Cornwell Co., Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1966

161 N.L.R.B. 807 (N.L.R.B. 1966)

CORNWELL COMPANY, INC. 807
North America, AFL-CIO, Local 89, or any other labor organization, by
discharging any of our employees because of their concerted or union activities
or in any other manner discriminate in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form , join, or
assist the above-named Unions, or any other labor organization , to bargain
collectively through representatives of their own choosing , or to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all such activities.
WE WILL offer immediate and full reinstatement to Juan G . Arellano, Joe
Estuddlo, Jose Lopez, Alfred R. McClure, Edward Thornton , Ben Schmidt,
Harvey Walker, Norman G. Wallace, and Jack Whittle and make them whole
for any loss of pay they may have suffered because of the discrimination
against them.
WE WILL notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal
Military Training and Service Act, as amended , after discharge from the
Armed Forces.
All of our employees are free to become , remain, or refrain from becoming or
remaining, members of the above -named or any other labor organization . We will
not discriminate in regard to hire or tenure of employment , or any term or con-
dition of employment , against any employee because of membership in or activity
on behalf of any labor organization.
JOHN HANSEN MATERIALS & HOUSE MOVING, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, 849
South Broadway, Los Angeles, California 90014, Telephone 688-5229.
Cornwell Company , Inc. and United Furniture Workers of
America, AFL-CIO. Case 25-CA-2432. November 7, 1966
DECISION AND ORDER
On July 26, 1966, Trial Examiner Maurice S. Bush issued his
Decision in this proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action , as set forth in the attached Trial Examiner 's Decision.
He also found that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint 1 and recommended
dismissal of those allegations . Thereafter , Respondent filed excep-
tions to the Trial Examiner 's Decision and a supporting brief, and
the General Counsel filed a brief in support of the Trial Examiner's
Decision.
I As amended at the hearing.
161 NLRB No. 72.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent consistent
herewith.2
The Trial Examiner found that Respondent discharged employee
Junior Lee Estes because of his leadership in efforts to organize
Respondent's plant, and because he had given testimony under the
Act against Respondent in an earlier unfair labor practice case, in
violation of Section 8(a) (3) and (4); respectively. We do not agree.
The United Furniture Workers of America, AFL-CIO, herein
the Union, began organizational efforts in Respondent's plant in mid-
1963, which continued at least until the time of the discharge here in
question.s Estes became a member of the Union and began attending
meetings and distributing union cards in August 1963. His name
was included among the employees who formed the "Cornwell
Organizing Committee," a list of whom was received by `Respondent
on two occasions in March 1964, and again in early, September 1965.
On October 25, 1965, Estes appeared and gave testimony at a Board
hearing in an earlier unfair labor practice proceeding involving this
Respondent.4 He was suspended on October 29, 1965.
Respondent began receiving reports in early October 1965 that some
-employees in its finishing department were drinking intoxicants on
the job. These rumors implicated Estes and employees William Vice
and Gerald Appleby. Respondent began to watch the finishing
department to discover the source of the intoxicants. Vice and
Appleby had on several occasions borrowed Estes' 'thermos bottle
during lunch hour. On October 29, Vice was seen taking the thermos
from Estes' work station; then he and Appleby left the plant for
lunch. Estes had his lunch in the-plant. Appleby returned the thermos
to Estes' work station. Plant Superintendent Gehl seized the thermos,
removed the cap and plug, determined; that it smelled of,•liquor; and
proceeded to the office of President Cornwell with Estes following.
Vice and Appleby were also called to Cornwell's' office.
2 In the absence of exceptions, we adopt pro forma the Trial Examiner ' s recommendation
-that the allegations of the complaint pertaining to Section 8(a) (1) be dismissed.
3It was unsuccessful in elections held in March and July 1964 and in August 1966._.
4 169 NLRB 42. -
CORNWELL COMPANY, INC. 809
All three admitted the thermos smelled of alcohol, but denied
having placed any liquor in it that day, and each denied having ever
been possessed of or having partaken of intoxicants on the premises
or while on the job.5 Estes told Cornwell he had brought the thermos
to work that morning filled only with coffee, which had been drunk
by 9:30 a.m. ' He admitted that others had shared his coffee, but
refused to reveal their identities. Respondent in effect told him it
would thus have to assume that he had himself placed in the thermos
whatever should be found there, and had himself consumed the entire
contents. It suspended him on the grounds that it suspected that the
thermos contained alcohol, and informed him it would have the
contents chemically analyzed; if there were no alcohol present,
Respondent would apologize and reinstate him with backpay, but if
alcohol were found, it would discharge him. The test showed alcohol,
and Respondent, on November 8, 1965, informed Estes that he was
discharged for having violated company rule 5 (which prohibited
the possession or use of intoxicants on company premises ) and rule
3 (which prohibited "dishonesty").
Respondent contends that it was justified in discharging Estes for
his possession and use of intoxicants on company premises and pre-
sumably while on the job. It states that it has not been faced with a
great number of problems with regard to the possession or use of
intoxicants on its premises, but has been consistent with regard to
the handling of such problems. It contends it has always instructed
its supervisors that when an employee reports to work under the
influence of intoxicants, but has not begun to work, he should be
sent home with a warning that repetition of such conduct may lead
to discharge. If an employee is found in possession of intoxicants
or is found drinking them on the job, he should be discharged at
once. Respondent's records show only 12 instances in 23 years in
which the reason for discharge was violation of rule 5. Some employ-
ees were warned more than once; others we're discharge upon a sec-
ond offense; some were later rehired. Yet others were immediately
discharged.
