherhood of Potters, 175
NLRB No. 123; cf. Helms Bakeries, 171 NLRB No . 3, enfd. 422 F.2d 863
(C.A. 9); Kaiser Steel Corp., 125 NLRB 1039.
9 It appears there are no cases which have decided the question whether
the inclusion of a supervisor in the appropriate unit of nonsupervisory
employees is legally permissible. Cf. Honolulu Star Bulletin, Ltd, 126
employees in the--unit were paid on an hourly rate basis: It is
clear -that Hardin hoped eventually., to attain, management
status so that -his intereests as a management-.trainee were
materially different from those of the unit employees.
Moreover, his first and primary -interests, lay, with
management in that he hoped he would eventually stand in
the. position of a supervisor under the Act .9 Because he was
a management-trainee, his hopes- for eventually, obtaining
supervisory status connotes he did-;not have a significant
community of interest with-the unit'employees,,,in that he
did not spend a substantial portion of his time, performing
identical functions.'° The fact that Hardin did perform
some unit functions under the-extenuating,and casual
circumstances described . above does not automatically
convert, him, into a unit employee any more than a
supervisor who occasionally does unit work is thereby
required to join the Union. At most, Hardin's three isolated
and casual contract, breaches within a period of 3-months
cannot be a logical or sensible basis for holding that he
thereby was mechanistically transformed into a unit
employee. It seems that Porter was of the, belief that since
Hardin was a licensed `embalmer that this in itself required
him, to join the Union, this belief Js not well-founded.
Although Hardin was qualified to be an embalmer, the test
for inclusion in the unit is not one's qualifications but
rather the, functions he performs. The function of ,Hardin
was ,that 'of a management-trainee, which for the reasons
stated ,above, exclude him, from the unit. Therefore, for the
Respondent Union to obtain Hardin's ,discharge under the
circumstances in this proceeding was; a violation of Section
8(b)(2) and (1)(A)'of the Act.'1,
THE REMEDY
Having found that Respondent Union has',engaged in
unfair labor practices, it'shall be recommended that it cease
and desist therefrom and that it take `certain affirmative
action designed to effectuate the policies of the"Act. It shall
be recommended that the Respondent make Hardin whole
for any loss of pay he may have suffered as a-result of
Respondent having caused the said discriminatee'to be
deprived of his job by payment to him of a sum of money
plus interest, equal to that which he would have earned in
the position that he held before his discharge.12
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section -10(c) of the
Act, there is hereby issued the following recomruendedi 13
ORDER
Respondent, Mortuary Employees' Union, affiliated with
Seafarers' International -Union of North,, America,
AFL-CIO, its officers, agents, and representatives, shall:
NLRB 1012.
to Cf.`Transway, Inc., 153 NLRB 885.
11 See Case No. F-809, December 22, ,1958,44 LRRM-1047.
12 Isis Plumbing. & Heating Co., 138' NLRB 716; F. W. Woolworth
Company, 90 NLRB 289.
13 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.
SAN FRANCISCO FUNERAL SERVICE , 623
1. Cease and desist from:
(a) Causing or attempting to cause San Francisco Funeral
Service, Inc., to discriminate against John Hardin because
of the refusal of Hardin to join the Respondent Union at a
time when he is not under an obligation, under Section
8(a)(3) of the Act to become or remain a member of the
Respondent as a condition of employment.
(b) In any like or related manner restraining or-coercing
employees of San Francisco Funeral Service, Inc., or any
other employer within their territorial jurisdiction in the
exercise of rights guaranteed in Sections 7 and 8(b)(1)(A) of
the'Act.14
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) In accordance with the Remedy section of this
Decision, make John, Hardin whole for any loss in pay he
may have suffered because of said discrimination against
him.
(b) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full -reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act, and the Universal Military Training
and Service Act.
(c) Notify San Francisco Funeral Service, Inc., immedi-
ately in writing, that it withdraws all objections to the
i4 Local 327, Teamsters, 173 NLRB No. 220.
15 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 be changed to read
"Posted pursuant to a judgment of the United States Court of Appeals
Enforcing an Order of'the$National Labor Relations Board."
employment of John Hardin in ,the position he,held,at the
time of his discharge.
(d) Post at its offices and meeting halls, copies of the
attached notice marked "Appendix." 15 Copies of said
notice on forms furnished by the Regional, Director for
Region 20, -after being ,duly signed by an authorized
representative of Respondent, shall be,posted by Respon-
dent immediately upon receipt thereof, ,and maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said "notices are not altered,
defaced, or covered by any other material.
(e) Mail to Regional Director for Region 20 sufficient
signed copies of the, attached notice marked "Appendix"
for posting at San Francisco Funeral Service, Inc., at its
three mortuaries, if willing, in placesY where notices to its
employees are customarily posted. Copies of said notice, on
forms, provided by the Regional Director, shall after being
signed by the Respondent Union's representative, be
forthwith returned to the Regional Director for such
posting.
(f) Notify the Regional:D.irector for Region 20, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken-to comply herewith.16
16 In the event that this recommmeuded Order is adopted by the, Board,
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 20, in writing, within 20 days
from the date of this Order, what steps the Respondent has- taken to
comply herewith."