Chelsea Homes, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1990

298 N.L.R.B. 813 (N.L.R.B. 1990)

CHELSEA HOMES 813
Chelsea Homes, Inc. and United Brotherhood of
Carpenters and Joiners of America, Local
Union No . 1075, AFL-CIO. Cases 3-CA-14143
and 3-CA-14272
June 20, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On July 12, 1989, Administrative Law Judge
Robert T. Snyder issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended
Order.
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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.
Errors in judge's decision are noted and corrected
Since we agree with the judge that discnmmatees Morgan and Gordon
were handbilling on public property when the Respondent ordered them
to cease handbilhng and summoned the police to remove them, we find it
unnecessary to rely on the judge's alternative analysis that even if
Morgan and Gordon were trespassing, they had a right to be on the Re-
spondent's property under the balancing test announced in Fairmont
Hotel, 282 NLRB 139 (1986) In any event, we note that Fairmont Hotel
subsequently was clarified in Jean Country, 291 NLRB 11 (1988). Finally,
in adopting the judge's finding that the Respondent violated Sec 8(a)(3)
by accelerating the discharge of the plumbers, we do not rely on the
judge's subsidiary finding that the fact $9 an hour was crossed out on the
new plumbers' wage forms and $10 an hour written in was evidence that
the new plumbers held out for an additional dollar before agreeing to
begin work sooner than scheduled
2 In affirming the judge's finding that employees Gordon, Kellerhouse,
Pierse, and DeGroot were discharged in violation of Sec 8(a)(1) of the
Act for engaging in protected concerted activities, Member Cracraft does
not rely on Continental Pet Technologies, 291 NLRB 291 (1988), cited by
the judge Member Cracraft finds that case distinguishable from the in-
stant case In Continental Pet, the 8(a)(1) discharge of employee Reyna
that was found by the Board panel majority was neither alleged by the
General Counsel nor otherwise addressed in the first instance by the ad-
ministrative law judge But in the instant case, the 8(a)(l) group dis-
chaiige of the four employees named above was alleged by the General
Counsel in an amendment to the complaint made at the hearing, and the
material facts involving this additional allegation were clearly litigated
and subsequently analyzed by the judge. In light of the General Counsel's
amendment of the instant complaint at the hearing to include this allega-
tion, Member Cracraft finds it unnecessary to rely on the judge's finding
that the initial complaint was itself broad enough to encompass an allega-
tion that the discharge of these four employees constituted an independ-
ent violation of Sec . 8(a)(l)
Chairman Stephens and Member Devaney agree with the judge's find-
ings that the original complaint was sufficiently broad to encompass the
8(a)(1) 'discharge theory and that this theory was fully litigated. In the
circumstances here, Member Devaney considers it unnecessary to pass on
the Board's decision in Continental Pet
The Respondent has excepted to the judge's find-
ing that employee Morgan was unlawfully dis-
charged because he engaged in union activities. In
this regard, the Respondent argues that the judge
erred by failing to analyze Morgan's discharge
under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), and asserts that under
the dual-motive test outlined in Wright Line it has
shown an "independent nondiscriminatory basis for
terminating Morgan, apart from his union activi-
ties."3 Contrary to the Respondent, we find that
the judge was guided by the prinicples set out in
Wright Line in his analysis of Morgan's discharge
and, for the reasons set out below, we agree with
his conclusion that the Respondent violated Sec-
tion 8(a)(3) and (1) by its unlawful discharge of
Morgan.
Initially, we note that to meet its burden under
Wright Line and establish a prima facie case of un-
lawful discharge, the General Counsel must show
that the Respondent knew of the alleged discrimin-
atee's union activity and that its decision to dis-
charge the employee was motivated, at least in
part, by antiunion animus. In the present case, the
judge found that the Respondent knew of union ac-
tivity in the plant as of January 4, 1988, the date
that employees Morgan and Farber began passing
out union authorization cards. On the following
day, January' 5, the Respondent learned that
Morgan was on the in-plant organizing committee.
Further, the judge found evidence of antiunion
animus from the Respondent's surveillance of union
activities in May 1987 as well as from President
Fabri's threat at that time to close the' plant if the
Union came in. The judge found additional evi-
dence of the Respondent's antiunion animus from
Plant Manager Satkowski's January 5, 1988 state-
ment to the four other discriminatees explaining to
them why they were being discharged, i.e., that
they "shouldn't have got involved with the
Union."
The judge also found that the timing and circum-
stances surrounding Morgan's discharge were sus-
pect. In this regard, the judge found that Morgan
became an object of the Respondent's criticism on
January 6 when, responding to fellow union activ-
ist Farber's page, he went to Farber's work station
and witnessed Farber's dispute with his supervisor,
3 In Wright Line, 251 NLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir
1981), cert. denied 455 U S 989 (1982), the Board established a two-part
causation test in cases alleging violations of Sec 8(a)(3) turning on em-
ployer motivation Under the Wright Line analysis, the General Counsel
has the initial burden of establishing a prima facie showing that protected
activity was a "motivating factor" in the employer's decision Once the
General Counsel has met this burden, the burden shifts to the employer
to demonstrate that it would have taken the same action even in the ab-
sence of the protected activity
298 NLRB No. 119
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Marrocco. At that time Farber introduced him as
one of his union committeemen. Marrocco reported
this to the Respondent's vice president, Telesz, and
referred to Morgan as Farber's union representa-
tive. After Telesz warned Morgan that he did not
need him to be present "every time he talked to
one of his employees," and that he hoped Morgan
would refrain from doing so in the future, a warn-
ing we find to constitute an independent violation
of Section 8(a)(1),4 Marrocco asked Morgan if he
was "on incentive."5 Morgan responded that he
was not and that he did not want to be.
The next morning Satkowski summoned Morgan
to his office and told Morgan that he was now on
incentive. When Morgan said that he did not want
to go on incentive, Satkowski presented him with a
previously prepared document, dated (erroneously)
"1/7/87," which stated that Morgan refused to go
on incentive in the ceiling department. When
Morgan stated that he would probably be fired re-
gardless of whether he signed the document or not,
Satkowski replied only "we will see," and refused
to tell Morgan the consequences of signing or re-
fusing to sign the document. When Morgan signed
the document, Satkowski immediately told him he
was terminated. Morgan then asked if he could be
put in an hourly department. Satkowski replied
that there were no openings, but told Morgan that
he would call him when an hourly position became
available. At the hearing, Satkowski admitted that
he had failed to call Morgan when hourly rated
positions later became available. On the basis of
this evidence, noting particularly the timing and
evidence of animus, we agree with the judge that
the General Counsel has established a prima facie
case that the Respondent's discharge of Morgan
was motivated by Morgan's union activity and thus
violated Section 8(a)(3) and (1) of the Act.
In rebuttal, the Respondent asserts that the judge
failed to include in his analysis the fact that it was
4In adopting the judge's finding that the Respondent violated Sec
8(a)(1) by impliedly threatening Morgan with unspecified reprisals if he
continued to engage in concerted activities, we emphasize that Telesz
warned Morgan that he did not need Morgan to be present "every time
he talked to one of his employees" and that Telesz told Moran that he
"hoped" that Morgan would "refrain from it in the future." This warning
is sufficiently broad to encompass any situation in which Morgan would
be present at a time when the Respondent 's representatives talked to one
of its employees Clearly, there are, potentially, instances in which Mor-
gan's exercise of his Sec 7 rights may coincide with the Respondent's
wish to address employees in his presence Accordingly, we find that this
prohibition is overbroad and effectively chills Morgan's Sec 7 right to
engage in protected activities in concert with other employees for mutual
aid and protection
5 The Respondent maintained an incentive program in certain depart-
ments, including the ceiling department in which Morgan worked In
these departments new employees started work on an hourly basis, but
after a probationary period, usually 30 days, the employees were
switched to incentive. Under this program employees were expected to
finish a set amount of work within a 40-hour week and were paid a
weekly salary for that work
applying its nondiscriminatory policy that employ-
ees in the ceiling department were required to go
on incentive when it requested Morgan do so and
that its decision to terminate Morgan was justified
by his refusal. In support of its argument, the Re-
spondent notes that employees who worked in the
ceiling department were required to go on incen-
tive after a 30-day probationary period and that
Morgan was informed of this requirement when he
was hired. The Respondent also asserts that it re-
quired another employee in the ceiling department
to go on incentive the same day that Morgan re-
fused to do so.
We agree with the judge that the timing of the
Respondent's demand that Morgan go on incentive,
taken together with all the circumstances surround-
ing his dismissal, indicates that the Respondent's as-
serted reason for terminating Morgan was pretex-
tual. In this regard, we emphasize that although the
Respondent had a rule requiring probationary em-
ployees to go on incentive after 30 days, Morgan
had already worked as a probationary employee in
the ceiling department for 1 month in the summer
of 1987. Nevertheless, the Respondent did not re-
quire Morgan to go on incentive when he returned
to work in November even though he had already
worked the required probationary period. Further,
the Respondent did not require Morgan to go on
incentive until 45 days after he began his second
tenure of employment. Rather, the Respondent
only required Morgan to go on incentive immedi-
ately after it learned that he was on the in-plant or-
ganizing committee, after Telesz impliedly threat-
ened Morgan with unspecified reprisals for acting
on Farber's behalf and, significantly, after Mar-
rocco ascertained that Morgan did not want to go
on incentive. Thus, the timing of the Respondent's
demand that Morgan go on incentive indicates that
Morgan's involvement in union activities was the
real reason for his discharge.' In addition, as the
judge points out, the Respondent's request that
Morgan sign a document that had already been
prepared, its refusal to tell Morgan of the adverse
consequences of his refusal to go on incentive, and
its failure to recall Morgan when,hourly positions
became available are further evidence that the Re-
spondent's real purpose in requiring Morgan to go
on incentive was to terminate him. Thus, we find
that the Respondent has not carried its burden
under Wright Line and we adopt the judge's con-
clusion that the Respondent terminated Morgan in
retaliation for his union activities in violation of
Section 8(a)(3) and (1) of the Act.
CHELSEA HOMES
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Chelsea
Homes, Inc., Marlboro, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except that the attached
notice is substituted for that of the administrative
law judge.
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 ordered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees in regard to their hire,
tenure of employment, or other terms and condi-
tions of employment because they have become
members of or engaged in activities on behalf of
the United Brotherhood of Carpenters and Joiners
of America, Local Union No. 1075, AFL-CIO, or
any other labor organization, or because they en-
gaged in concerted activities for their mutual aid or
protection.
WE WILL NOT inform our employees they are
being discharged because they had gone to the
Union; direct them, under implied threats of un-
specified reprisal, to cease engaging in concerted
activities for their mutual aid or protection; threat-
en our employees because of their union activities
by telling them that support for a union and contin-
ued employment are not compatible; solicit, en-
courage, or provide assistance to our employees to
withdraw their union authorization card; and
demand, and summon local police to implement
our demand, that our employees remove them-
selves from public property and cease lawful hand-
billing on behalf of the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer William DeGroot, James
Gordon, Donald Kellerhouse, E. Shawn Pierse,
and Carl Morgan immediate and full reinstatement
to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or
privileges previously enjoyed and WE WILL make
them whole for any loss of earnings and other ben-
815
efits resulting from their discharge, less any net in-
terim earnings, plus interest.
WE WILL notify William DeGroot, James
Gordon, Donald Kellerhouse, E. Shawn Pierse,
and Carl Morgan that we have removed from our
files any reference to their discharge and that the
discharges will not be used against them in any
way.
CHELSEA HOMES, INC.
Thomas J. Sheridan, Esq. and Robert A. Ellison, Esq., for
the General Counsel.
Richard.Kohn, Esq. (Kohn, Bookstein & Karp, P.C.), of
Albany, New York, for the Respondent.
William Chiarito, Representative, of Amsterdam, New
York, for the Charging Party.
DECISION
STATEMENT OF THE CASE'
ROBERT T. SNYDER, Administrative Law Judge. This
case was heard by me on October 3, 4, and 5, 1988, at
Albany, New York. The amended consolidated com-
plaint, which issued on April 7, 1988,1 alleges that Chel-
sea Homes, Inc. (Respondent or Chelsea Homes) en-
gaged in various acts of interference with employee
rights to organize in violation of Section 8(a)(1) of the
Act, and discharged five named employees because of
their union activities on behalf of the Charging Union or
concerted activities in violation of Section 8(a)(3) and (1)
of the Act. During the hearing, the General Counsel suc-
cessfully moved to amend the complaint to allege an ad-
ditional act of interference with employee rights, an al-
leged threat to discharge certain named employees be-
cause they engaged in conduct protected by Section 7 of
the Act. Respondent filed an answer denying the conclu-
sionary allegations of violation of the Act set forth in the
complaint and during the hearing denied the amendment
asserting a further violation of the Act described above.
All parties were, given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to' file briefs. Gen-
eral Counsel and Respondent each filed posttrial briefs
which have been carefully considered. On the entire
record in the case, including my observation of the wit-
nesses, and their demeanor, I make the following
1 On May 4, 1988, the Regional Director for Region 3 had issued a
Report on Objections, Order Directing Hearing and Order Consolidating
Case 3-RC-9187 with the instant proceeding. The election, held as a unit
including the alleged discnminatees, and other employees employed at
Respondent's Marlboro Plant, see infra. was conducted on March 4,
1988, and resulted in a vote of 29 for Petitioner (the Charging Union) and
88 against Petitioner with 46 challenged ballots. Some of the objections
referred to at hearing tracked certain allegations in the complaint By
virtue of a stipulation entered into by the parties and approved by the
Regional Director in which agreement was reached that the Regional Di-
rector may set aside the election and direct a rerun of a time and place to
be determined, the Regional Director issued a new order, on September
23, 1988, severing the two cases, setting aside the election, directing a
rerun election, and withdrawing the prior order directing hearing and
consolidating the aforesaid R case with the instant proceeding
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a New York corporation with its princi-
pal office and place of business located at Route 9W in
the city of Marlboro, State of New York (the Marlboro
Plant or Plant) has been at all times material engaged at
the Marlboro Plant and at various onsite locations in the
sale, manufacture, installation, and finishing of modular
homes. During the 12-month period ending April 7,
1988, the date of issuance of the complaint; a representa-
tive period, Respondent realized gross revenues in excess
of $500,000, and during the same period sold and shipped
goods and products valued in excess of $50,000 from its
Marlboro Plant directly to points located outside the
State of New York. Respondent admits, and I find, that
it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
The complaint also alleges that Respondent orally
amended its answer at hearing to admit, and I find, that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent began operations in February 1987 at the
Marlboro Plant, gradually increasing its production of
modular homes to the point where by mid-1988 it was
employing in the area of 125 to 150 employees and pro-
ducing 4 houses, or 8 bottoms -(half houses) a day. Em-
ployee Wayne Farber testified that in May 1987, early in
this expansion to full production, about employees of Re-
spondent employed at the Marlboro Plant held a meeting
off premises to discuss commencing an organizing cam-
paign for the Charging Union. Although not testified to,
it is apparent they met with a union offical. The follow-
ing day the employees who had attended the meeting
were called upstairs to the office of Plant Manager John
Satkowski. Present for Respondent in addition to Sat-
kowski were Robert Telesz, vice president and director
of manufacturing; and Elliott Fabri, president. Fabri told
the employees he had called them together because of
the Union, that they didn't have to go this far, that they
could have worked something out amongst themselves-
whatever you wanted. All you had to do was to talk, let
us know what was wrong. The employees said they
wanted vacation time, sick pay, and more money. Fabri
said the Company had only been making homes for
about a month and the employees had to give them a
little more time to get organized and make some more
money. Fabri told the employees he had learned about
their involvement with the Union because he had seen
them enter the meeting location when he had been pass-
ing by or was sitting in his car in front of the establish-
ment.