The Trial Examiner's inference, from the small number of dis-
charges for violation of rule 5 recorded and from the inconsistencies
with respect to warnings and the number of warnings given, that
Respondent has been lenient with respect to rule 5, and must have
ignored many violations, is not warranted. The Trial Examiner
6 However , the record In this case establishes that Estes had brought the thermos to
work that morning filled with a mixture of coffee and vodka, which he, Vice, and Appleby
had consumed by 9.30 a in. It further establishes that Vice had put a half pint of apple
brandy in the thermos at noon, but the contents had leaked out on the way back to the
plant.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inferred from one incident, in which an employee found in an intoxi-
cated condition and in possession of intoxicants on the premises was
sent home with a warning rather than immediately discharged, that
Respondent did not follow its,alleged practice. However, the record
shows instances of immediate discharge; one exception does not
destroy a rule. The Trial Examiner found that the subject of posses-
sion or use of intoxicants on the job never arose at management meet-
ings, whereas the record contains conflicting evidence in this regard."
The Trial Examiner gave undue weight to the fact that Vice and
Appleby were "promptly exonerated" from responsibility, while Estes
was discharged. Although Respondent had reason to believe Vice and
Appleby had drunk intoxicants, it had no direct evidence that either
had placed intoxicants in the thermos. It afforded Estes the oppor-
tunity to tell how the liquid in the thermos came to be there, but
Estes chose to shoulder the responsibility. Nor was the exoneration
so prompt. Vice and Appleby were questioned, and gave an explana-
tion which cannot be said to have been clearly implausible. The Trial
Examiner stated that Estes "was discharged for the possession of
alcohol which the evidence shows his colleagues, Appleby and Vice,
put in Estes' borrowed thermos ... [knowing] from prior rumors
that the names of Appleby and Vice had been linked with Estes...."
It must be remembered that Respondent did not know on October 29
that Appleby and Vice had put the liquor in Estes' thermos ,T and,
further, that Respondent had been looking for the source of the
liquor which employees in the finishing department were rumored
to be consuming. It appeared to Respondent that Estes might have
been that source, he was given his chance to defend, and chose to
remain silent. The Trial Examiner observed that Estes was dis-
charged "at a time when Respondent was experiencing an acute labor
shortage." But Respondent had, in the 17-month period prior to the
hearing herein, found replacements for 432 employees who either
quit or were discharged; and one witness testified that Respondent
replaced Estes immediately.
The unfair practices found in the earlier case occurred from 8
months to 2 years prior to the discharge of Estes. There is no evidence
to show that since those events the effort to organize the plant con-
tinued actively until at least the time of Estes' discharge. There has
also been an election. There has been no showing that Respondent
interfered in any way with such activity. There is no showing that
Estes was a peculiarly active union adherent. Nor was his testimony
8 One foreman testified that the subject was raised at a foreman's meeting, and the
policy of the Company (as set forth above) explained in clear terms.
7 This was not admitted by vice or Appleby until the hearing herein.
CORNWELL COMPANY, INC. - 811
at the hearing in the prior proceeding particularly damaging to or
"against Respondent." Other employees, including the only chairman
of the organizing committees "since the beginning," who also testified,
are still in the employ of Respondent."
The Trial Examiner concluded that Estes' discharge for the alleged
possession of alcohol was "pretextual," that he was in fact terminated
because of his leadership in efforts to organize Respondent's plant,
and that the same circumstances also compel the conclusion that he
was discharged because he had given testimony under the Act against
Respondent. He "implied [sic] from the testimony in the case" that
Estes' discharge was pursuant to a carefully devised plot "to lay
for him" and to "catch him with the goods." In view of all we have
said above, we do not feel that the inference is warranted.
Respondent did not have a-clear practice with regard to violations
of company rule 5. It sometimes was lenient, and it has on occasion
immediately discharged employees for possession or use of intoxi-
cants on the premises. While it may have treated Estes harshly in
view of such mixed practice, such harsh treatment does not alone
indicate a discriminatory motive. The General Counsel, in our opin-
ion, has not sustained the requisite overall burden of proving that
Respondent discharged Junior Lee Estes because of his activities on
behalf of the Union or because he testified at the Board hearing in
the earlier proceeding. Accordingly, we shall dismiss the complaint.
[The Board dismissed the complaint.]
8 Furthermore , while the Board in the earlier case found that Respondent unlawfully
discharged certain of its employees , it also found that Respondent 's discharge of certain
other employees , at least one of whom was known to be active on behalf of the Union,
was not unlawful.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The issues in `this proceeding are whether the Respondent Cornwell Company,
Inc., has engaged in certain unfair labor practices , more specifically set forth below,
in violation of Section 8(a)(1), (3 ), and (4 ) of the National Labor Relations Act.
The case was heard at Paoli, Indiana , before Trial Examiner Maurice S. Bush
on May 17, 18, and 19 , 1966 . Briefs were filed by the General Counsel and
Respondent' after the hearing. These have been carefully reviewed and considered.
The complaint herein and an original amendment thereto were issued on Febru-
ary 2 and April 20, 1966 , respectively , pursuant to charges duly filed and served.
The complaint was further amended at the hearing to set forth an independent
violation of Section 8 (a) (1) of the Act as follows: "On or about May 16, 1966,
Respondent , by its supervisor and agent, Gene Cornwell, engaged in surveillance
of a meeting of employees engaged in for the purposes of preparing for the NLRB
hearing, in violation of Section 8(a)(1)."
I Subsequent to the hearing and pursuant to leave granted at the hearing, the Respond-
ent on May 27, 1966, filed a motion that there be received in evidence as Respondent's
Exhibit 3 a document known as reg . 802 of the Indiana Employment Security Board. A
separate order has been issued granting this motion and directing that the document be
incorporated in the record as Respondent's Exhibit 3(a) and ( b), inclusive.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's answers to the complaint , as amended , deny the unfair practices
therein charged.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Cornwell Company , Inc., an Indiana corporation , is engaged in the manufacture
of cabinets for television , radio, and hi-fidelity sets at its plant in Paoli, Indiana,
which is also - its principal office and place of business . In the past year , which is
a representative period , the Respondent manufactured , sold, and shipped from its
Paoli plant finished products valued in excess of $50 ,000 to points outside Indiana.
H. THE LABOR ORGANIZATION
The United Furniture Workers of America , AFL-CIO, herein called the Union,
is a labor organization within the meaning of the Act.
HI. THE ISSUES
The issues presented are as follows:
1. Whether the Respondent , in violation of Section 8(a)(3) and ( 1) of the Act,
discriminately discharged Junior Lee Estes on October 29, 1965, for engaging in
union activities.
2. Whether the Respondent , in violation of Section - 8(a)(4) of the Act, also
discharged the said Estes for giving testimony under the Act.
3. Whether the Respondent , in violation of Section 8(a)(1) of the Act, on the
day prior to the opening of the hearing herein engaged in unlawful surveillance
of an employees ' meeting held for the purpose of preparing for the present hearing.
A. Preliminary matters
Two motions made by counsel for the General Counsel at the hearing 2 were
taken under advisement for ruling in this Decision . Both relate to a prior consoli-
dated proceeding tried between July 19 and October 29, 1965 , before another Trial
Examiner of the National Labor Relations Board involving earlier charges of
unfair labor practices against the same Respondent in which the record consists of
985 pages and some 90 exhibits , including rejected exhibits . The consolidated pro-
ceeding is identified by Cases 25-CA-1912, 1952, 2106, and 2185 . The first motion
requests that the present Trial Examiner incorporate in the instant proceeding by
reference the transcript and all of the exhibits in the consolidated proceeding. The
second motion requests that the Trial Examiner take official notice of the Trial
Examiner 's Decision , dated March 15, 1966, in the consolidated proceeding in the
present proceeding.
On June 10, 1966, or less than a month after the close of the hearing in the
present case , the Board issued its Decision and Orders in the mentioned consoli-
dated proceeding , adopting the findings , conclusions , and recommendations of the
Trial Examiner therein.
The- motion that there be incorporated in the present proceeding by reference
the transcript and exhibits in the earlier consolidated proceeding, which does not
identify which portions of the transcript and which exhibits are pertinent hereto,
is granted only for the purposes of showing Respondent 's antiunion background
and in all other respects denied , as the earlier proceeding involves events which are
statutorily time barred on ,the issues in the instant case . E. V. Prentice Machine
Works,,Inc., 120 NLRB 1691, 1692 ; N.L.R.B. v. Reed & Prince Manufacturing
Company, 205 F.2d 131, 139 (C.A. 1); Paramount Cap Manufacturing Company
v. N.L.R.B., 260 F .2d 109 (C.A. 8); Local Lodge No. 1424 Machinists [Bryan
Manufacturing Co.] v. N.L.R.B., 362 U.S. 411 . The motion is also denied to the
extent indicated because in the judgment of this Trial Examiner the issues herein can
be decided without the enlargement of the present record to include the record in the
consolidated proceeding.
2 Subsequently reduced to writing pursuant to direction and filed with the Division of
Trial Examiners herein.
3 Reported in 159 NLRB 42.
CORNWELL COMPANY, INC. 813
In view of the fact there is now a Board Decision in the consolidated proceeding,
counsel for General Counsel in his brief has modified his earlier request that official
notice be taken of the Trial Examiner's Decision in that proceeding to a request
that the present Trial Examiner take official notice of the Board's Decision in the
consolidated matter. This motion is also granted only for the purpose of showing an
antiunion background and in all other respects denied, for the same reasons as that
shown for the ruling on the prior motion.
B. Issues as to whether Junior Lee Estes was discriminately discharged for
giving testimony under the Act and for engaging in union activities
Paoli, Indiana, has a population of about 2,800. Respondent, as an employer of
nearly 600 persons, is Paoli's largest employer.
As heretofore noted, the present Respondent was also a respondent in a prior
consolidated proceeding before the Board before another Trial Examiner. The
Board, as also shown above, entered its Decision (159 NLRB 42) in the consoli-
dated proceeding on June 10, 1966, in which it adopted the findings, conclusions,
and recommendations of the Trial Examiner therein, including his recommendation
that a broad cease-and-desist order be entered "In view of the nature and variety
of unfair labor practices committed which indicate Respondent's basic disregard
of the fundamental rights of employees protected by the Act ...."
The present alleged discriminatee, Junior Lee Estes, while still in the employment
of the Respondent, participated as a witness in behalf of General Counsel in the
prior consolidated proceeding. He appeared and was seen by Respondent' s agents
and supervisors in the first of June 1965 session of that proceeding pursuant to
subpena, but he did not testify at that time. He appeared and testified on October 25,
1965, in the second or October session of the consolidated proceeding. He was
terminated by Respondent on October 29, 1965, under the circumstances herein-
after described for an alleged violation of company rules against the possession of
liquor by employees on company premises.