Fabri asked for more time-he was working on a va-
cation and in a month's time would see what he could do
about giving them a raise of a dollar more an hour. None
of the employees received any increase in salary or other
benefits after this meeting. Farber also recalled, after
being directed to the subject area, that Fabri had told
them that if the Union came in, they would all be fired
and the Company would just hire new help. When
Farber and others present asked how the Company
could "fire them and still open up in the same business,"
Farber responded that he would just close the doors.
Employee James Gordon recalled that shortly after his
hire (on May 5, 1987) and before the employee union
meeting, he asked Telesz, out of curiosity, if he thought
there will ever be a union in the Plant. Telesz, who did
not contradict Gordon during his testimony, responded,
"they don't talk about unions here."
B. Union Activity Among Employees Commencing in
mid-December 1987 and the Events of January 4, 5,
and 7 Culminating in the Discharge of the
Alleged Discriminatees
Employee Carl A. Morgan, who started work as an
employee in the ceiling department in the summer of
1987, signed a union authorization card on November 30,
1987, which he had apparently received from a union
agent, probably General Representative William Chiar-
ito. On December 15, 1987, in the evening after work, a
number of employees met with Chiarito at the Kay Jax
Motel near the Plant. The employees were Morgan,
Farber, Donald Kellerhouse, and James Gordon, the
latter two employed as plumbers. They discussed cam-
paigning and getting cards signed at the Plant. Keller-
house and Gordon signed cards that evening. Morgan re-
ceived a batch of cards for distribution, according to
Charito's instructions, before or after work or onbreak.
Card distribution started at the Plant on Monday, Jan-
uary 4, 1988. Beginning in the parking lot before work
started and continuing at lunch and breaktime, Morgan
and Farber distributed cards for signing and return by
other employees. About 4.30 p.m. that day Morgan over-
heard a conversation being held on the plant floor be-
tween Telesz and Foreman Paul -Lapinski, an admitted
statutory supervisor. Morgan heard Telesz ask Lapinski
if he heard anything about the Union. Lapinski replied,
"nothing yet." Telesz was standing sideways to Morgan
and not looking at him and Lapinski had his back to
Morgan.
That same day, January 4, Morgan heard Telesz page
Foreman Pete Marrocco, another admitted statutory su-
pervisor, over the loudspeaker paging system at the
Plant. According to Morgan, what was unusual about
this event was the urgency apparent in Telesz' voice and
the fact that Marrocco was called to come to Telesz'
office "immediately, now." Marrocco was paged twice
in the same fashion.
At 6:55 a.m., the following day, January 5, Morgan,
accompanied by Gordon, hand-delivered two documents
to Plant Manager Satkowski in his office. One, a hand-
written letter dated January 5, 1988, signed by employee
Wayne Farber and addressed to Respondent, informed
the Company that Farber, a union committee member,
would not be in to work that day because he would be
in Albany, New York, at the office of the Board filing an
unfair labor practice charge against Chelsea Homes.2
2 The initial charge in this proceeding in Case 3-CA-14143 was, in
fact, filed by the Union on January 5, 1988
CHELSEA HOMES 817
The letter noted that it was a violation of Federal labor
laws to discriminate or terminate an employee for filing
an unfair labor practice charge. The name, title, and tele-
phone number of the Union's representative, Charito,
was added for the purpose of answering any questions.
The other document was a typed letter headed,
"Notice of Organization Activity" addressed to Chelsea
Homes from Chiarito with his title, affiliation, address,
and telephone number also listed. It described the activi-
ty underway in which many of Respondent's employees
had indicated an interest in the Union to represent them
in collective bargaining. It cautioned Chelsea that Feder-
al law forbids actions or statements that interfere with,
restrain, or coerce employees in the exercise of the rights
which it thus recited and which are set forth in Section 7
of the Act. The notice went on to cite the prohibitions
on employer conduct set forth in Section 8(a)(3) of the
Act. A fourth paragraph typed in capital letters warned
against any conduct that constitutes an unfair labor prac-
tice and, if engaged in, would result in the Union's taking
immediate action before the Board. The last paragraph
advised that the folowing employees were authorized
registered in-plant committee members. Named were
seven employees, including Donald Kellerhouse and
James Gordon, two of four plumbers alleged as discri-
minatees in the complaint, Carl Morgan, another alleged
discriminates, Wayne Farber, and Michael Morgan,
Carl's brother. The letter noted a copy had been dis-
patched certified mail on January 4 to the Marlboro
Plant.
Satkowski took the two documents and started to read
them in the employees' presence. Within a half-hour of
their delivery, Satkowski called Morgan back to his
office at approximately 7:30 a.m. and asked Morgan to
sign the two letters to verify that he, Satkowski, had re-
ceived them that day. Morgan complied.
Among employees who signed cards on January 5
were E. Shawn Pierse' and William DeGroot, who along
with Kellerhouse and Gordon, comprised the four em-
ployees who made up the plumbing department at the
Marlboro Plant. On January 4, at a restaurant across the
street from the plant, parking lot, Pierse heard from
Gordon that the employees were trying to get a union
together and were signing up people. Before the 7 a.m.
work starting time on January 5 in the company parking
lot, Pierse signed a card given to him by Carl Morgan.
Gordon was also present. After signing, Pierse returned
the card to Morgan. DeGroot had first signed a card
given to him by Gordon on January 4 during a conver-
sation at the restaurant across from the Plant in' which
Gordon had explained that a couple of guys from the
Plant were starting a union and had asked him to' sign.
DeGroot had failed to date that card, so the following
morning, before work, in the plant parking lot, when
Gordon brought that failing to his attention, he signed
and dated a new card provided to him by Gordon, who
had torn up and thrown away, the undated one.
Kellerhouse testified that while he did not solicit other
employees to sign union authorization cards, he did dis-
cuss the advantages of having a union at the Plant and
when other employees approached him, he sought out
information, attended the December 15 motel meeting
with the union representative, and afterward reported his
positive union feelings to the dozen odd employees who
had approached him. Kellerhouse also reported that
during work on January 5 some unusual events occurred
involving supervisors. For one thing, all foremen were
summoned, at one time, to the plant manager's office by
the public address system. For another, after his general
meeting, individual supervisors were called to Telesz'
and Satkowski's offices, individually, for unusually
lengthy periods of up to 45 minutes or longer. DeGroot
confirmed that it was more difficult to find a supervisor
that' day. Kellerhouse also noted that on January 5, 1988,
unlike the usual practice, the foremen did not come into
the break area or socialize with the men. After the noon
break, Kellerhouse and Foreman Marrocco were togeth-
er in the finish area where Kellerhouse worked on
plumbing and Marrocco supervised employees other than
plumbers. Kellerhouse testified, without contradiction
that Marrocco told him, "If you think you're going to
get a union in here, you're mistaken." Kellerhouse said,'
"What did you say?" Marrocco replied, "Never mind, I
shouldn't have said anything in the first place."
Both Production Foremen Richard Campisi and Peter
Marrocco who testified for Respondent, confirmed on
cross-examination that, on January 5, Telesz called meet-
ings of foremen to question them about their knowledge
of employee union activity. Marrocco, in particular, re-
called that Telesz went to each foreman to make these
inquiries. Campisi acknowledged that it was either on
January 4 or 5 that he found out that there was union
activity going on. Since he denied seeing union cards
being distributed on January 4, such knowledge could
have come only from a meeting or meetings held with
Telesz and/or Satkowski on January 4.
Gordon testified that at approximately 3:45 p.m. on
January 5, past the end of the regular workday, Rick
Campisi came up to him and Kellerhouse and told them
to go to John Satkowski's office when they had finished
with their work becoause he would like to talk to them.
Gordon and Kellerhouse who were finish plumbers,
straightened out their area, met up with Pierse and De-
Grdot, the two plumbers who worked in roughing on
work at the beginning of the line, and they all went up
to Satkowski's office.
According to Gordon, Satkowski was sitting behing
his desk when they arrived, but was not able to look at
them eye to eye during their stay in his office. He asked
them to take Chelsea tools or materials they might have
in their workboxes out, get their stuff togheter, and leave
the premises. Kellerman asked why they were being
asked to leave. Satkowski did not answer. Pierse asked
the question again. Satkowski now mumbled that they
should not have gotten involved in the Union. As he
spoke he was looking down at his desk, and did not
make eye contact with the men. On cross-examination,
Gordon could not recall if Campisi or another foreman,
Marrocco, was present in Satkowski's office during this
exchange, but then recalled seeing someone leave the
room out of the corner of his eye as Satkowski told them
to turn in their company tools.
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kellerhouse first testified that when Satkowski spoke
to the four of them in his office, no one else was present,
Rick Campisi having only escorted them to the bottom
of the stairs and then left them there. Later, on cross-ex-
amination , when his recollection had been refreshed by
an affidavit he gave the Board on January 6, the day
after the event, Kellerhouse now agreed that Campisi en-
tered the office with them and was there when Sat-
kowski spoke to them. As they entered, Satkowski was
writing something on a piece of paper at his desk. Pierse
asked, "What's the matter, John?" Satkowski answered,
"Any property that Chelsea owns, you leave here and
your property you take and you're all dismissed." Keller-
house asked, "What does that mean, we are fired?" Sat-
kowski said, "yes." Kellerhouse asked, "What's this
about, why is this," and in a low voice, Satkowski said,
"You know why." Kellerhouse asked, "Why is that?"
and Satkowski ' said, "because of the union." Satkowski
then told them to leave the property. When they went
downstairs to the plant to gather their things, Rick
Campisi approached them. The men told him they had
gotten fired. Campisi responded, "I had no idea this was
going to happen. This is all new to me." Campisi walked
them out the front door and as they were gathered in the
parking lot, a guard named Tom came over and said he
had nothing against them, but he was told to tell them if
they were not off the property, they are going to call the
police. The four men then left.
Pierse corroborated Gordon and Kellerman that in the
exit interview held on January 5, Satkowski, under his
breath and with his head down, told the four plumbers
when asked why they were directed to get their things
together and leave the premises that they should not
have messed with the Union. Pierce also corroborated
Kellerman that when he and DeGroot were at their
bench getting ready to leave, Campisi, who had directed
them to Satkowski's office, appeared surprised when
they told him they were just fired. Campisi told them he
did not know anything about it. Pierce also corroborated
Gordon that Campisi had gotten to them around 4 p.m.
to see Satkowski when they were done.3 Pierce further
recalled, that Campisi left them and did not accompany
them to Satkowski's office.
DeGroot also attributed to Satkowski the remarks,
made under his breath, you should not have gotten in-
volved with the Union, when the men asked why they
should clean out Chelsea Homes materials from their
boxes and leave the Plant. When they saw Campisi later,
he asked them what John wanted, and when they said
they were terminated, he said he had no idea what was
going on. DeGroot also recalled they were later told to
leave the parking lot by a company guard.
Carl Morgan testified that the following day, January
6, as he was finishing up work at 3:30 p.m., Wayne
Farber paged him to come to the trim department where
Farber worked. Morgan finished his cleanup and walked
to the trim area. He saw Farber in a discussion with
Foreman Pete Marrocco. He heard Farber ask, and Mar-
rocco decline, to sign his timesheet to release him from
work for the day. At this point Marrocco turned to
3 All punched out at either 4 08 or 4 12 p.m that day , January 5, 1988.
Morgan, pointed at him and said, "Tell your union rep,
whoever that might be, that Wayne is not done with his
work for the day, so I will refuse to sign his time sheet."
Morgan left and went back to his work station in the
ceiling department.
Wayne Farber testified he had called Carl Morgan on
the loudspeaker, as one of his committee members, after
his foreman, Pete Marrocco, had told him he had said he
had to go at the end of the workday, "Well, if you go,
don't bother coming back tomorrow." Morgan heard this
repeated after he arrived in Farber's work area. Farber
left and was not warned or disciplined for doing so.
When Morgan arrived back in his department, he saw
Paul Lapinski, his foreman, Marrocco, Campisi, Sat-
kowski, and Telesz engaged in a discussion. Morgan
heard Marrocco say something about Farber and saw
him hand over to Telesz Farber's timesheet. Morgan
then presented his timesheet to his foreman, Lapinski.
Lapinski signed it and as Morgan prepared to leave,
Telesz approached him. Telesz said he did not need
Morgan around to be a witness every time he talked to
one of his employees. Morgan asked why not. Telesz re-
sponded, "because we don't need it, and I hope you re-
frain from it in the future."
Before Morgan left work that day, January 6, Pete
Marrocco asked him if he was on incentive and Morgan
replied that he was not, he was hourly, and his foreman,
Paul Lapinski, knows he does not want to be on the in-
centive program. Lapinski, who was standing there,
shook his head, yes.
The following day, January 7, Carl Morgan rode to
work with his brother, Michael Morgan. Michael told
Carl that he heard Bob Telesz, John Satkowski, Pete
Marrocco, Rick Campisi, and Paul Lapinski talking
about putting Carl on incentive as of the following day
and that if he did not go, he would be put on the swing
department, an hourly department.
That morning, January 7, between 7 and 7:45 a.m.,
Carl Morgan, along with Paul Lapinski were both paged
to John Satkowski's office. When Morgan arrived, Sat-
kowski, in Lapinski's presence, told him as of today, he
was on the incentive program. Morgan said he did not
want to be on it. Satkowski said that the ceiling depart-
ment was an incentive department and that he had to go
on it. Morgan said he would like to be hourly because its
better than an incentive program and he did not see any-
thing when he was handed papers on hiring that said in-
centive was mandatory. Morgan later explained that he
made more money then people in his department on in-
centive because he got paid overtime. Satkowski opened
his desk drawer and got out a file on the incentive pro-
gram and said, "it's in writing. You signed for it when
you were hired that you were going on incentive after
30 days." Satkowski also showed Morgan a paper stating
that he refused to go on incentive in the ceiling depart-
ment. It was dated "1/7/87." Morgan testified that the
statement was already prepared when he arrived.
Morgan said that if he signed it, he'd probably get fired
and if he didn't he'd probably get fired. Satkowski said,
"we will see." At the time, Morgan testified he had in
CHELSEA HOMES 819
mind the conversation with his brother that morning.