The principal company figures involved in Estes' termination were Gene Corn-
well, president and principal stockholder of the Company; Richard Gehl, general
superintendent of the plant; Forest Kerby, superintendent of the plant' s finishing
department; and William Brinson, foreman and direct supervisor over Estes in the
finishing room where Estes worked.
Estes commenced his" employment with the Company in its finishing department
on August 20, 1962, and when terminated had more than 3 years of employment
with Respondent. At the time of his termination he was receiving $1.82 an hour
as a stain and sealer sprayer, the highest rate applicable to that classification of
work. He had commenced his employment at $1.25 an hour and had risen to the
pay rate of $1.82 an hour, principally by merit raises. He was considered a valu-
able employee at the time of his termination by his foreman , William Brinson.
Estes became a member of the Union some time in 1963 and thereafter became
actively engaged in organizing Respondent's plant by attending . and sponsoring
union meetings and the solicitation of union cards. The Company became aware
of Estes' union activities as early as March 1964 when it received a copy of a letter,
dated March.4, 1964, sent to the Board, signed by 12 of its employees , headed by
the signature of Estes. This letter came into the possession of Respondent some 3
weeks prior to a representation election scheduled to be held on March 27, 1964,
pursuant to the petition' of the Union. The letter states in part: "Our purpose is
writing this letter is to go on record that we are leading this campaign and that we
intend to exercise our right to solicit members at proper times under the National
Labor Relations Act. 'Others will join as active leaders and we shall inform you
,of them upon their request."
Simultaneously with the mailing , of the above-described letter to 'the Board,
handbills were distributed to the employees at Respondent's plant which contained
a copy of the aforementioned letter to the Board, bearing Estes ' signature as the
lead signature. The handbill called upon the employees to participate in the forth-
'coming election of March 27. The parties have stipulated that a copy of the
handbill came into the possession of Respondent shortly after the distribution to
its employees.
On or about September 8, 1965, the Respondent gained further knowledge of
Estes' union organizing activities by a reason of the receipt of a copy of a letter,
dated September 7, 1965, sent to the 'Board and again bearing Estes' signature,
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among that of other employees, in which the Board and Respondent were notified
,that the signatories to the letter were . engaged in legitimate union activity
to'win majority support for our union. We also call this to your attention so
that there will be no doubt of our participation in open union activity. .
Approximately 2 months later on October 25, 1965, the fact of Estes' union
activities was again brought home to the Respondent at the aforementioned hearing
of the consolidated proceeding before another Trial Examiner when Estes testified
he had attended union meetings seeking to organize the Respondent.
On October 28, 1965, Estes was elected vice chairman of the Organizing Com-
mittee of ' the' Cornwell Company.
For many months prior to Estes' discharge of October 29, 1965, Respondent
suffered a shortage of both unskilled and skilled help, including the skilled type
of work Estes worked at in the plant.
Estes was terminated because of an alleged infraction of company rules for-
bidding the possession of alcoholic beverages by employees on the plant premises.
The rule, which has been in existence for many years, is currently set forth in a
company pamphlet dated July 1, 1964, entitled "Rules and Regulations," distributed
to Respondent's employees. The rule, designated by the pamphlet as rule No. 5,
reads as follows:
. Employees are expected to comply with the following rules; and failure
to do so may subject the employee to discharge or other appropriate disciplinary
measures.
5. Reporting for work while under the influence of intoxicants, or their
use or possession on company premises
It is established by the testimony of Respondent's president, Gene Cornwell,
that drinking on the job, as well as possession of alcohol on the job , and reporting
to work under the influence of liquor has never been a serious problem at Respond-
ent's plant, but that from time to time, as in all industry, the Company has had
some employee incidents involving alcohol.
The record shows that it was Estes' practice to bring with him a thermos bottle
of hot coffee when reporting to work.
One day some 3 weeks prior to Estes' termination, Kerby, the superintendent of
the plant's finishing department , received word from an employee in his depart-
ment that Estes had alcohol in his thermos bottle that day. This report was pre-
ceded by earlier rumors that some employees were drinking on the job in the
room where Estes worked . The employees who had reported the presence of
alcohol in Estes' thermos bottle obtained a sample of its contents in a Coke paper
cup and turned it over to Estes' foreman, Brinson, who noticed that it had a
faint odor of alcohol . Brinson , at the direction of Kerby, brought the sample to
Gehl, the plant superintendent, at his office towards the end of the day. The next
morning Gehl noted that the cup was gone, apparently thrown away by the
janitress. Estes was not apprised that he was under suspicion of violating the Com-
pany's anti-intoxicant rule, nor given any warning that an infraction of the rule
could lead to his termination.
In the late morning of October 29 , 1965, just prior to the plantwide noon lunch
recess, , Kerby again received word that Estes had alcohol in his thermos bottle.
This time the information came from another employee -informant . Kerby walked
by Estes' station and observed the bottle on the floor, but made no attempt to verify
the report that the bottle contained alcohol. Very shortly thereafter, Kerby received
further word from his informant that someone was taking Estes' bottle out of the
plant . The record shows that Estes from time to time during the lunch hour loaned
his thermos to a fellow employee , William Vice . On other occasions Estes would
ask Vice to bring coffee back in it. Estes, Vice, and one Gerald Appleby, also
employed in the finishing department , were friends . Kerby 's testimony establishes
that on the occasion herein question , he saw Appleby 4 carry Estes' thermos bottle
out of the, finishing room department during the lunch period.