Morgan then signed the document.
Immediately Satkowski told him to turn in his hardhat
and glasses and that he was terminated. Morgan said he
knew it was going to happen. Morgan did ask how come
he would not be put on an hourly position and Sat-
kowski stated there were no openings. He was then es-
corted out of the Plant by his foreman, Paul Lapinski.
On the way out, Lapinski asked him what the Union was
going to do for him, and Morgan said that it will give
him some job security. Lapinski said, "Nobody could
guarantee job security." Morgan said that he would not
be in the position he was in right then if the Union was
in.
Among other nonincentive pay departments at the
Plant are swing department, janitorial, and receiving.
On the same day, January 7, all the employees were
called to the lunchroom for a meeting held late in the
afternoon. Farber testified that Supervisors Marrocco
and Lapinski were present. Marrocco was asking him
questions as to why the men wanted a' union. Marrocco
said, "What good is a union going to do. All they're here
to do is take your money, dues, money or whatever."
Farber replied, "that maybe it will better a lot of us, the
people that's got family or whatever, you know, we get
benefits. We don't got nothing for benefits." Lapinski
then started cursing, and asked Farber why he was
working there, "you can't even read or write." He told
Farber, "If you don't like what you're doing, why don't
you go down the road and get another job, why are you
here?"
C. Subsequent Alleged Acts of Interference by
Respondent During the Union Campaign
Preceding the Election
1. Soliciting, encouraging, and providing assistance
to its employees to withdraw their union
authorization cards
In a letter addressed to "`Dear Chelsea Employee"
dated February 5, 1988, signed by Elliot J. Fabri, presi-
dent, prepared on Chelsea letterhead and distributed to
all employees, Fabri began by noting that "Some of you
have reported being pressured to sign a union authoriza-
tion card. Employees often sign these cards to satisfy a
friend or get a union booster off their backs, without re-
alizing that the cards are LEGAL DOCUMENTS, and
that signing them can have serious consequences." Fabri
goes on to inform employees of the consequences-com-
mitting themselves to union membership and to paying
union dues, initiation fee, assessments, to supporting a
recognition strike at the risk of charges, fines, and expul-
sion for failing to do so, and to providing a power of at-
torney authorizing the Union to act for them in all mat-
ters affecting employment status. The letter closes with a
plea to vote no in the upcoming NLRB election to
ensure freedom from the Union's claims.
In a second letter addressed similarly to each Chelsea
Home employee on Respondent letterhead and dated
February 8, 1988, Fabri begins by noting that several
employees have asked if it is possible to withdraw a
union authorization card they may have already signed.
Having checked with their attorneys, Fabri declares that
the employee can withdraw any card he may have
signed by sending a letter to the Union telling it he is re-
signing his membership and revoking any authorzation to
act on his behalf.
In a third paragraph, Fabri comments that the decision
to revoke an authorization card is entirely the employ-
ee's choice, but that the, employee has the right to do so.
In a fourth paragraph, Fabri writes, "If you wish to ex-
ercise your right to withdraw, I am enclosing a sample
withdrawal letter for you to send in the enclosed enve-
lope, pre-addressed to the union, c/o its Mr. Charito
[Keep a copy of the letter for your records]." In a final
paragraph, Fabri reminds the employee that even if he
decides not to withdraw his card, he should still vote no
in the secret-ballot election to keep Chelsea Homes free
of all the problems that a union will bring. Attached to
the letter distributed to all employees is a sample letter
dated February T , 1988, addressed to Charito, gener-
al representative, Carpenters Union, at the Union's office
in Amsterdam, New York, providing, "I am an employee
of Chelsea Homes, Inc. I do not wish to have your
Union represent me, and effective immediately, I resign
my membership and withdraw any authorization I may
have signed. Very truly yours."
2. Respondent restriction on employee distribution
of union literature outside the plant
Carl Morgan and James Gordon testified that on Feb-
ruary 25, 1988, at 6:30 a.m. they were handbilling leaflets
in favor of the Union on the shoulder of Route 9W in
Marlboro where it intersects with the entrance road to
the Chelsea Plant and its parking lot and three other un-
related factories. A short time later, as Gordon was
handbilling on the shoulder off Route 9W at the intersec-
tion, Morgan had gone 9 feet off the shoulder into the
entrance road to assist an employee whose car had
broken down in the roadway to help get it started. At
6:55 a.m., John Satkowski first approached Gordon and
told him to leave the road because it is Chelsea property.
Gordon explained that they, he and Morgan, had a 6-
foot easement that they were allowed to be on. Sat-
kowski then went down off the shoulder and told
Morgan to get off the property, that Chelesea Homes no
longer wanted them on its property. Morgan said he
would go back to their 6-foot easement for handbilling.
Morgan then informed the employee he would not help
finish fixing his car. Satkowski told Morgan, "we don't
care, we just want you off our property" and then went
into the Plant.
About 5 to 10 minutes later, two town of Marlboro
police officers drove up, and asked Morgan and Gordon
what they were doing. They told them they were hand-
billing. The officers said, "Well, could you please come
down off the road (Route 9W) about two more feet,"
and then they drove in towards the Plant. Morgan and
Gordon did as they were instructed, bringing them
slightly closer to the Chelsea Homes roadway. After
about 5 minutes, the officers returned. They told the men
that Chelsea did not want them on its property. Morgan
told the officers that according to their union representa-
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tives they had a 6-foot easement for handbilling. One of
the officers then called the police chief on his police
two-way radio. He heard the officer ask his chief if he
had spoken with Will Chiarito and he heard the answer,
yes, that the men had a 6-foot right-of-way for handbill-
ing, as long as they did not obstruct or hold up traffic.
Both Morgan and Gordon continued handbilling from
the shoulder of Route 9W off Chelsea property on that
day and thereafter until the March election without any
further incident.
D. Presentation of Company Defenses,- Claimed
Grounds for the Discharges and Denials of
Interference with Protected Rights
During its cross-examination of General Counsel wit-
nesses, Respondent first elicited evidence, which it later
supported with testimony and documents from its own
witnesses, seeking to establish grounds for the discharge
of the five alleged discriminatees unrelated to their union
activities but rather based on their work performance, re-
fusal to follow work rules, and insubordination.
James Gordon testified that on Monday, December 21,
1987, the four plumbers worked a ful workday and even
some overtime and that there was substantial work avail-
able. The records show three of them worked 9 or 9-1/4
hours and one worked 10-1/4 hours. On Thursday, De-
cember 2, Gordon recalled that after putting in a full
workday, and into overtime at 4 p.m., he and the other
three plumbers were for the first time asked to stay to
finish a house because it had to be shipped out. They
were tired and estimated that it would take a long time,
6 hours or more to finish the house. Gordon testified that
after receiving the request from either his foreman or
John Satkowski, the plumbers got together, talked about
it, and determined it was very inconsiderate to first ask
them a half hour into overtime and then walked out in a
group. The timecards show the four workers punched
out at 5:12 p.m.
Gordon was further questioned about a company offer
to pay them overtime at time-and-a-half for work per-
formed over 8 hours in the day, although company
policy was to pay such overtime pay only for time
worked in excess of 40 hours in a week. Since the Christ-
mas holiday fell later in the week of December 21, with
a half day off, on December 24, and the holiday itself on
December 25, the men would not have exceeded 40
hours work that week even with overtime work on De-
cember 22. Gordon acknowledged that Satkowski had
committed the Company to pay overtime if they stayed
and completed the work. Gordon disputed that the men
ever agreed to such an arrangement and stated that, in
spite of the offer, the four of them walked out together.
Before leaving, Gordon testified that he personally went
up to either John Satkowski or Rick Campisi and told
him he was really sorry, but he did not think this is fair
at all to ask us after we're already put in a full day's
work plus to have us work another 6 hours. Gordon re-
called telling this to John Satkowski in the parking lot
and receiving the response, "I don't blame you."
Donald Kellerhouse, who worked alongside Gordon
in final, doing work on the plumbing for the houses, cor-
roborated Gordon's recital regarding the late timing of
the request to stay, lengthy overtime anticipated to at
least 10 p.m., and the offer made by Satkowski to pay
overtime for the extra work. In particular, Kellerhouse
recalled that at first the company position, expressed by
Satkowski, was to let them leave at around 4 p.m., but
that within a short period of time they, presumably Sat-
kowski among other supervisors, were expressing the
view that they did not care how long it takes you to do
it, you got to do it. Kellerhouse recalled that the four of
them all walked out together. He was not asked and did
not agree that the overtime pay offer was ever-accepted
by the men. The next day, December 23, when they
came in to work, they went to see Satkowski in his
office and asked if they were fired. Satkowski's response,
which he did not later dispute, was that they should go
back to work like nothing ever happened. Kellerhouse
also noted that after working a full day and then some
on December 22, and as he and the others explained to
Satkowski at the time, when you work with acetylene
torches as they did, you can get careless when you are
tired. Kellerhouse also commented that the cold weather
in January in the plant caused sticking of PVC pipe
joints which served to aggravate a situation in which
almost another full day's work was called for to com-
plete work on the house that night. His attempt to reason
with Satkowski about these problems and obtain compa-
ny agreement to limited further work that evening and
completion of only a portion of the remaining work was
unsuccessful.
Shawn Pierse explained that the problem of the 6
hours of additional overtime arose because a special
order for plumbing fixtures had not been filled and deliv-
ered until late in the day. Neither he nor William De-
Groot recalled the subject of overtime pay having been
raised or an offer having been made to pay it if they
stayed. This appears to support the conclusion that since
they both worked together in roughing-in work, the
Company's approach on the matter had been made only
to the two finish plumbers. However, both Pierse and
DeGroot recall participating in discussions with Gordon
and Kellerhouse which led to their joint decision that
they were not being treated fairly in the late assignment;
they were tired and they would leave together rather
than work late into the evening in the period immediate-
ly preceding the Christmas holiday.
The four employees were also questioned on cross-ex-
amination regarding an incident just 7 days later,- on De-
cember 29, 1987, when they also left work together in a
group, at midmorning.
The week of December 28 was planned to take inven-
tory. Normally, production was to be suspended for that
week, and employees could volunteer to come in to
work to assist in taking inventory, receiving in addition,
their vacation pay if they had time coming. (Chelsea
gave a half day's vacation pay for every month's em-
ployment.) However, departments that were behind in
their production were required to perform their regular
work to catch up. In an interoffice memo to all employ-
ees dated December 18, 1987, Satkowski informed them
of the plant shutdown from December 28 to January 1
and the foregoing.
CHELSEA HOMES 821
As the plumbing department was behind in its work,
the four plumbers were directed to work, and they re-
ported and performed their normal work on Monday,
December 28. The two roughing-in plumbers worked 8-
1/4 hours and the two finish plumbers worked 11-1/4
and 12 hours, respectively.
On Tuesday morning, the four plumbers again report-
ed for work, under a more relaxed reporting time sched-
ule for that week, varying between 7:20 and 8:03 a.m.,
and continued their regular assignments for approximate-
ly an hour-and-a-half. Gordon testified that at that point
in time, a man who he did not know came by and told
Gordon and Kellerman that they could not use any ma-
terials because of inventory and that they could start
maybe around 3 p.m. and start their day then. Gordon
recalled no resolution of this problem, although the
matter was taken up with his supervisor and with Plant
Manager Satkowski. When he was asked whether at
some point he was told to make a list of the parts and
materials he needed from the parts crib, Gordon recalled
that this came up the first thing in the morning and then
they changed it. When the four plumbers left, Gordon
could not recall whether they received permission, but
chances were they did not.
Kellerhouse recalled that Satkowski was made aware
of the problem first thing in the morning, but that he did
not do anything about it. Satkowski's response was
"well', that's the way things go. You know, you just have
to deal with it" and "we got to take inventory." Keller-
house testified he told Satkowski they should be able to
use copper to get that shipper done, anyway, a shipper
being a house set for completion and delivery to a foun-
dation site on a fixed timeframe and calling for the
scheduling of a crane and rigging crew to lift and set the
house on a carrier for delivery to the site and a site crew
to set the house on its foundation. Kellerhouse added
that the rest of the stuff they should be able to count. He
asked Satkowski why should they not be able to make a
list. This was a suggestion that originally had come from
Gordon or himself. Satkowski was not responsive. Ac-
cording to Kellerhousb, "after a lot of hemming and
hawing and stuff, nobody ever came back to us and told
us anything." The timecards show the four plumbers
punched out at 9:56 a.m. and left the plant, When asked
whether Satkowski had told him to stay and work, Kel-
lerhouse stated that Foreman Pete Marrocco, in particu-
lar, said that they did not care if they went or stayed in
light of the fact that they could not use materials, so
there was no more sense in standing around.
Kellerhouse did acknowledge that they, the plumbing
department, had been called in to finish the work, to
work on a shipper, because if they finished the work,
then they could have gotten out on their vacation time.
Shawn Pierse corroborated Gordon and Kellerhouse
that the idea of making a list of parts that the plumbers
needed to take from inventory and subtracting these
items from the tagged materials originated with the em-
ployees and, further, that the suggestion was not adopt-
ed. In Pierse's words, "no one would cooperate. They
said that could not be done. You had to wait until we
were finished counting." (Tr. 254). Rick Campisi kept on
saying that he did not know what to tell us. He also said
he could see no reason for them to stay. Neither did
John Satkowski do anything about the problem after he
was informed.
Pierse repeated that they left because they could not
work. When they came in that morning, they worked
while they had materials to work with. But after a short
period of time, they ran out of materials. When they
went to get the materials, they could not get any because
of the taking of inventory. He agreed that they waited
until they felt it was long enough (to get the problem re-
solved) and then (when it was not) they decided to
leave. Before they left, they talked with Foreman
Campisi who did not know what was going on but who
also said that the inventory was going to be going on
and he could not see how they would be able to work.
When Pierse then said "so, we will go home then,"
Campisi did not reply. At this time, all four plumbers
were working on finish work to get out a house.
DeGroot testified that he and the other plumbers had
set aside some materials the previous week, on the half
day of work on December 21, at John Satkowski's sug-
gestion, in anticipation of inventory taking during the
following week. They included copper tubing, fittings,
components for baseboard radiation, and toilets, among
other supplies. He acknowledged that they probably did
not put aside enough, because although they worked on
December 28 without incident, by midmorning Decem-
ber 29, they ran out of fittings, radiation components,
and the like. When they asked if they could get a super-
visor to mark off the materials at the parts crib, they
were told by the people taking inventory, "no, they were
counting it, and that was final." When Campisi was told
that they could not touch the materials, he said it was
not up to him.
When the problem remained unresolved, the men dis-
cussed! among themselves that there was no sense in stay-
ing for a whole day and not doing anything. They all
agreed to clear up the mess they had made working and
to leave. Nobody told them to come in the following
day. They were told that inventory was going to be
taken the whole week. None of the men made contact
with the Company the balance of that week. Neither did
the Company contact them. As DeGroot explained, he
felt he had worked his 2 days that he was told to, and he
was going to spend the rest of his vacation at home.
Their timecards contain the notation "absent" next to
Satkowski's initials for December 30 and 31.
In the presentation of its own case-in-chief, Respond-
ent adduced evidence with respect to its reaction to the
four employees' conduct on December 22 and 29 leading
to their discharge and the separate events leading to the
termination of the fifth alleged discriminatee, Carl
Morgan.
John Satkowski testified that on December 21, Re-
spondent had "shippers" going out of the plant on De-
cember 23 that required the plumbers to complete work
on these houses. When he approached "them" about
working extra overtime, they did not want to do it.
When he asked why "they" explained because it was
Christmas week. They would not be putting in 40 hours
and therefore wouldn't be getting paid time-and-a-half on
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
overtime hours. He then explained he made an agree-
ment with "them." He took them aside and said if they
stayed and completed their work , he would pay them
overtime after 8 hours (in a day), not after 10 hours (in a
week) which was the normal practice . They agreed to
stay and complete the shipping on this basis. Satkowski
failed to specify who, among the plumbers , whether one,
more than one, or all , made this agreement . Later that
day Satkowski learned the plumbers had left. He was
very displeased because not only did the houses have to
be shipped out the next day but he also had plans to cel-
ebrate his birthday that day by going back to Pennsylva-
nia with his family . He and Rick - Campisi stayed and
completed the plumbing work by approximately 10:30
p.m.
Foreman and admitted Supervisor Pete Marrocco tes-
tified that on December 22 after the plumbers had
agreed to stay and receive overtime pay, he spoke to
Gordon and Kellerhouse in the finish area and volun-
teered to give them a hand in completing the job. They
said they would do it. After taking their break, they re-
turned with the rough plumbers (DeGroot and Pierse)
and just started walking out the door. When Marrocco
asked where they were going, they said they were going
home. He asked to reconsider without success.
Since the plumbers did not fulfill their agreement to
complete the work, they did not receive time-and-a-half
pay for their hour-and -a-half to three-quarters of over-
time that day.
The following day, Satkowski , who was still angry, in-
formed Telesz that they had to find new plumbers, that
he was fed up with staying and doing their work . Telesz
said he would contact Jim Carr, a group leader of the
service crew , about finding replacements . Carr had re-
cently worked for Modern Homes in Athens , New York,
another modular home manufacturer and installer and
knew plumbers employed there. Earlier that morning,
December 23, Satkowski told the four plumbers that he
was "pissed off' and just get back to work and do their
job. He explained that he did not reprimand them be-
cause he felt he was just going to get rid of them but he
had to find replacements first.
Sometime later, on a date Satkowski could not recall,
Telesz told him he had talked to Carr and there was a
probability that there were people working at Modern
Homes willing to come to work at Chelsea Homes.
Satkowski and Campisi had told the plumbers to
report for work the following week. On Tuesday, De-
cember 29 , Satkowski' learned from the plumbers that
they could not get their work done , they did not have
the parts to do the work because of taking inventory.
Satkowski testified he then got an agreement with the
auditors permitting the men to keep a running list of the
parts they were taking out of stock which he would
supply at the end of the day so they could subtract them
from their inventory count. After informing the plumb-
ers and obtaining their assent to keep such a list of parts
removed from the small parts crib, Satkowski went to
other tasks related to inventory . It was Satkowski's mi-
tial recollection that Campisi was present during this
exhchange . Again, Satkowski failed to indicate with any
precision which of the plumbers participated in this dis-
cussion . However, he later clarified that he only spoke to
Kellerhouse and Gordon in finish, and not to Pierse and
DeGroot in roughing . Also Satkowski subsequently
changed his testimony to now deny that Campisi was
present in his conversation with Keller and Gordon.
Marrocco testified that he observed Satkowski tell Kel-
lerhouse about keeping a list of what he was taking. Kel-
lerhouse mumbled something , made a face , shook his
head , and walked toward the plumbing department.
Later, Campisi told Satkowski that the plumbers had left
and Satkowski then informed Telesz of this development.
Satkowski, Telesz, Carr, Campisi, and one or two others
completed the plumbing work on the shipper for the
next day.
At this point, Satkowski had had it with the plumbers.
As he expressed it, this was the second time they
screwed him, and he was not going to put up with it any
more. He told this to Telesz who agreed that they defi-
nitely had to find people to come to work in their stead.
It was Satkowski 's understanding that Telesz contacted
Jim Carr and told him to get the Modern Home plumb-
ers down to Chelsea Homes the next day so management
could talk to them and show them the Plant and what
kind of work had to be done.
At 9 or 10 the next morning, December 30, three
plumbers from Modern Homes came to the Plant. Jim
Carr took them through the Plant, showed them the
work , including the necessary tie-ins underneath the
houses, the working conditions. They then accepted the
job. According to Satkowski : "we filled out all necessary
paper work that day." This included forms for withhold-
ing taxes , insurance , emergency contact , and applica-
tions. Satkowski related that Telesz interviewed the new
men while he was in and out of the office because he
was doing plumbing work on the line.
An arrangement was made at the request of the new
men for them to give their employer , Modern Homes, a
2 weeks' notice , and to start work at Chelsea Homes on
Monday, January 11 . (The notice was actually short of 2
weeks, or 11 days, running from December 31 on their
return to Modem Homes.)
Satkowski learned a day or two later that when the
three plumbers returned to Modern Homes and attempt-
ed to give notice, they were immediately terminated. As
a consequence , according to Satkowski , the new men
contacted Chelsea Homes, and asked to start earlier be-
cause they could not go without work for that, long
period of time . A new starting date of January 6 was ar-
rived at "with themselves that they said they had'some
loose ends to tie up with stuff they had to get done
before they could start the new job down here. (Tr.
434).
Again, according to Satkowski , the three new men
began work on the morning of January 6 immediately
after the four plumbers were terminated . Satkowski's
plan was to have the four plumbers finish off up through
Tuesday, January 5. While he and other supervisors
were free to, and did, perform plumbing work on the
plant floor on January 29 and 30 because no other pro-
duction was being done during ' inventory week, by
Monday, January 4 , he and other supervisors were back
CHELSEA HOMES
to running production, and so needed the work of the
four plumbers once regular production resumed. Sat-
kowski did not inform them of their imminent firing be-
cause, in his words, if he had done so, "they probably
would have just upped and quit on me." (Tr. 436.)
Satkowski denied having any knowledge of their union
activity on December 30 when the final decision was
made to replace them. Neither, swore Satkowski, did he
know anything about the union drive or union organiz-
ing on Monday, January 4. Nobody told him about union
card distribution taking, place on that date. His first
knowledge of any involvement of Chelsea employees in
a union campaign came on January 5 when Carl Morgan
handed him the two papers previously described. He was
surprised by this turn of events and asked Bob Telesz
what he should do. Telesz was shocked and said he
would contact the company lawyers and ask what they
should do about the plan to fire the four plumbers at the
end of the day, two of whom, Kellerhouse and Gordon,
were named as members of an in-plant union committee
in the typed notice from Union Representative Chiarito.
Later in the day Telesz, President Fabri, and a principal
shareholder, Dick Rosenberg, participated in a meeting
during which Edward Bookstein, senior partner in the
law firm of Kohn, Bookstein & Karp, counsel for Re-
spondent in this proceeding, was contacted to provide
advice on this matter. Subsequently, Telesz directed Sat-
kowski to go ahead with business as usual, implement the
decision already made to terminate the four plumbers,
and do not mention anything about the Union, and to
have a witness present in the office when they were ter-
minated. If any of the plumbers introduced the subject of
union, "don't respond, say nothing about it."
Satkowski did acknowledge that toward the end of the
workday, on January 5, there were meetings of foremen
with respect to the union activities. Later Satkowski tes-
tified the only meeting held to discuss union activities
was Rick Campisi. Still later, Satkowski recalled union
discussions held among the supervisors as a group.
Atone meeting, Satkowski was advised as to how to
conduct himself in the Plant with the employees. The
discussions held among the supervisors were about who
was involved with the Union, how it got started, and
why the employees wanted it. It was brought up who
was involved with the Union, and he and Bob Telesz
discussed who was involved and how to find out who
was involved. They were trying to find out how the
union drive got started, who was involved, what was
going on, what the problems were, and why they were
doing this. They were waiting to hear from other em-
ployees coming to them and talking to them about the
,drive. Satkowski knew that f'or the Union to pursue the
representation petition before the National Labor Rela-
tions Board, the Union had to have a showing of inter-
est, represented by cards signed by employees.
After speaking with Telesz, Satkowski told Rick
Campisi, the plumbers' foreman, to get the plumbers,
bring them up to his office at 3:30 p.m., not when they
were finished with their work, and be there when he ter-
minated them. Satkowski, after initially avoiding a direct
answer as to Campisi's knowledge of the plumbers' ter-
mination, said he told Campisi of the hiring of the three
823
new men on December 30. This conflicts with Campisi's
own testimony that he first learned they were to be fired
on January 4. Infra at 22.
Satkowski testified he met with the four plumbers in
his office at 3:30 p.m. Rick Campisi followed them into
his office above the cafeteria and closed the door behind
him. He ramained in the rear of the office next to a filing
cabinet. Satkowski told the employees they were being
terminated. They asked him why, and he told them he
was fed up, was sick of doing their work, along with all
his other supervisors. Shawn Pierse asked if that's it. Sat-
kowski said, "Yes," and Pierse said, "OK," "I'll see
you," and he left. Satkowski told Campisi after they all
left to go down and make sure they took Chelsea tools
out of their toolboxes and took their own tools out of the
Plant. Satkowski denied that the word union came up at
all in the conversation or that he had told them they
should not have become involved with the Union.
Three of the four employees punched out at 4:12 and
4:08 p.m. one did not and Satkowski wrote 4:08 on his
card. Three replacements, John Palmatier, Bruce Corn-
well, and Mike Panzarino, started at 6:30 the following
morning. A fourth new plumber, Tom Rayford, was
hired from a separate source and started a few weeks
later.
On cross-examination, Satkowski noted that the origi-
nal three plumber replacements remained employed only
for 6 or 7 months and, in turn, were replaced by two
new ones.
Although Shawn Pierse had been employed since
around the opening of the Marlboro Plant, in March
1987, and was a group leader, Gordon was employed ap-
proximately 8 to 9 months and Kellerhouse started in
April 1987. Satkowski did not see it to warn them or
inform them earlier that they were being let go. In fact,
with respect to either incident which triggered their dis-
missals were they informed of the Company's dissatisfac-
tion with their conduct or warned, even after the first in-
cident or second, that if they did not straighten out,
complete their assignments, they would be let go.
As to Carl Morgan, Satkowski explained, preliminar-
ily, that in most departments, employees are paid on an
incentive, basis. Where specific work tasks can be as-
signed, normally, after a 30-day probationary period
during which employees are trained and are able to
handle the job well enough, they are placed on the in-
centive progam where their pay is determined, in part,
by the number of units produced over time by the work
crew. The advantages of the system to the employer are
that work gets done quicker, resulting in reduced over-
time and fewer opportunities for accidents. For the em-
ployees, they can earn more money, make a, higher
hourly rate. If they are on incentive, they receive $325 a
week. At 40 hours' work that comes to $8.13 an hour,
significantly higher than the straight hourly rate. For ex-
ample, Carl Morgan was then earning $7.25 on an hourly
basis. The decision to go from hourly to incentive is
made by Satkowski and the employee's immediate fore-
man. In certain departments, where work tasks are not
specific or repetitive, including swing (spackling repairs,
sanding, painting, cleaning), utility (building cap roofs,
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
installing landings and stairs), frame (load houses onto
carriers), paint booth (stain all doors, base trim, and door
casings employees are paid hourly.
Carl Morgan's department, ceilings, is on the incentive
system. At the time the matter arose involving Morgan's
refusal to go on incentive, it had four employees. On the
day in question (January 7) Satkowski called him into his
office. He felt Morgan was doing a good job, he knew
his job well and he wanted to put Morgan on incentive.
When Morgan refused to go on the system, he had to let
him go because the department was an incentive depart-
ment.
At the time, of the four employees in the ceiling de-
partment, Dave Barnach and Carl's brother, Mike
Morgan, were on incentive and Carl Morgan and Mike
Carter were not. Although Carl Morgan refused to make
the change and was fired, Carter, also spoken to sepa-
rately that day, did not refuse and he remained an em-
ployee on incentive pay. Incentive is mandatory.
Satkowski testified, contrary to Morgan, that he pre-
pared the writing that day, in front of Morgan, which
Morgan then signed. When he asked Morgan why he
would not switch to incentive pay, Morgan just told him
there was no way he was going to do it. Nothing was
said about the Union but Satkowski knew at the time
that Carl Morgan was a union supporter from the letter
notice provided by him 2 days earlier. After Morgan
signed the statement that he refused, Satkowski told him
he did not have any position available for him, Morgan
said okay and walked out of the office.
Although having failed to so testify during his direct
examination, when shown on cross-examination a memo-
randum of the interview and discharge which he pre-
pared on January 11 after the Respondent had received
the unfair labor practice charge filed in Case 3-CA-
14143 on January 6, Satkowski admitted that "I also told
him that when there was an hourly rated position avail-
able, I would call him in." Satkowski also acknowledged
under cross-examination that although hourly rated posi-
tions became available since Morgan's termination, he
did not call him because it just slipped his mind at the
time. Now that he had been reminded, he would call
Morgan when an hourly rated position becomes avail-
able. Satkowski also agreed that Morgan was qualified to
perform some, if not all, of the work duties performed
by employees in the hourly rated departments.
The facts also showed that Morgan had actually com-
pleted his apprenticeship training of 30 days during his
earlier tenure with the Company in June and July 1987,
and yet he was not told he was being placed on incen-
tive until after another 30-day period had elapsed follow-
ing his return as an employee to the same department-
ceilings-on November 24, 1987.
Respondent also introduced into evidence a prelimi-
nary determination of the New York State Department
of Labor dated February 12, 1988, denying Morgan's un-
employment benefits for the period beginning January 8,
1988, because he quit his job without good cause. The
determination noted that Morgan was advised at the time
of hire that after a training period he would be placed on
an incentive pay program. He refused to go on this pay-
ment system and quit his job. This determination which
can lead to a hearing before an administrative law judge
on request within 30 days of the date of notice was not
contested by Morgan. While Morgan also insisted at the
instant hearing that the statement in his prehearing affi
davit in which he recalled an employer letter at the time
of his hire giving him a choice after so many days of
going on incentive or remaining hourly was based on his
reading of the letter which did not say the incentive pro-
gram was mandatory, he also acknowledged that he was
not told in so many words that the incentive program
was optional.
Other Respondent witnesses testified to the incidents
resulting in the discharge of the four employees and the
allegations of employer interference with protected
rights under the Act.