4 Appleby testified at length herein on behalf of General Counsel Although both G eneral
Counsel and Respondent sought to have Vice testify on a voluntary basis , they were un-
successful and Vice did not testify in the proceeding At the time of the hearing herein,
Appleby was no longer-in the employment of Respondent.
CORNWELL COMPANY, INC. 815
Appleby and Vice 5 were together much of the lunch hour here in question.
Just prior to returning to the plant, Vice, according to the credited testimony of
Appleby, poured half a pint of brandy into Estes' thermos bottle. The two men
then proceeded to the plant, but discovered that they had lost the brandy when
they got to the plant because they had failed to put the stopper back in the
bottle, after it had been filled with the brandy.
Kerby's testimony shows that he observed Appleby and Vice as they were
returning to the plant with Estes' thermos bottle. He thereupon informed General
Superintendent Gehl of what had transpired during the past hour and received
instructions to ascertain if the thermos bottle had been brought back to Estes'
work station. Kerby looked in at Estes' work area, saw the thermos bottle on
the floor, and reported this to Gehl. Gehl then informed Kerby "that he would
take care of the situation."
Within a few minutes, Gehl was at Estes' station. Estes was spraying and did not
notice Gehl at first. Gehl, spotting the thermos bottle on the floor, picked it up,
unscrew the cover, and pulled out its plug. At this point Estes became aware of
Gehl's presence and action, seized the bottle from Gehl, protesting that Gehl had
no right to it. Ghel, still having the plug, put it to his nose and found that it
"smelled like liquor." He ordered Estes to President Cornwell's office, to which
they both proceeded, with Estes carrying the bottle and Gehl its cap and plug.
At Cornwell's office, Gehl explained to Cornwell what had happened. Cornwell
on examining Estes' thermos bottle found it, as far as he could tell, empty, but
smelling of liquor. Estes denied bringing intoxicants in the bottle that morning
or on any day,6 but admitted that the bottle smelled of alcohol. Cornwell, upon
learning that Vice and Appleby had had Estes' thermos during the noon hour
and having had prior rumors that they together with Estes had been involved in
drinking on company premises, called them in for questioning. Vice and Appleby
denied putting any liquor in the bottle during the noon hour, but also confirmed
that the bottle smelled of liquor.
While Estes, Vice, and Appleby were still in Cornwell's office, Respondent's
counsel herein, Leland B. Cross, Jr., who is also its counsel in the aforementioned
consolidated proceeding on which the hearing had just terminated that morning
at a nearby town, dropped in to see Cornwell on his way back to his office in
Indianapolis. Cross was apprised of the situation then under discussion with
respect to Estes' thermos bottle. Upon interrogation by Cross, the three employees
again denied that they had put liquor in Estes' thermos bottle that day. Decision
was eventually made, on Cross's recommendation, that the thermos bottle be sealed
and submitted to an authority for an analysis of its contents. Cornwell closed
the afternoon session by telling Estes that he was suspended, pending the receipt
of an analysis of the bottle's contents, and advised him that if the analysis showed
the contents to be nonalcoholic he would be restored to his job, but that if the
contents were found to be alcoholic he would be discharged. A little later that
afternoon, Plant Superintendent Gehl ordered Vice and Appleby back to work at
5 The testimony by other witnesses indicates that it was Vice, and not Appleby, who
carried out Estes' thermos bottle at the time here in question It is possible that Vice
picked up the bottle and then on the way out of the finishing department handed it to
Appleby. At any rate, this conflict of testimony is not relevant to the issues herein and has
no real bearing on the credibility issues in the case and accordingly need not be resolved
The relevant and important fact here is that Estes' thermos bottle was not in his possession
or custody for a period of about an hour during the lunch period on the day here in
question.
6 Contrary to Estes' denial to Cornwell that he had brought liquor into the plant in his
thermos bottle on the morning here in question. Estes' testimony shows that in fact lie had
brought his thermos bottle to the plant that morning filled with vodka and coffee and that
he and Vice and Appleby had consumed the contents of the bottle before 9.30 a in. that
day. Appleby's testimony also establishes this fact. But inasmuch as this was not known
to Respondent when it discharged Estes, it did not have any part in Respondent's deci-
sion to terminate Estes under the facts of record herein Similarly, Estes' admission at the
hearing that he had brought liquor into the plant some half a dozen times during his
3-year tenure with Respondent had no part in Respondent's determination to terminate
Estes because this information became known to Respondent for the first time at the
hearing.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their stations in the plant, after telling them that "under the circumstances" they
had not been drinking , were not under the influence of alcohol , and did not have
possession of alcohol on the job.
A chemical analysis of the contents of the sealed thermos bottle reached the
Respondent on November 8, 1865, in the form of a letter dated November 5, 1965,
from the State toxicologist . The toxicologist reported that the bottle had contained
approximately 4 milimeters of an alcoholic beverage of about 80 proof. Four
milimeters is something less than a tablespoon.
On November 4, 1965, or several days prior to the receipt of the report from
the State toxicologist, Respondent notified the Indiana Employment Security
Division on form 501 that Estes had been "Fired due to various circumstances
about drinking on the job."