Peter Marrocco testified that on the day the four
plumbers were terminated, he spoke to Telesz regarding
the subject of union. He was called to Telesz' office with
a bunch of other people. Up to that point, he had no
knowledge of any union activities taking place involving
Chelsea employees.
A. to the incident involving Carl Morgan and Wayne
Farber on January 6, 1988, Marrocco said when Morgan
came down to the trim department, Farber said, "this is
my representative, this is all pertaining to the union,"
Marrocco told Morgan the matter concerned Wayne
Farber, since he worked for Marrocco he, Morgan, had
no right being there or in the conversation. Marrocco
went on, this is not an issue about work, if you (referring
to Farber) don't finish, I have a whole department that
has no work to do the following day, I needed him to
stay and he refused.
According to Marrocco, Carl Morgan was trying to
speak for Wayne Farber, as to what Marrocco can or
cannot ask him to do. Marrocco later reported the inci-
dent to Telesz.
Under cross-examination, Marrocco explained that at
the supervisor's meeting in Telesz' office, they were
asked what they knew about any union organization
going on in the plant. Everyone denied knowledge. The
meeting went on roughly 15 minutes to a half hour. Mar-
rocco also noted that when he told Telesz of Morgan's
presence on behalf of Farber, he said that Farber had
wanted Morgan as his union spokesman or representa-
tive.
Richard Campisi testified he had responsibility for the
work of the four plumbers. He understood a deal was
made with them to pay overtime pay after, ^8 hours' work
on December 22, 1987. Campisi believed it had been ar-
ranged with John Satkowski but he was not personally
involved. After they left without completing the work
and he and John Satkowski had to stay late into the
evening, Satkowski told him the plumbers were going to
be terminated. Campisi also told the plumbers they had
to come in to complete their work the week of Decem-
ber 28. On December 29, there were a lot of things
tagged for inventory which the plumbers complained
they could not use. Campisi went to Satkowski with this
problem. He learned that the auditors had informed Sat-
kowski the men could take the materials but to log and
make a record of the items used. When he told this to
CHELSEA HOMES 825
Kellerhouse and Gordon at the finish line, Kellerhouse
expressed displeasure, saying he was not jotting anything
down on paper. By the time he went to see Satkowski
about their lack of cooperation, he believed the four of
them had gotten together and decided to walk out.
Campisi stated that he became aware the plumbers
would be replaced on January 4, the day before it hap-
pened. According to Campisi he was told by Satkowski
on January 4, "when I give you instructions on the 5th,
call the plumbers up,to my ofE'ice." On January 5, at the
end of the day, Satkowski told him to get the four
plumbers and bring them to his office. Campisi claimed
that he did so and then stayed in the office at Satkow-
ski's request. He heard Satkowski tell them they were all
terminated, that they should get their tools or whatever
belongings they had and to leave the premises. When
they asked why, John said that he was just tired of doing
their work when there was work to be done. The word
union was not mentioned by anyone in the office.
When they left the office, Campisi walked with them
and kind of comforted them. He accompanied Keller-
house and Gordon as they got their stuff; the other two
went off to get their tools. Campisi had been instructed
to stay with them until they were out of the Plant. The
only thing he said to any of them was to wish them luck.
He specifically denied asking any of them what John had
wanted with them up in his office or expressing surprise
at their firing. The new plumbers started the next day.
At first, Campisi testified that the first he heard of any
union activity was the morning of January 5 when John
got more papers, and they (presumably the supervisors)
heard about cards being given out. Later that day, Bob
Telesz asked him what he knew about the Union and
Campisi dewed any knowledge. Telesz spoke to all the
foremen together at a meeting he had called. Later,
while 'undergoing cross-examination, Campisi now testi-
fied that it was either January 4 or 5 that he found out
that there was union activity going on, when he first
found that union cards were being handed out. Campisi
also now testified, contrary to his earlier assertion, that it
was on January 5, not January 4, that Satkowski told
him that plumbers were going to be let go at the end of
the day and, further, that it was January 5 when he
learned of union activity. Campisi was also less than firm
in his recollection of the overtime hours the plumbers
had worked,, during the week of December 21, 1987,
even though as the men's immediate supervisor he would
review and initial their timesheets at the end of the
workday. At first he denied they had worked any over-
time at all, then hedged as to the definition of overtime,
and finally expressed uncertainty as to whether any over-
time had been, worked that week.
Robert Telesz, vice president, denied that he was con-
sulted about putting Carl Morgan on an incentive pro-
gram, although he approved such a change after the fact.
When Foreman Pete Morrocco complained to him that
Carl Morgan had come into his department and interced-
ed at Wayne Farber's request when he had asked Farber
to work overtime, he, Telesz, went over to Morgan,
took him aside and among other things, told him "my su-
pervisors are complaining, and I do not see any reason
why you have any right to go over there and interfere
with Pete Morrocco." Telesz then told Morgan would
he please stay in his department and not interfere with
other departments. Morgan agreed not to do it again.
Telesz corroborated employee Farber that at a meet-
ing with employees held in the spring of 1987, President
Fabri asked them to give him a chance to work out
problems when he learned that a number of employees
were interested in starting a union. Telesz differs from
Farber, however, in his account when he places the
meeting as having taken place in March, not May, when
he recalls only 3 employees, not 10, participating, and
when he fixes the origin of the meeting as taking place at
the employees' request to seek the Employer's response
as to why they should not start a union, not that they
were called in by management to respond to known
union activity. Telesz also recalls Farber requesting a $1-
an-hour raise, aside from employee requests for more em-
ployees and tools to work with. Finally, Telesz denied
that Elliot Fabri, who did the talking for the Company,
said anything about firing employees or closing the
Plant, as testified to by Farber. Telesz did not dispute
Farber's testimony that Fabri told the employees he had
learned about their union involvement by surveillance of
their off-premises meeting. Fabri himself disputed making
any statements at this meeting concerning closing the
Plant or the possibility of discharging employees if they
selected a union to represent them. Fabri acknowledged
having asked a number of assembled employees some-
time in mid-May 1987 to be reasonable since the Compa-
ny had just started out and to come to them with any
problem, and they would try to resolve it. This meeting
followed the Company learning of employee interest in
union organizing. Fabri was somewhat vague about the
source of this knowledge and did not directly contradict
Farber's version of company surveillance. Nonetheless,
he supported Telesz that the employees sought the meet-
ing to air grievances.
Telesz testified that he knew the four plumbers were
going to be let go since December 30, 1987, and that it
was he who hired their replacements. He first became
aware of the problem involving their refusal to stay and
work overtime the day after the incident, on December
23 when John Satkowski explained that although he had
cut a deal with them to, pay them overtime, they had
bailed out and Satkowski had to stay to 10 p.m. in spite
of plans to go back to Pennsylvania. Telesz agreed to
look for replacements and when he found them they
would do something about the problem. He did not want
the four terminated without any workers on hand to do
their, jobs. Telesz then spoke to Jim Carr on the same
day, December 23, told him he needed plumbers, and
asked what he could do for him. In this conversation, ac-
cording to Carr, and not disputed by Telesz, Telesz told
him that he wanted to terminate the plumbers because of
the quality of their work and they would walk off the
job without finishing the shippers. It is undisputed that
the only such incident up to that time had occurred the
prior day, December 22. The statement is alleged in an
oral motion to amend the complaint granted on the
record as a threat of discharge for engaging in protected
concerted activity (Tr. 355).
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nothing further was done to obtain replacements until
a week later. On December 29, Satkowski told him he
had a problem with inventory, that they could not take
materials out. So he, Telesz, and John Satkowski went
over to one of the auditors the Company had brought in
to audit all their materials. At first the auditor refused to
permit the release of any materials out of inventory.
Telesz then suggested they could make a list of material
removed and the auditors could change the tags on the
items before they were counted. Telesz did not provide
the auditor's response but noted that this procedure was
eventually followed and as far as he knew, the problem
with inventory had been completely resolved.
Telesz explained that the concern at the time was with
a shipper, a house that was supposed to go to a specific
dealer to be delivered on December 30 to be placed on a
foundation on New Year's Eve, December 31. He knew
about this schedule because he, Fabri, and a third indi-
vidual, Pasquarelli, were partners in a firm called River-
view Development that had purchased the home from
Chelsea Homes, and on behalf of Chelsea Homes he had
booked a crane for December 31 at the site along with a
set crew of Chelsea employees to set the house on its
foundation.
When Telesz believed that the problem had been re-
solved on December 29, by getting authorization to take
material from inventory by marking the cards attached
to the supplies, he told Satkowski to inform the employ-
ees. Further questioning of Telesz elicited the response
that he had met with the auditor "before lunch," at
around 11 to 11:30 a.m. right after Satkowski had come
to him with the problem. He recalled the time because it
was right before lunch he was alerted to the plumbers
having left and it was after lunch that he started doing
work on the house he was purchasing at about noon and
continued working to 6 or 7 o'clock that evening.
Telesz' testimony was split between 2 days. After he
completed his direct examination on the second day and
was undergoing cross-examination, Telesz, acknowledg-
ing he had earlier testified he learned of the inventory
problem just before lunch, now testified it might have
been before 11 a.m., he could not say it was exactly right
before lunch, but sometime before lunch. He then testi-
fied it was in the morning, he couldn't pinpoint the time,
and obviously before the plumbers left because it was
after the situation arose that Satkowski approached the
plumbers about staying to complete the work and
making a list although he never spoke directly with
them. While acknowledging his awareness that the
plumbers had punched out at 9:56 a.m. Telesz suggested
that "just before lunch" could mean anything, including
possibly 8 or 9 o'clock in the morning.
Telesz viewed the plumbers' refusal to stay and com-
plete the work as insubordination for which they were
not reprimanded because they needed their work until
they could be replaced. He also considered it as leaving
work early without notifying supervisors, another viola-
tion of plant rules. Both violations were subject to the
Respondent's reprimand system which Telesz designed.
That system called for a progression of steps from writ-
ten reprimand, to final warning, then 3-day suspension,
and finally, termination, for violations occurring within a
12-month period. Nonetheless, that system was not fol-
lowed for the plumbers.
When asked to describe any other instances in which
the disciplinary system was not followed, Telesz referred
to a recent incident in which an employee, caught sleep-
ing on the job and who had to be shaken to awaken him,
was fired on the spot. Another employee who threatened
and cursed Satkowski was also summarily fired.
While Telesz at first was emphatic that the employees
had made no attempt to notify any supervisor they left,
later, under cross-examination, Telesz could not state
definitely whether the plumbers actually notified their
supervisor before they left on December 29, because he
was not present at the time.
Telesz explained that as a partner of Riverview Devel-
opment, he was involved in a speculative joint venture in
which Riverview owned the site and purchased the
house for placement there for eventual resale on the resi-
dential housing market. At the time of the hearing, 9
months later, the unit had not been sold. As an investing
partner, ultimately he stood to gain financially from his
arrangement with Chelsea.
Telesz also acknowledged that a delay of 1 day or
more in delivery of a completed house would not lead
necessarily to incurring extra costs. A delay from the
scheduled date could, however, result in problems of
transporting the house if Chelsea's trucks for building the
carrier were otherwise committed and independent haul-
ers were not available. In the past, Respondent failed to
meet shipping deadlines 20 percent of the time and none
of these delays resulted in the termination of employees.
While the shipper scheduled for delivery on December
23 was actually delivered on that date when Satkowski
and others stayed very late on December 22 to complete
the unit, the house was not actually set on its foundation
with Chelsea's own crew until January 5, 1988.
Telesz testified that after the incident of December 29,
on the same day he told Can whatever it takes, he
wanted the plumbers, Carr had contacted at the Plant
there the following day. Carr brought the three plumbers
into his office on December 30. They sat down and dis-
cussed pay and benefits and then Carr took them on a
tour of the Plant. According to Telesz the men were
then hired and they signed the papers right then and
there in front of him. Documents introduced into evi-
dence show that each of the three, Michael Panzarino,
Bruce Cornwell, and John Palmateer, signed certain
papers dated December 30, 1987, including acknowledg-
ing reading or receiving company absenteeism policy,
reprimand system, incentive wage policy, plant/site
rules, and group insurance enrollment application, among
other forms, but that Cornwell did not sign his W-4 em-
ployee withholding allowance certificate until January
20, 1988, or his receipt for hardhat and safety glasses
until January 11 and the date that Palmateer signed his
W-4 form is indistinct. Furthermore, none of the three
had their new employee procedure form signed by
Safety Director Kevin Conway until January 6.
Most, if not all, of the forms signed by the three new
employees were later countersigned by John Satkowski
on January 5, 1988 (who miswrote the year 1987 on a
CHELSEA HOMES
number of them). While Satkowski testified he was in
and out of the interviews Telesz held with the men,
Telesz testified that he gave all the forms to Satkowski
on December 30. Satkowski testified, however, that he
did not receive the paperwork to sign until January 4 or
5, and that although he was in the Plant working on De-
cember 31, he was not given the papers on that date.
Panzarino, the only one of the three new employees
called by Respondent, testified to being hired on Decem-
ber 30, but he could not explain Satkowski's failure to
sign the documents, including his payroll authorization,
on that date. Satkowski signed his approval of the pay-
roll authorization in each instance on January 5.
The payroll authorizations show a start date of Janu-
ary 11 which was later crossed out and a new date of
January 6 listed next to the initials of the payroll clerk.
Telesz testified this change was made when he made Sat-
kowski aware of the changed starting date. Similarly, an
original salary of $9 an hour was crossed out and a new
wage of $10 inserted. Telesz said that he made an agree-
ment to pay the men $10 an hour as a final starting
figure. Satkowski testified that the change in salary was a
result of a misunderstanding between himself and Telesz.
Satkowski thought that Telesz had hired the new plumb-
ers at $9 an hour but he hired them at $10. According to
Satkowski, this misunderstanding was discovered after he
signed the authorizations and forwarded them to Telesz.
Telesz' initials do appear opposite the date of January 6
on each of the authorizations, followed by those of Man-
ager Satkowski on January 5, the controller on January
16, and Fabri on January 14.
As noted earlier the timecards of the three new em-
ployees show they punched in for the first time at 6:31
a.m. on January 6. However, unlike the normal time-
cards of other employees in evidence they do not include
a typed sticker across the top containing the name, em-
ployee clock, and department numbers, and the period
covered. On these cards, the payroll clerk hand wrote in
their clock numbers and week ending date and the em-
ployees themselves wrote in their names. Rather than
having been prepared in the normal fashion on the hiring
date of December 30, these cards bear evidence of
having been hastily prepared later for the. January 6
starting date. In one case, the card of Palmateer contains
Satkowski's handwritten notation made in error noting
the employee's absence from work on January 4 and 5
which he later crossed out. In accordance with normal
practice, all three cards were later initialed by Satkowski
at the bottom for approval of payment after the hours
were totaled.
Michael Panzarino testified that when he and the other
two plumbers returned to Modern Homes on December
31 and before they,could give 2 weeks' notice, they were
immediately fired. Panzarino learned that a plumber who
had remained on the job and not accompanied them to
Chelsea Homes the prior day had informed the company
officials where they had gone and why. The three
plumbers had left work at Modern Homes on December
30 without notice or excuse. On their return to work on
the morning of December 31, they observed that work
performed in their absence had been poorly performed
827
and had to be redone. They were in the middle of that
work when they were told to leave with their tools.
After their firing, they contacted Jim Carr, and Telesz
then called him, and as he understood, the other two as
well, to ask them to start earlier than January 11, be-
cause he had heard what happened. He and the others
then agreed to start on January 6 because "This way we
could still take a few days off but not be lacking
checks." (Tr. 584.) These conversations took place on
January 1 or 2.
Telesz testified that he first became aware that union
activities' were taking place early in the morning of Janu-
ary 5 when John Satkowski brought him the union no-
tices of activity and filing of a petition for certification
which Farber and Morgan had earlier served on Sat-
kowski. Significantly, Telesz did not address Morgan's
testimony that he had asked Supervisor Lapinski on Jan-
uary 4 if he had heard anything about the Union. La-
pinski was not called to testify by Respondent. As a
result, Morgan's testimony remains uncontradicted.
Telesz discussed the matter with Elliot Fabri when he
came in later that morning. Fabri contacted Dick Rosen-
berg, a principal shareholder of the Respondent, and the
three discussed the problem created by Respondent's de-
cision to dismiss the plumbers, two of whose names, Kel-
lerhouse and Gordon, appeared on the list of in-plant
union committeemen. A call was placed to Respondent's
law firm, and in particular, Edward Bookstein, a senior
partner in the firm of Kohn, Bookstein & Karp., P.C.
which represents Respondent in this proceeding. A dis-
cussion followed among the four over a speaker phone
located in Respondent's conference room.
Bookstein testified that he had been engaged in the
practice of labor and employment law since 1960, as an
.executive member served' on the New York State Bar
Association labor law section, and had taught labor rela-
tions at Albany Law School of Union University' for 12
years as an adjunct professor. In the late morning of Jan-
uary 5, 1988, he received a telephone call in his office
from Rosenberg, Fabri, and Telesz of Chelsea Homes
who were on a speaker phone. The Chelsea Homes man-
agement group informed him about the receipt., earlier
that morning of the hand-delivered letter identifyg cer-
tain employees as members of an in-plant organizing
committee and advising Chelsea of the rights of those
persons 'under the Act. They claimed to have had no
prior knowledge of any organizing activity. They also in-
formed him that prior to that day they had determined
to terminate a group of four plumbers at the close of
business that day. They sought his advice as to their in-
Itended course of action.
Bookstein said he questioned the management group as
to their first knowledge of a union organizing campaign
and their basis for terminating the employees. He learned
from them that the employees had left their workplace
without permission on two prior occasions, once a week
before and the other 2 weeks before this conversation.
When Bookstein asked why they had not terminated the
men at that time, they explained that they did not have
replacements then. In response to another question as to
whether they could document that the termination deci-
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sion had been made prior to their receipt of the morning
notice of the organization campaign , they said that they
could.
Bookstein explained that he pressed the Chelsea group
for details because, as he told them, the timing was ex-
quisitely bad and would be viewed with suspicion. And
he wanted to be assured that the true reasons for the ter-
minations were as related and were unconnected with
the organizational campaign . When these questions were
answered, Bookstein said it was legally permissible to
terminate the four but that certain precautions had better
be taken. Specifically, someone from management should
be present to corroborate the substance of the termina-
tion interview, the basis for the terminations should be
identified as what management perceived as the employ-
ees' unreliability in having left on two occasions when
modular homes were scheduled for completion and de-
livery, and if the subject of the organizing campaign was
raised by the employees, they should be told that this has
nothing to do with the decision to terminate them.
On cross-examination, Bookstein was asked one ques-
tion by the General Counsel. Bookstein testified that if
the four employees had left work in concert as a protest
against working further overtime hours, their discharge
for having done so would probably be a violation of the
National Labor Relations Act.
E. Credibility Resolutions
Testimony conflicted with respect to the nature of the
Company's response to the abortive union drive which
took place in the spring of 1987. I find, in accordance
with Farber's and Fabri's recollections, and in contrast
with Telesz', the meeting with a group of employees was
held in mid-May. It appears that a group of employees,
closer to 10 than to the 3 recalled by Telesz, participat-
ed. I also find, as claimed by Farber but disputed by
both Telesz and Fabri, that the employees were called to
meet management immediately following their off-prem-
ises union meeting. Fabri did not dispute Farber's asser-
tion that he had engaged in surveillance of their meeting
site nor did he deny he had asked for more time to im-
prove conditions and terms of employment before seeing
union representation and in fact admitted that was the
thrust of the Respondent's position at the meeting. In so-
liciting employee complaints and promising, but not ful-
filling, their benefit demands, Respondent was seeking to
dissipate the union drive in a manner which, but for the
time limitations imposed by Section 10(b) of the Act,
would have been violative of the proscriptions contained
in Section 8(a)(1). I also credit Farber that at this meet-
ing, Fabri made clear that a successful union campaign
would result in their terminations, and the hiring of new
help4 and that if Respondent could not achieve this
result, the business would close. Farber was an outspo-
ken union advocate who later, on January 5, on formal
notice to Respondent, went to the Board to file the
Union's original charge in this proceeding, on the follow-
ing day, January 6, called Carl Morgan to his depart-
4 A significant statement considering the termination and replacement
of the four plumbers 8 months later immediately following their union
activities
ment as union committeeman to assist in a work dispute
with Supervisor Marrocco, and who also testified, with-
out contradiction, that he was the recipient of a threat of
discharge made by Supervisor Lapinski. On the follow-
ing day, January 7, Farber, who later quit employment
because of what he perceived to be the Company's par-
ticipation in a scurrilous personal attack made by an em-
ployee on his literacy related to his acting as key union
committee member (joined in by Lapinski at the time he
cursed and threatened Farber on January 7), was a con-
sistent witness who did not vary his recital of company
inducements and threats and retained his composure
under trying circumstances while undergoing cross-ex-
amination . Respondent's attempt to discredit him, as vin-
dictive because of the circumstances surrounding his vol-
untary separation from Chelsea is rejected. Furthermore,
in view of the dim view I take of Telesz' credibility, to
be discussed infra, as well as the implications arising
from Fabri's recital of his May 1987 employee meeting,
and the corroboration provided by Marrocco to Farber's
recital of his incident with Marrocco and Morgan on
January 6, I credit Farber with respect to each of the in-
cidents to which he testified involving the Respondent's
reaction to him and other employees' union involvement.
I also credit Carl Morgan's attributing the statement
made by Telesz to Lipinski on January 4 which he over-
heard, and which estabishes Respondent's knowledge of
the union campaign at least as of that date, and not Janu-
ary 5 as claimed by Telesz and others, particularly in the
absence of Lapinski as a witness and Telesz' failure to
address this testimony directly. I note here as well Rick
Campisi's prevarication as to when he became aware of
the union drive and the Company's decision to fire the
plumbers on January 5, and credit Campisi's testimony
on cross-examination that it was either January 4 or 5
when he became aware and that it was January 4 that he
was told to bring the plumbers to Satkowski's office at
the end of the January 5 workday. January 4 as the date
of Respondent's knowledge is also consistent with the
open union solicitations taking place on the Chelsea
property that day as well as Telesz' urgent paging of
Foreman Marrocco to the front office. Respondent's at-
tempt to show that Telesz would not have made the
remark in Morgan's presence is rejected, since there is no
evidence that Telesz was aware that Morgan was nearby
or was eavesdropping.
With respect to the exit interview with the four
plumbers held late in the afternoon of January 5, I credit
the four plumbers that Satkowski made the remark deal-
ing with their union participation they attributed to him.
I reach this conclusion in spite of the finding which I
also make that Campisi was probably present during the
full exchange between them. The four employee wit-
nesses each testified independent of and without having
heard the testimony of the others, as they were ordered
sequestered on motion made by Respondent counsel at
the outset of the hearing. I accord their consistent and
corroborative accounts significant and controlling
weight. While Pierse recalled that Campisi did not ac-
company them to Satkowski's office, Gordon and Keller-
man place a foreman there and Kellerman, upon being
CHELSEA HOMES 829
refreshed on review of his affidavit, agreed it was
Campisi . Campisi's presence is also consistent with Book-
stein's instructions to have a company witness present at
the firings , as is Campisi's own testimony about Satkow-
ski's directions to him to remain while he fired the men.
That Campisi later expressed surprise to the men about
their discharges as they testified and I find was not unex-
pected in view of his testimony that he sought to com-
fort them when they left Satkowski's office. In doing so,
contrary to his own more limited account, he very likely
expressed his prior lack of knowledge of their plight and
his sympathy toward them.
In reaching my finding that in spite of Campisi's pres-
ence and Satkowski's and Campisi's denials, Satkowski
told them that they shouldn't have gotten involved with
the Union, I am influenced by a number of factors. Each
of the four employees attributed some sense of Satkows-
ki's embarrassment and regret while describing his de-
meanor in the office when he was pressed by the men
for the reason they were being fired. After all, even Sat-
kowski acknowledged he had failed to reprimand them
when they refused to work the extended overtime on
December 22 and neither he nor anyone else in manage-
ment had criticized them by January 5 for leaving before
10 a.m. on December 29 during inventory week. As they
uniformly related, Satkowski spoke in sotto with his head
down at his desk. Satkowski, who had been friendly with
the men heretofore , also characterized them as compe-
tent, and none of them had been previously warned or
disciplined for any work-related shortcoming. Three of
them had been employed for some time, having started
close to the Company's opening in February 1987, all
four had received periodic rate changes and increases on
his approval, and one, DeGroot, as recently as Decem-
ber 22, 1987, had received Satkowski's written approval
for a change in rate to bring him up to the incentive
level of the others. I find that Satkowski expressed his
feelings at this meeting about their known union involve-
ment in spite of his receipt of company instructions to
the contrary. Furthermore, in view of what I have previ-
ously characterized as Campisi's unreliability as a wit-
ness, particularly in light of his prevarication on when he
first learned of the employees ' union activities and the
date of their intended discharge. I discount Campisi's tes-
timony offered in corroboration of Satkowski's denial of
his union remarks.
I also credit Morgan 's version of Telesz' statements to
him during their interchange on January 6 following
Morgan's presence on behalf of Farber 'in the trim de-
partment earlier in the afternoon . In Morgan's version,
Telesz directed him not to be a witness when a supervi-
sor talked to an employee. In his recital, Telesz placed
emphasis on Morgan's interference with a supervisor.
Also, contrary to Marrocco's testimony, I find that
Morgan did not directly intercede or attempt to inter-
cede on Farber's behalf or interfere with Marrocco
during his appearance in the trim department, but re-
mained silent while Marrocco explained that Farber had
not completed his work for the day. Nonetheless, his
conduct in being present as a witness for Farber, who
described Morgan as his union representative of commit-
teemen, which characterization Marrocco later reported
to Telesz, was an irritant to Respondent which Telesz
sought to discourage in his remarks to Morgan.
Morgan's testimony was straightforward, careful, and
presented without exaggeration. Even when elements of
his presentation on their face did not help his cause, for
example, his testimony describing his refusal to go on the
incentive pay system and Mike Carter's willingness to do
so. Morgan was focused and direct. Morgan even omit-
ted on his direct presentation mention of Satkowski's
promise to offer him a nonincentive position in the
future. Morgan also adequately explained the statement
in his pretrial affidavit that employees had a choice of
going on incentive by noting this was his interpretation
of a company letter explaining the system which did not
in so many words say it was mandatory. He then admit-
ted his statement had been incorrect. Morgan's responses
here did not serve to impeach his testimony and I found
him to be a truthful witness. His testimony is credited
where it conflicts with Telesz, Marrocco, and Satkowski.
I find, in particular, that Satkowski had already prepared
prior to their meeting the statement in which Morgan re-
fused to go on incentive. In two significant respects, Sat-
kowski changed his testimony without apparent reason.
See supra.
There is a conflict with respect to the circumstances
surrounding the four plumbers' decision to jointly leave
the workplace at 5:12 p.m. on December 22. The em-
ployees testified under cross-examination that they had
not entered into an agreement with Satkowski to remain
in consideration of being paid time-and-one-half their
normal pay for the overtime to be performed that
evening. Satkowski testified that the plumbers agreed to
continue working for overtime pay. I credit the employ-
ees that no agreement was reached. Gordondisputed any
such agreement and Pierse and DeGroot could not recall
overtime pay being offered or discussed. Inasmuch as
Satkowski failed to specify which employees among the
four were party to the agreement , the nonparticipation in
any discussion regarding overtime of the two roughing-
in plumbers, Pierse and DeGroot, was most likely the
case. Satkowski's general conclusionary testimony does
not support a contrary conclusion. The tired state of the
plumbers at 5 p.m. after over an hour of overtime, and
their firm views regarding their distaste for remaining
another 6 to 8 hours in the Christmas week further con-
vince me that ' no deal was struck; incentive pay was not
the determining factor on their motive to ' leave or not
work in the late afternoon of December 22.
I also find, in accordance with 'Gordon's testimony,
that the Company, by either Satkowski or Campisi, was
alerted to the employees ' decision to leave (as was Mar-
rocco in his own testimony)'and, further, that Satkowski
voiced sympathy with their decision, even though it cost
him personally when he had to cancel his trip to Penn-
sylvania. Satkowski's interchange with Gordon in the
parking lot illustrates the confidential relationship be-
tween supervisor and employees which antedated the
union campaign.
I also credit the plumbers that on December 29, no
resolution had been reached to the problem of parts in-
accessiblility, when the four men punched out at 9:56
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a.m. Uniformily, the four employees testified, each inde-
pendent of the others, that although the problem was
presented by them early in the day, that Satkowski was
made aware , and the idea of making a list was raised and
discussed, the auditors rejected the proposed solution,
and they were left with the prospect of waiting to the
end of the regular workday to get their assignments
done.
Although Satkowski may have believed he had re-
solved the matter, I find he had not; the men could still
not remove necessary parts and materials, and it was not
until Telesz' intercession late in the morning that the
auditors finally agreed to release inventoried materials.
Satkowski failed to note Telesz' personal involvement
in resolving the problem. It was Telesz who testified that
he and Satkowski went directly to a key auditor, "before
lunch," Telesz' later change in this testimony, overnight,
to an approach to the auditor sometime in the morning,
and his outrageous response that "just before lunch"
could mean as early as 8 or 9 a.m. branded him as a wit-
ness who was willing to take liberties with his first ac-
count beyond the credible in defense of Respondent's po-
sition justifying its discharge of the plumbers. Telesz' re-
sponses here make suspect all his other denials, of Fabri's
promises and threats to employees in May 1987, of his
knowledge of union activity on January 4, and of his al-
leged coercive interference with Morgan's conduct in
acting as Farber's union witness on January 6, and that
he played no role in Morgan' s termination on January 7,
and, indeed his denial that the union drive had anything
at all to do with the plumbers' terminations on January
5, 1988.