On November 8, 1965, the Respondent notified Estes by letter under the sig-
nature of Plant Superintendent Gehl, at the direction of President Cornwell, that
he was discharged . The letter stated that he was being discharged because of the
Company's investigation , which included the State toxicologist 's report , showed
that he "did in fact have toxicants in your possession and use on October 29, 1965"
in violation of the Company 's aforementioned rule 5, and that Estes' denial that he
had brought an intoxicant into the plant that day also constituted a violation of
the Company's rule 3 which prohibited "Dishonesty."
The record shows that Respondent since its founding in 1943 has been quite
tolerant, rather than strict, in the handling of disciplinary problems relative to
violations of its rule 5 prohibiting the possession or the drinking of intoxicants
on the job or reporting to work under the influence of alcohol . In the 23 years of
its existence , Respondent has had occasion to discharge only some 12 employees
for violations of rule 5, according to the testimony of Respondent 's personnel
director, although the personnel records for 5 of the 12 men are not clear that
they were fired for violations of the liquor rule. Of the 12 discharges , 6 occurred
more than 10 years ago . There were no discharges for violation of the rule between
1960 and 1965 when Estes was discharged except one, and in that case it appears,
that the discharge was motivated not only by the employee's drunkenness but also
because of his physical assault on a supervisor . In a number of instances the
personnel records of these 12 men show that warning notices were issued to the
involved employees before terminations resulted as a result of subsequent con-
tinued violations of the rule. Five of the twelve men fired for violations of rule 5 were
subsequently rehired . In 2 of the 12 terminations , the personnel records indicate
that the discharge was primarily because of physical assaults by the intoxicated
employees on their foremen, rather than for drunkenness itself. Two of the twelve
dischargees were permitted to stay on their jobs for a period of time , although
under the influence of liquor , before they were eventually discharged.
From the above record of the 12 discharges in 23 years for violations of anti-
liquor rule, it is a fair inference that the Respondent, as an employer of hundreds
of employees, has had many more instances of violations of its rule 5 than indicated
by its personnel records and that these unrecorded instances were ignored or
handled only by oral warnings and admonishments.
Several of Respondent 's supervisors testified that under the Company's rule 5,
it was their policy to issue a warning to an employee reporting to work under
the influence of liquor that he would be discharged if the offense were repeated
and to promptly discharge such employee on the second offense. The evidence as a
whole, including the personnel records, show , either directly or by inference, that
an employee was usually given two or more warnings before he was discharged
for reporting to work under the influence of liquor. Thus, for example, the per-
sonnel record of Bobby Jones shows an entry under the date of May 7, 1963, which
reads: "Fired . Warned several times about drinking at night and reporting in
morning not able to do a good job . . . . Fired for absenteeism because of drinking."
The same supervisors also testified that it was their policy to immediately
terminate an employee without the benefit of any preliminary warning if he was
found to have possession of an intoxicant or found to be drinking on the job. This
testimony is not credited as the evidence shows that in actual practice this policy
was not followed. LeRoy Tucker is one of Respondent's foremen. Asked by
Respondent's counsel "What would you have done if you had caught a man on the
job in possession of liquor," Tucker replied "I would have fired him ." One of
Respondent 's employees , Harold Williams , worked under Tucker. Tucker 's testimony
shows that he reported to work on November 4, 1964 , under the influence of
alcohol and in possession of a half pint of liquor which he drank in the rest period.
CORNWELL COMPANY, INC . 817
During the lunch hour, Williams purchased and consumed part of another half
pint of alcohol when he was spotted by Tucker in an intoxicated condition. The
testimony of both Williams and Tucker shows that Tucker took from Williams'
pocket a bottle containing the then unconsumed portion of the half pint, but that
Williams was not fired for violation of Respondent's rule 5 but merely sent home.
Williams still works for Respondent. None of the other foremen who testified
herein that they would fire an employee for drinking on the job or for possession
of alcohol were ever actually confronted with such employee misconduct and
thus were never put to the test of their avowments, as was Foreman Tucker in the
incident related above. The foremen were never told at management meetings that
they must "fire" for possession of alcohol or drinking on the job; indeed, the
record shows that the subject of drinking never came up at such meetings. Rule
5 of the Company's rules makes a discharge for violation of alcohol rules permis-
sive,7 not mandatory.
Discussion and Conclusion
I find and conclude that Respondent terminated Junior Lee Estes because of
his union activities and because he had given testimony under the Act against
Respondent and that Estes' alleged violation of Respondent's rule with respect
to the possession of alcohol was a pretext for his discharge.
The evidence is clear by Respondent's own admissions that it had knowledge of
Estes' union activities at least as early as March 4, 1964, when it received a copy
of a letter addressed to the Board putting it on notice that Estes and other
employee signatories thereto were leading a campaign to organize the plant. More
than a year later, Estes' involvement in the unionization of its plant was again
brought home to Respondent through the receipt of a copy of a similar letter,
dated September 7, 1965, bearing Estes' name. Both of these letters preceded
representational elections scheduled before the Board, pursuant to petitions of the
Union. Finally, Estes' role in organizing the plant was once again brought to
Respondent's attention as late as October 25, 1965, just 4 days prior to his dis-
charge, when it found Estes testifying against Respondent in the prior consolidated
unfair labor practice proceeding before another Trial Examiner.
In addition there are other factors which in my opinion clearly point to the
pretextual nature of Estes' termination for alleged violation of the Company's
rule against employee possession of liquor on company premises. The record
shows that the Respondent over the years has been most tolerant in the handling
of aberrant employees who run afoul of the Company's antialcoholic rule. Ter-
minations for. violations of the rule have been meager; in the 5 years prior to
Estes' discharge, only one man was discharged for drunkenness on the job, com-
plicated by a physical assault on a supervisor. The record further supports the
conclusion that the few terminations that did take place over the 23-year history
of the Company because of violations of the liquor rule were preceded by warn-
ings or occasioned by physical assaults by the intoxicated employee on his
supervisor.