I also do not credit Campisi's attributing negative reac-
tions to Kellerhouse, in particular, when informed of a
resolution of the accessibility problem by the making of a
list of parts. I further find that Supervisor Marrocco was
made aware by the plumbers, as was Supervisor Campisi,
that in view of the inability of the Company to permit
them to work on December 29, they were leaving, and
neither made any effort to have them stay. To the con-
trary, Marrocco recognized their plight and Campisi re-
fused to intercede.
Finally, I cannot conclude that the four plumbers,
having come early to perform their assignments on De-
cember 29, would have left work after an hour-and-a-
half if they could have continued working with the
normal supply of necessary parts and materials. I find
they each were aware of their responsibilities to Re-
spondent and the particular requirements of moving ship-
pers and meeting shipping deadlines. The circumstances
which they faced on December 29, at 9:56 a.m., howev-
er,' placed them in the untenable position of waiting with-
out work for the balance of the workday, and then start-
ing a full day's work at 3 or 3:30 p.m. when their regular
workday ended. It was this circumstance which led to
their leaving in protest
A number of witnesses testified, and a batch of docu-
ments were introduced by Respondent, to prove that the
Modern Homes plumbers were hired on December 30 to
replace the four alleged discriminatees. The General
Counsel urges that no hiring then took place. I find that
the testimony and documents, earlier summarized, sup-
port the conclusion that Respondent had agreed to hire
the three new men on December 30 to start on January
11, 1988. However, I am also convinced that, contrary to
Respondent's claim , and that of Michael Panzarini, the
sole replacement employee to testify, Respondent was in-
fluenced by the union involvement and activity of the
plumbers, of which it became aware on January 4, 1988,
in moving up their starting date from January 11 to Jan-
uary 6. Panzarino 's explanation for the change in the
starting date, that after being fired with the others they
wanted days off (without any compensation) does not
ring true. It is highly unlikely that the Modern Home
plumbers would voluntarily forgo 2 days' pay. While Re-
spondent wanted the service of the old plumbers com-
mencing January 4, until their replacements, the weight
of the evidence convinces me that the sole reason for the
change, getting the new plumbers to start Wednesday,
January 6, rather that 3 workdays later on Monday, Jan-
uary 11, was the intervening event of the sudden and
substantial onset of the union drive.
This conclusion is supported by the haste with which
the new cards were prepared, and Satkowski's counter-
signing of the various forms relating to their hire on Jan-
uary 5, the day the alleged discriminatees were terminat-
ed, although Telesz testified, without contradiction, that
he gave forms to Satkowski on December 30. I also find
revealing in this regard the change in starting rate for
the new plumbers which was made by entry on their
payroll authorizations. It is at least consistent with the
handwritten timecard and late approvals of their hire,
after December 30, that the new men held out for a
dollar increase in their pay in order to agree to start
hastily in the middle of a week, on January 6, rather
than on January 11 as originally agreed. But most signifi-
cant on reaching this conclusion was Respondent's con-
duct on January 4 and 5 interfering with employees or-
ganizational rights and its efforts on the same date to
learn who among the employees were involved with the
union movement through supervisory meetings and other
means, and, in particular, Satkowski's statement in the
exit interview that the plumbers should not have gotten
involved with the Union.
Analysis and Conclusions
While I have credited the Respondent that the three
Modern Homes plumbers were hired to replace the
plumber discriminatees on December 30, prior to the
commencement of the latest union campaign at the Plant,
although the new plumbers' starting date was moved up
from January 11 to January 6 for discriminatory reasons,
a second substantial issue concerning the discharges must
be addressed. By asserting in defense of the discharges
that the four plumbers were let go because they walked
off the job, on the two occassions in late December, Re-
spondent places in issue the validity of its conduct as
against General Counsel's assertion tht the employees in
each instance were engaging in protected concerted ac-
tivity, interference with which violates their rights under
Section 7 of the Act.
The employees on' December 22 refused to stay
beyond their regular work hours and some limited over-
CHELSEA HOMES
time when they learned near the end of their workday
that substantial additional overtime was being required of
them. They had never previously refused to work over-
time. Their objections on this occasion were ground in
fatigue, lack of advance notice, safety considerations, and
the proximity of the Christmas holiday. I have also
found that notice was provided Respondent 's agents of
the employees ' intended action.
On December 29, by refusing to remain at the Plant
for a full workday without being able to perform any
work because of their inability to procure or use materi-
als subject to the inventory count, the four employees
also made known their protest to supervisory authority.
By acting and leaving together on these two occasions,
the employers clearly engaged in concerted activity re-
specting a term and condition of their employment.
Meyers Industries, 268 NLRB 493, 497 (1984), remanded
Prill v. NLRB., 755 F.2d 941 (D.C. Cir. 1985), cert.
denied 474 U.S. 971 ( 1985), supplemented 281 NLRB 882
(1986), affd. 835 F.2d 1481 (D.C. Cir. 1987). Their con-
cerns regarding the lengthy overtime and lack of prior
notice as well as their inability to perform work for the
balance of the regular workday related directly to their
conditions of employment and bore upon their interests
as employees in such a way that their concerted objec-
tions and their leavetaking on both days clearly fell
within the broadly interpreted parameters of conduct for
their "mutual aid and protection" as defined in Section 7
of the Act. See generally Eastex Inc. v. NLRB, 437 U.S.
556, 565 ( 1978), and was thus also protected conduct
under the Act.
The first incident involved a concerted refusal to work
additional overtime. Such a refusal is presumed protected
unless demonstrated to be part of a plan or pattern of
intermittent action inconsistent with a genuine strike or
genuine performance by employees of the work normally
expected of them by their employer. Polytech, Inc., 195
NLRB 695 (1972); see also Embossing Printers, 268
NLRB 710, 724 (1984); SMF Cement, 267 NLRB 736 fn.
1 (1983). No such intermittent stoppage is evident on this
record . As noted, admittedly , this was the first refusal of
this kind to have taken place, and the reasons and cir-
cumstances leading to the group activity were peculiar
to this occasion. In fact, the following day, December
23, Kellerhouse and Gordon and DeGroot , each worked
between 11-1/4 and , 12 hours.
The second incident was also unique to its facts and
circumstances . While one could argue that the employees
were again refusing to work overtime by refusing to stay
and start their workday at 3 p.m. in fact, the plumbers
were protesting their inability to perform work during
their regular workday, after having arrived between 6:57
and 8:03 on a day during inventory week in which many
other employees were either off, on earned vacation, or
earning extra money assisting at inventory . Having found
that the work problem was not resolved and their sug-
gestions had been rejected before they left, and, further
that they notified supervision and received no encourage-
ment that materials ' would be ,made available to them or
that if they remained , work could be accomplished, their
concerted leaving hardly constitutes part of a pattern of
intermittent work stoppage. Had they remained to 3 p.m.
831
and then started a full workday , their vacation time,
whether paid or not, would have been adversely affect-
ed, and their normal work hours would have been
wasted.
I thus conclude that both group walkouts were con-
certed protected activities under Section 7 of the Act.
Even if the two incidents could be said to be related
and to have arisen from an objection to anticipated
lengthy overtime assignments , the Board has concluded
that two stoppages , even of like nature, are insufficient to
constitute evidence of a pattern of recurring , and there-
fore unprotected, stoppages . Robertson Industries, 216
NLRB 361, 362 (1975); Crenlo, 215 NLRB 872, 879
(1974).
Respondent also asserts that on December 22, the em-
ployees agreed to work overtime for time-and-a-half
their regular rate. Likewise , Respondent claims that on
December 29, the employees were informed of a resolu-
tion of the problem regarding access to supplies and
agreed to make a list of those supplies removed from in-
ventory. I have found that no such agreement was made
on December 22 and that when the employees clocked
out on December 29, they still had no access to neces-
sary plumbing materials and supplies . However, even if
one could conclude on this record that the plumbers had
agreed to remain on the job on December 22 for the re-
ceipt of overtime pay, and then changed their minds, I
agree with the General Counsel (G.C. Br. p. 32) that
such an agreement by this unorganized and unrepresent-
ed complement does not constitute a clear and unmistak-
able waiver of their right to later concertedly withhold
their services as the law requires for such an agreement
to be effective as a waiver of Section 7 rights . See gener-
ally Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708
fn. 12 (1983), where the Court reaffirmed the proposition
that it will not infer from a general contractual provision
that the parties intended to waive a statutorily protected
right unless the undertaking is "explicitly stated" and
then noted that the courts of appeals have agreed that
the waiver of a protected right must be expressed clearly
and unmistakably . Here , the employees were dealing di-
rectly and immediately in oral exchanges with the plant
manager, and could not be reasonably held to have
knowingly forfeited their right to later protest what they
perceived to be their Employer's unfair treatment of
them late in the afternoon of December 22.
As to the events on December 29, even if Respondent
could have shown that it was not aware of the protected
nature of the employees' activity, it still was not legally
justified in relying on their conduct as reason to dis-
charge them. As noted by the Supreme Court in NLRB
v. Washington Aluminum Co., 370 U.S. 9 (1962), employ-
ees do not necessarily lose their right to engage in con-
certed activities under Section 7 merely because they do
not present a specific demand upon their employer to
remedy a condition they found objectionable. As held by
the Board in Meyers Industries, and ultimately affirmed,
cited supra at 268 NLRB, 493 at 497: "Once the activity
is found to be concerted , an 8(a)( 1) violation will be
found if, in addition, the employer knew of the concert-
ed nature of the employees' activity , the concerted activ-
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ity was protected by the Act, and the adverse employ-
ment action at issue (e.g., discharge) was motivated by
the employees' protected concerted activity." In any
event, contrary to Respondent's claim that on neither
December 22 nor 29 December did the plumbers com-
municate their work-related objections, I have found
such notice and a reaction of Respondent sympathy with
their predicament on December 22 and an inability to re-
solve their work problem on December 29.
Here, Respondent made much on cross-examination of
the plumbers of the fact that they left in a group at the
same time, clocking out together at 9:56 a.m. This to-
gether with testimony of Satkowski and others estab-
lishes Respondent's acute awareness of the concerted
nature of the employees' action on December 29. There
is also no doubt that the events of December 29 (coupled
with those of December 22) triggered Respondent's im-
mediate decision to replace the men, which it implement-
ed commencing December 30. Having now concluded
that the employees' conduct on both December 22 and
December 29 was both concerted and protected, I also
conclude that by terminating them because of their en-
gagement in such activity, Respondent has committed
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
Respondent nonetheless contends that as to both walk-
outs, inasmuch as the men left Chelsea Homes without
adequate staffing to complete and ship homes which
were scheduled for delivery, their conduct should not be
accorded statutory protection and it should be privileged
to replace them. Respondent admitted that approximately
20 percent of the time shipping schedules had not been
met with no adverse consequences to the employees re-
sponsible. Instances in which employees were summarily
discharged, for sleeping on the job and the like, hardly
equate with the employees' refusal to work 6 additional
hours of overtime of which they were informed at the
end' of their regular workday, and their refusal to remain
unoccupied and unemployed for 5-1/2 hours of their reg-
ular workday because supplies were unavailable to them.
It is also interesting to note that the plumbers' replace-
ments had been fired apparently for leaving the work-
place without prior notice or opportunity to obtain satis-
factory replacements for the day, that Respondent offi-
cials became aware generally of the circumstances under
which the Modern Home plumbers were summarily dis-
missed, and yet did not consider these facts an impedi-
ment to their hiring. Furthermore one of the houses was
under contract to a joint speculative venture in which
Respondent officials were participating, a circumstance
which appears somewhat removed from a failure to meet
a shipping schedule for a stranger, third-party customer.
The plumbers' extensive overtime on December 23, as
well as the circumstances surrounding their refusal to
remain on December 22, shows that the employees' con-
duct was not intended to generally disrupt Respondent's
work schedules: The events of December 29 should also
be viewed as beyond the employee's own control since
the Respondent's inability to make work supplies avail-
able to them excused their concerted leaving of the
workplace. In any event, so long as the concerted activi-
ty is not unlawful, violent, in breach of contract, or dis-
loyal, even if in breach of an employer's rules, it will
generally be held to be protected. See State County Em-
ployees AFSCME Louisiana Council 17, 250 NLRB 880,
882 (1980). Aside from the fact that Respondent relies at
21 and 22 of its brief on cases involving a concerted ban
by employees on overtime and sympathy strikes and re-
lated partial work stoppages, not germaine to the facts at
bar, a number of the cases cited also involve union con-
duct in support of its bargaining position, hardly compa-
rable with the unorganized workers' single day's unrelat-
ed protests in the instant case.
Respondent finally contends that the theory of viola-
tion grounded on its interference with protected concert-
ed activity was neither encompassed by the complaint
nor otherwise made part of the proceeding. Once Re-
spondent defended the discharges on facts which consti-
tuted a basis for finding another violation, Respondent
could not be heard to complain that it lacked notice or
was surprised by the Government's reliance on them.
See Continental Can Co., 291 NLRB 290 (1988). Further-
more, Respondent's defense and the facts and circum-
stances relating to it were fully litigated at the hearing.
The complaint is also broad enough to encompass the
theory advanced by virtue of the conclusionary language
set forth in paragraphs VIII (including reliance on Re-
spondent terminations of the plumbers for having en-
gaged in "concerted activities for the purpose of collec-
tive bargaining or mutual aid or protection") and X (al-
leging the discharges as violative of both Section 8(a)(1)
and (3) of the Act). Finally, once evidence of Telesz' re-
marks to Carr relating to his reasons for terminating the
plumbers came into the record, General Counsel success-
fully amended the complaint to allege them as threats
themselves violative of Section 8(a)(1), thereby placing
Respondent on specific notice that its admitted conduct
in dismissing the plumbers for their work-related activi-
ties was now an issue in the case.
As to Carl Morgan, I conclude that in terminating
him, Respondent was motivated by his union and pro-
tected concerted activities.
Morgan, with Gordon, delivered the union notices to
Satkowski early on January 5, which included his name
as a member of the union committee. The day before,
January 4, he and Farber distributed union authorization
cards at the Plant. That Respondent had some knowl-
edge of the startup of a union drive that day is estab-
lished by Telesz' questioning of Supervisor Lapinski on
January 4.
Morgan was later the object of criticism from Vice
President Telesz for having acted as a union witness for
the key union employee Farber, during his work dispute
with Supervisor Marrocco on January 6. As I have
found, Morgan did not interfere with work on that occa-
sion but Marrocco reported his presence to Telesz, as
union representative for Farber, and Telesz directed
Morgan to cease acting in that capacity for any employ-
ee on work-related disputes. Morgan's conduct was con-
certed, being present and lending his support by his pres-
ence to Farber's effort to obtain his release from further
work beyond the normal quitting time that day, and it
was protected since it related directly to a term and con-
CHELSEA HOMES 833
dition of employment and Morgan 's participation came
at the end of his own workday . It was also a direct
union activity since Morgan was introduced and Mar-
rocco took him to be a union representative in the trans-
action in which he , Marrocco , was disputing Farber's
effort to leave work.
Morgan thus showed that as a prominent member of
the Union's committee he was willing to act in that ca-
pacity to assist fellow employees.
Respondent had shown its animus toward the Union
for the first time in May 1987, when Fabri acknowledged
his surveillance of a union meeting and threatened to
close the plant rather than deal with a union for the em-
ployees. The day before, January 5 , 1988, Plant Manager
Satkowski had warned the plumbers he was terminating
them and that they should not have gotten involved with
the Union.
During the same timeframe in which Telesz directed
Morgan to cease his protected concerted activity, a
group of Respondent's supervisors and managers had
gathered together in a discussion which included men-
tion of Farber's name and submission of his timesheet,
Morgan was then questioned as to his incentive status
and Supervisor Marrocco learned from both Morgan and
his supervisor that Morgan did not want to be on the in-
centive program.
Before the next workday , Morgan learned from his
brother that the Respondents managers and supervisors
had agreed to put him on incentive and if he would not
agree, he would be placed in the swing department. Carl
Morgan's brother, Michael, failed to honor a subpoena to
testify on behalf of the General Counsel . While Carl
Morgan's testimony was hearsay as to the truth of the
matter asserted-the decision to place him on incentive
the following day or to reassign him-and thus could not
be received for its truth , it could be and was received to
establish Morgan's state of mind when he was called to
Satkowski's office the following morning . At that meet-
ing, Morgan refused placement on the incentive program
and was fired for that refusal . I find that Morgan was in
all likelihood guided in his initial responses at this meet-
ing by his knowledge received from his brother that he
would be reassigned . I say initial responses , because by
the time Satkowski had produced the statement he was
requested to sign confirming his refusal , it had become
clear to Morgan , and his testimony confirms this, that
Respondent was determined to let him 'go and not reas-
sign him as he had been led to believe.
The circumstances surrounding the events of June 4, 5,
and 6 lead me to conclude that Respondent chose this
particular occasion to place Morgan on incentive, know-
ing he would refuse the program , as a pretext to shield
its true motive in ridding itself of a staunch union advo-
cate.
Although Morgan had worked 30 days previously a
year and a half ago in the same department , he had not
been placed on the incentive program at that time, nor,
apparently , was that period of work taken into account
in evaluating his experience and skills after more than 6
weeks had elapsed since his return to employment on
November 24, 1987. Until January 7 , 1988, Morgan had
never been told he would be required to participate in
the program.
Because of the facts I have cited , Respondent's selec-
tion of the morning of January 7 , immediately following
his union activity and run-in with Telesz, to inform him
of this decision is highly suspect . When combined with
Respondent's production of a prepared statement, Sat-
kowski's refusal to inform Morgan of the adverse conse-
quences of his signing it, and Respondent's failure to re-
assign Morgan then or at any subsequent time when
openings admittedly became available in any incentive
positions for which he was qualified,5 I conclude that
Morgan was terminated on January 7, 1988, in violation
of Section 8(a)(3) and (1) of the Act.
Respondent offered the preliminary New York State
unemployment compensation determination denying
Morgan benefits in support of its defense that Morgan
voluntarily quit his employment by refusing incentive
pay status . The determination, as noted, was preliminary,
and was not based on a record made at a hearing. For
this reason , and because there is no indication of what
evidence , if any, the tribunal considered in reaching its
conclusion , I am not prepared to accord this determina-
tion controlling weight. See Magic Pan, Inc., 242 NLRB
840 (1979) and cases cited in the judge 's decision at 841.
I have already considered some of the alleged acts of
interference in the course of dealing with the discharge
issues. Satkowski 's comments about the plumbers' union
involvement during their exit interviews constitutes an
independent threat and warning that such conduct will
not be tolerated and is violative of Section 8(a)(1) of the
Act. Telesz ' direction to Morgan to cease his protected
concerted activity , while not containing an explicit threat
of adverse consequences for such continued activity, was
sufficiently emphatic and contained sufficient suggestions
of reprisal (he did not need Morgan around to be a wit-
ness everytime he talked to one of his employees) by a
senior official with the authority to implement his orders
that I conclude it was intended to discourage employees
from and , also constitute a threat of reprisal for, the con-
tinued exercise of Section 7 rights in violation of Section
8(a)(1).
Supervisor Paul Lapinski's suggestion to Wayne
Farber that he look for another job down the road after
Farber defended the Union 's role in aiding employees
obtain improved benefits expresses the sentiments that
Farber's union adherence was strongly disapproved by
his employer and conveyed the clear message that sup-
port for the Union and continued employment are not
compatible . The circumstances under which these re-
marks were made show that in the presence of a group
of employees , Farber was singled out by Lapinski for ex-
treme verbal abuse and personal disparagement and hu-
miliation of a kind intended to achieve the result sought,
to wit, Farber's removal from the work force, a result ul-
timately achieved when Farber later quit his job because
5It is apparent that Morgan 's later participation in union leaflettmg
with which Respondent sought to interfere directly and through the
intercession of town police surely played a role in Respondent 's failure to
recall him to nonincentive employment , notwithstanding Satkowski's
claimed failure of memory as to his offer , which I do not credit
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the abuse he had received. Such demeaning and insult-
ing remarks as these made by Lapinski when motivated
and directed toward employees because of their union
activity, as was the case here, are themselves violative of
the Act. Kenrich Petrochemicals, 294 NLRB 519 (1989),
and cases there cited. I conclude that Lapinski's remarks
constitute an implied threat of discharge in violation of
Section 8(a)(1) of the Act. EDP Medical Computer Sys-
tems, 284 NLRB 1232 (1987), L. A. Baker Electric Co.,
265 NLRB 1579, 1580 (1982), and cases cited therein.
See also Bill Scott Oldsmobile, 282 NLRB 1073 (1987).
Telesz' statement to Carr that he wanted to terminate
the plumbers in part because they would walk off the job
without finishing the shippers constitutes threat of dis-
charge for engaging in protected concerted activities
made to an employee, also in violation of Section 8(a)(1).
Supervisor Paul Lapinski's suggestion to Wayne
Farber that he look for another job down the road after
Farber defended the Union's role in aiding employees
obtain improved benefits expresses the sentiments that
Farber's union adherence was strongly disapproved by
his employer and conveyed the clear message that sup-
port for the Union and continued employment are not
compatible. The circumstances under which these re-
marks were made show that in the presence of a group
of employees, Farber was singled out by Lapinski for ex-
treme verbal abuse and personal disparagement and hu-
miliation of a kind intended to achieve the result sought,
to wit, Faber's removal from the work force, a result ul-
timately achieved when Farber later quit his job because
of the abuse he had received. Such demeaning and insult-
ing remarks as these made by Lapinski when motivated
and directed toward employees because of their union
activity, as was the case here, are themselves violative of
the Act. Kenrich Petrochemicals, 294 NLRB 519 (1989),
and cases there cited. I conclude that Lapinski's remarks
constitute an implied threat of discharge in violation of
Section 8(a)(1) of the Act. EDP Medical Computer Sys-
tems, 284 NLRB 1232 (1987). L. A. Baker Electric Co.,
265 NLRB 1579, 1580 (1982), and cases cited therein.
See also Bill Scott Oldsmobile, 282 NLRB 1073 (1987).
Telesz' statement to Carr that he wanted to terminate
the plumbers in part because they would walk off the job
without finishing the shippers constitutes a threat of dis-
charge for engaging in protected concerted activities
made to an employee, also in violation of Section 8(a)(1).
As to the incident on the roadway on February 25,
1988, it has been established to my satisfaction that nei-
ther of the two discharged employees were handbilling
on Respondent's property. Their own testimony as to
their location on a shoulder within 6 feet of a public
roadway coupled with the conduct of the police officers
confirming that neither was trespassing nor interfering
with traffic is convincing that in their distributions they
were operating on public property. While Satkowski
made an approach to Morgan, while 'he was assisting a
disabled motorist on the entrance road, it is clear that by
first confronting Gordon on the shoulder off Route 9W
and then stating to Morgan he did not care that he was
returning them to their 6-foot easement, Respondent's
concern and intent was to remove the employees from
their public location. Respondent's directions to them to
cease their activity and then its summoning of the police
to remove them constitutes a direct interference with
union handbilling activity in violation of Section 8(a)(1)
of the Act. See Gainesville Mfg. Co., 271 NLRB 1186
(1984), where the Board accorded like protection to non-
employee organizers on a right of way in front of the
employer's premises, in the absence of any evidence of a
no-solicitation/no-distribution rule, that the property was
posted against trespassing, or that any traffic hazard was
created. There is no evidence that Respondent ever oth-
erwise sought to place limits on public access to its prop-
erty. Since both Morgan and Gordon were unlawfully
discharged employees participating in an organizing cam-
paign, even if they had been on Respondent's property,
under the balancing test enunciated in Fairmont Hotel,
282 NLRB 139 (1986), their Section 7 rights clearly out-
weighed Respondent's property rights, and their activity
should thus be accorded the same protection.
Finally, I deal with Respondent's letter campaign, to
induce employee withdrawals from union authorization
and membership. In its first letter in evidence, dated Feb-
ruary 5, 1988, Fabri informed employees that their sign-
ing of union authorization cards "can have serious conse-
quences" and goes on to enumerate them. In the second
letter, dated February 8, 1988, Fabri now enclosed a
form withdrawal request after first explaining that sever-
al, unnamed employees had sought information about
their withdrawal. No record evidence supports this
claim. By now providing a sample form and pread-
dressed envelope to assist employees avoid the serious
consequences of union authorization and membership, in
the context of the unlawful campaign it was waging by
unlawfully discharging and threatening employees, Re-
spondent exceeded the permissible bounds of providing
ministerial or passive aid in withdrawing from union
membership and actively solicited, encouraged, and as-
sisted such withdrawals in violation of its duty to avoid
such inteference with employee rights under Section
8(a)(1) of the Act. See Arkansas Lighthouse for the Blind,
284 NLRB 1214 fn. 44 (1987); S. E. Nichols, Inc., 284
NLRB 556 fn. 5 (1987).
CONCLUSIONS OF LAW
1. The Respondent, Chelsea Homes, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners of
America, Local Union No. 1075, AFL-CIO is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By informing its employees they were being dis-
charged because they had gone to the Union, by direct-
ing its employees, under implied threats of unspecified
reprisal, to cease engaging in concerted activities for
mutual aid or protection, by threatening employees be-
cause of their union activity by telling them that support
for a union and continued employment are not compati-
ble, by soliciting and encouraging and providing assist-
ance to its employees to withdraw their union authoriza-
tion cards, and by demanding and summoning local
police to implement its demand, that employees remove
CHELSEA HOMES
themselves from public property and cease lawful hand-
billiing on behalf of the Union, Respondent has re-
strained and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act and has there-
by engaged in and is engaging in, unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
4. By discharging employees William DeGroot, James
Gordon, Donald Kellerhouse, and E. Shawn Pierse be-
cause they engaged in concerted protected activities for
their mutual aid or protection, Respondent has engaged
in and is engaging in unfair, labor practices within the
meaning of Section 8(a)(1) of the Act.
5. By accelerating the discharges of the above-named
employees and by discharging employee Carl Morgan
because they joined or assisted the Union, and engaged
in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Respondent has not engaged in any unfair labor
practices not found here; specifically, Respondent ha s
not violated the Act by discharging the employees
named above in paragraph 4 other than as described in
paragraphs 4 and 5.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act.
Having found that Respondent unlawfully accelerated
the discharges of employees William DeGroot, James
Gordon, Donald Kellerhouse, and E Shawn Pierse and
independently unlawfully discharged the employees on
the same date, as well as employee Carl Morgan 2 days
later. I shall recommend that Respondent be ordered to
reinstate them to their former position or, if no longer
available, to substantially equivalent positions, without
prejudice to their seniority and other rights and privi-
leges, and make them whole for any loss of earnings or
other monetary losses they may have suffered as a result
of the discriminations against them, less interim earnings,
if any, with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).6 I shall also recom-
mend that Respondent be ordered to expunge any file
references to the unlawful discharges of the employees
and notify them, of this action and that evidence of the
unlawful discharges will not be used as a basis for fur-
ther personnel action concerning them. See Sterling
Sugars, 261 NLRB 472 (1982).
8 Under New Horizons, interest is computed at the "short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621 Interest accrued before January 1, 1987 (the effective
date of the amendment), shall be computed as in Florida Steel Corp, 231
NLRB 651 (1977).
835
On these findings of fact and conclusions of law and
on the entire record, 7 I issue the following recommend-
ed"
ORDER
The Respondent, Chelsea Homes, Inc., Marlboro, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees in regard to their hire, tenure of employment,
or other terms and conditions of employment because
they have become members of or engaged in activities
on behalf of the United Brotherhood of Carpenters and
Joiners of America, Local Union No. 1075, AFL-CIO or
any other labor organization or because they engaged in
concerted activities for their mutual aid or protection.
(b) Informing its employees they were being dis-
charged because they had gone to the Union, directing
its employees, under implied threats of unspecified repris-
al, to cease engaging in concerted activities for mutual
aid or protection, threatening employees because of their
union activity by telling them that support for a union
and continued employment are not compatible, soliciting
and encouraging and providing assistance to its employ-
ees to withdraw their union authorization cards, and de-
manding, and summoning local police to implement its
demand, that employees remove themselves from public
property and cease lawful handbilling on behalf of the
Union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to William DeGroot, James Gordon, Donald
Kellerhouse, E. Shawn Pierse, and Carl Morgan immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole for
any loss of earnings or other benefits they may have suf-
fered by reasons of their unlawful discharges in the
manner set forth in the remedy section of this decision.
(b) Remove from its files any reference to the unlawful
discharges of William DeGroot, Janles Gordon, Donald
Kellerhouse, E. Shawn Pierse, and Carl Morgan,' and
notify them in writing that this has been done and that
evidence of the unlawful discharges will not be used as a
basis for future personnel actions against them.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all' pay-
roll records, social security paymentt records, timecards,
personnel records and reports, and all other records nec-
7 The General Counsel's motion to correct transcript filed simulta-
neously with his posttnal brief is granted, and the transcript is ordered
corrected in accordance therewith
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its principal place of business located at
Route 9W in the city of Marlboro, State of New York,
copies of the attached notice marked "Appendix."9
Copies of the notice, on forms provided by the Regional
Director for Region 3, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
9 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 Nation-
al 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."
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other materlal.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in respect to the allegation that the Respondent
terminated the employment of William, DeGroot, James
Gordon, Donald Kellerhouse, and E. Shawn Pierse in
violation of Section 8(a)(1) and (3) of the Act other than
as found herein.