Estes' termination was, on the other hand, without any prior warning. Not only
was there no warning to Estes, but it also appears from the evidentiary findings
set forth above that his discharge was pursuant to -a carefully devised plot "to
lay for him" and to "catch him with the goods," so to speak .8 A number of per-
sons participated in the plot, including an unidentified employee informer, Estes'
departmental head, and the plant superintendent himself. Moreover, he was dis-
charged for the possession of alcohol which the evidence shows his colleagues,
Appleby and Vice, put in Estes' borrowed thermos bottle during the noon lunch
hour recess here involved. The amount of alcohol found in the bottle was less
than a tablespoon. The Company knew at the time it interviewed Estes with respect
to the contents of his thermos bottle that Appleby and Vice had had the bottle
during the noon recess and had brought it back to the plant with them when
they returned. The Company also knew from prior rumors that the names of
Appleby and Vice had been linked with that of Estes as the employees in the
finishing department who had been drinking on company premises. Notwith-
. 9 The Company's rules state that an employee "may" be discharged for failure to comply
therewith.
8 The above phrases in quotations are mine ; they are implied from the testimony in
the case.
264-188-67-vol. 161-53
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing this information , the Company promptly exonerated Appleby and Vice
from any responsibility for the alcoholic contents of the thermos bottle and
sent them back to work in the plant while at the same time, on the same evidence,
it held Estes solely responsible for whatever was in the bottle and suspended him,
pending a chemical analysis thereof. Respondent's president told Estes that he was
being suspended , not discharged , and that he would be restored to his job if the
analysis showed that the contents to be nonalcoholic . Despite this assurance, the
Company notified the Indiana Employment Division several days prior to the
receipt of the chemical analysis that it had "fired" Estes. The discharge was made
at a time when Respondent was experiencing an acute labor shortage not only
in all categories of skilled labor, including the skilled work Estes was doing, but
even of common labor.
The above circumstances compel the conclusion that Estes' discharge for the
alleged possession of alcohol contrary to company rules was pretextual and that
he was in fact terminated because of his leadership in efforts to organize Respond-
ent's plant.
The same circumstances also compel the conclusion that Estes ' discharge was
also motivated by the fact that he had given testimony under the Act against
the Respondent in the above -mentioned consolidated unfair labor practice case.
C. Issue as to whether Respondent engaged in surveillance of
enployees' meeting
The complaint was amended at the opening of the hearing to allege that the
Respondent by its president , Gene Cornwell , engaged in surveillance of a meeting
of its employees preparing for trial herein on the very eve of the hearing itself.
The charge is denied by Respondent.
In support of the allegation , General Counsel relies on the admitted fact that
Respondent 's president , Gene Cornwell , on the day before the trial herein had
parked his car at the close of the business day adjacent to the hotel in Paoli where
Government trial counsel was meeting with some of Respondent 's employees in
preparation for the trial in this matter , and that he had from his parked car
engaged some of his employees in conversations , including his former employee
Estes. There is no claim that Cornwell in these conversations made any inquiries
as to the subject matter of the hearing or that he otherwise made any statements
violative of the rights guaranteed to employees to self-organization under the Act.
The detailed facts with respect to the issue here under consideration are as
follows: Paoli, as noted above, is a small town of about 2 ,800 persons. Like many
small towns , it is built around a town square, more accurately described as a
circle, in the center of which is a courthouse. The circle is lined with various
retail and service shops. The circle also contains the town 's only hotel , the Mineral
Springs Hotel, an ancient edifice with an open front porch . In both this case and
in the prior consolidated unfair labor practice case , Government trial counsel, who
was the same in both matters, used the Mineral Springs Hotel as headquarters for
interviewing some of the Respondent 's witnesses in preparation for trial. On the
day before the hearing about 3 o'clock in the afternoon , Cornwell and Govern-
ment trial counsel met by chance on the town square where they momentarily
greeted each other , joshed about the prior and forthcoming trials, and parted.
Later that day about 5 p.m. Cornwell parked his car at one of the metered
parking spaces in front of the Mineral Springs Hotel, walked to the nearby
McIntosh Drugstore, and there picked up two newspapers expressly set aside foi
him on a daily basis. The record is undisputed that it is Cornwell 's daily practice
to stop for his newspapers at the mentioned drugstore at or about 5 in the after-
noon after parking his car at the closest available parking space . As an employer
of nearly one -fifth of the population of Paoli and environs , Cornwell is a well-
known figure in Paoli. The record further shows that he is an affable person who
makes it a point to generally greet all persons he encounters and that he is on
such easy terms with his employees that most refer to and address him by his first
name, as was done at the hearing by discriminatee Estes, a much younger man.
On his way back to his car , Cornwell greeted some retired older men sitting on
the open porch of the Mineral Springs Hotel . After he got to his car, Cornwell,
following his usual practice , glanced at the headlines of his newspapers but did not
attempt to otherwise read them . While sitting in his car, -a woman who works for
an optometrist just a few doors from the hotel came over and chatted with Corn-
well for a moment or two . When she had gone , Cornwell was approached by
CORNWELL COMPANY, INC. 819
employee Kibbler and a little later by coincidence, Kibbler's brother, who is not an
employee of the Cornwell Company, with whom he conversed briefly. Employee
Kibbler was not a witness in this proceeding and was not one of the Cornwell
employees interviewed by counsel on the day here in question.
The next person Cornwell spoke to from his parked car was discriminatee Estes
who came over when Cornwell beckoned to him. Cornwell in his brief conver-
sation with Estes asked him where he was working and at what hourly rate and
commented on how difficult it was to get help. The conversation between the two
men did not relate to the present proceeding.
Union Agent Charles McCormick observed Estes talking to Cornwell and when
Estes left, McCormick walked over and spoke to Cornwell for about 5 minutes
after which Cornwell drove away. McCormick has known Cornwell since 1963
and had talked to him innumerable times in the past 3 years during the course of
union campaigns to organize the Respondent. He would frequently run across
Cornwell in the town square, in a restaurant on the square, and in the mentioned
drugstore where Cornwell gets his newspapers. The subject of discussion was
social, not business. They both spoke of their fathers, who are along in years, and
Cornwell mentioned that he had to rush home to prepare to attend his father's
birthday that day.
Cornwell returned to the same drugstore in the square within the hour to
purchase a birthday gift for his father, as his wife had overlooked the pre-
arranged plan for her to pick up the standard gift box of cigars and a bottle of
spirits at the drugstore earlier that day. This time Cornwell parked his car in an
available parking space a few doors from the Mineral Springs Hotel and not
directly in front of the hotel as previously. He was accompanied by some children
whom he left in the car while he shopped. As he left the drugstore, Cornwell
observed and in turn was observed by Union Agent McCormick, Estes, and by a
Cornwell employee, John Green, who were near the hotel. Green testified at the
bearing in behalf of General Counsel in connection with the 8(a)(3) issue.
Discussion and Conclusion
I find and conclude that the General Counsel has failed to sustain its burden
of proof that Respondent, by its president, Gene Cornwell, engaged in an unlawful
surveillance of a meeting of its employees on May 16, 1966, held for the purpose
of preparing for the trial of the present proceeding.
The evidence clearly shows that Cornwell's presence on the town square of
Paoli in the immediate vicinity of the Mineral Springs Hotel at the time here in
question, when counsel for General Counsel was interviewing Cornwell employees
at the hotel, was in accordance with his regular and normal daily practice to pick up
newspapers set' aside for him at the adjacent McIntosh Drug Store. As Cornwell
is a man of intelligence, there can be but little doubt that he was aware of what
was going on at the hotel with reference to his Company or that he took careful
mental notice of all Cornwell employees he saw in the vicinity of the hotel. How-
ever, the paramount fact is that Cornwell, at the time here in question, was where
he.would normally be, and doing what he would normally be doing on every
business day of the year. Note must be taken of the fact that in a town as small
as Paoli, it is almost impossible for residents of the town and environs to avoid
seeing and recognizing each other when they are in the town's square for any
purpose:
Under the circumstances of this case, I find that such surveillance by Cornwell
as took place outside the Mineral Springs Hotel was incidental to Cornwell's
normal activities and accordingly not unlawful. Comwell's right to be where he
was at the time and place here involved is akin to and similar to the right of "free
speech" guaranteed under the Act. In my opinion Cornwell was not under a
legal obligation to abandon his usual and normal practice of stopping to pick up
newspapers at the McIntosh Drug Store, close to the hotel where his employees
were preparing for trial, in order to avoid such incidental noting of such Cornwell
employees as might take place. The record does not show that Cornwell's observ-
ance of Cornwell employees at the hotel had any deterrent effect on their giving;
testimony in this proceeding.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities set forth in section III, B and C, above , occurring in connection
with the operations of the Respondent set out in section 1, above, have a close,
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intimate , and substantial relation to trade, traffic , and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has committed certain unfair labor
practices , it will be recommended that it be ordered to cease and desist from such
conduct, and to take certain affirmative action designated to dissipate its effects.
Having discriminately discharged Junior Lee Estes , the Respondent will be
ordered to reinstate Estes to his former or substantially equivalent position of
employment , without prejudice to his seniority and other rights and privileges,
and to make him whole for any loss of earnings suffered as the result of Respond-
ent's unlawful action . Backpay will be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 , with interest added thereto in the manner
set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of the Act.
2. United Furniture Workers of America, AFL-CIO, is a labor organization
within the meaning of the Act.
3. By discriminatorily discharging Junior Lee Estes because of his union affilia-
tion and activities and for having testified at a Board hearing , the Respondent
violated Section 8(a)(3), (4 ), and (1 ) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not engaged in unlawful surveillance of an employees'
meeting held for the purpose of preparing for the present hearing in violation of
Section 8 (a)(1) of the Act, as alleged in paragraphs 5(a) and 7 of the complaint.
[Recommended Order omitted from publication.]
Bay Ran Maintenance Corporation of New York, Employer-
Petitioner and Buffalo & Western New York Hospital &
Nursing Home Organizing Committee , AFL-CIO. Case 3-RM-
345. November 7, 1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before Hearing
Officer William S. McGee. The Hearing Officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
The Employer-Petitioner, hereinafter referred to as the Employer,
filed a brief with the National Labor Relations Board.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Brown, Jenkins, and Zagoria].
The Board has considered the entire record in this case including
the brief, and makes the following findings :
1. The Employer seeks an election in a unit of its building service
and maintenance employees employed at the Sisters of Charity Hos-
161 NLRB No. 74.