Ferland Management Co.

National Labor Relations Board - Board Decisions

Nov 15, 1977

233 N.L.R.B. 467 (N.L.R.B. 1977)

FERLAND MANAGEMENT COMPANY
Ferland Management Company and Rhode Island
Workers Union, Ind. Cases I -CA- 11531, I -CA
11720, and 1-RC-14352
November 15, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On March 16, 1977, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, General Counsel and Re-
spondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge to the extent consistent herewith, to modify his
remedy so that interest is to be computed in the
manner set forth in Florida Steel Corporation, 231
NLRB 651 (1977),2 and to adopt his recommended
Order, as modified herein.
The Administrative Law Judge found, and we
agree for the reasons set forth by him, that Respon-
dent embarked on a course of unlawful conduct on
February 27, 1976, 3 that the Union achieved majori-
ty status in an appropriate unit of Respondent's
employees on February 28,4 and that, because of
Respondent's unlawful conduct during the critical
period, the election conducted in Case 1-RC-14352
should be set aside and the petition in that proceed-
ing dismissed.
The Administrative Law Judge further found that
Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to bargain with the Union as of
February 27, the date of Respondent's first known
unfair labor practice. Although we agree with the
Administrative Law Judge that Respondent violated
Section 8(a)(5) and (1) of the Act, we do not adopt
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
3 All dates hereinafter are 1976 unless otherwise indicated.
4 The General Counsel has excepted to the Administrative Law Judge's
finding that employee Albert LaFontaine signed an authorization card for
the Charging Party. herein called the Union, in reliance on a misrepresenta-
tion and that, therefore, the card should not be counted in determining
whether or not the Union represented a majority of Respondent's
233 NLRB No. 69
his rationale for so finding, nor do we agree that the
bargaining obligation attached as of February 27.
The record establishes, as the Administrative Law
Judge found, that the Union achieved majority status
on the basis of authorization cards on February 28,5
that Respondent's unlawful conduct, aimed at
discouraging employee support for the Union, had a
tendency to undermine such majority status and
precluded the holding of a fair election on April 16,
and that the Union lost that election. The Adminis-
trative Law Judge failed to mention, however, the
uncontradicted evidence that, by letter dated April
20, the Union requested that Respondent recognize
and bargain with it, and that, by letter dated April
29, Respondent refused to do so.
In these circumstances, we conclude, in agreement
with the Administrative Law Judge, that the continu-
ing impact of Respondent's coercive conduct is such
as to render a fair election unlikely and that,
therefore, the authorization cards signed by employ-
ees are a more reliable indication of their desire for
representation. Accordingly, we conclude that Re-
spondent violated Section 8(a)(5) and (1) of the Act
by refusing to bargain with the Union as of April 20,
the date the Union demanded recognition.6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Ferland Management Company, Pawtucket,
Rhode Island, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
Substitute the following for paragraph i(b):
"(b) Refusing to recognize and bargain with the
Rhode Island Workers Union, Ind., as the exclusive
representative of all the employees in the bargaining
unit described below:
"All full-time and regular part-time maintenance,
janitorial, and landscape employees of the Re-
spondent, employed at service locations at which
employees. We find it unnecessary to pass upon the validity of LaFontaine's
card inasmuch as we find that, even without counting LaFontaine's card,
the Union achieved majority status on February 28, 1976.
5 Respondent contends that the Union never achieved majority status.
contesting the validity of certain authorization cards. We find no ment to
this contention. As the Administrative Law Judge found, the Union's card
majority continued at least through April 14. Furthermore, Respondent's
payroll records, admitted into evidence at the hearing without objection,
indicated that the same employees were in the bargaining unit on April 21 as
on April 14. and there is no evidence that any employee who signed an
authorization card withdrew or revoked such authorization.
6 Trading Por,t. Inc., 219 NLRB 298, 301 (1975). We note that
Respondent's unfair labor practices occurring before April 20 are otherwise
remedied by our Order herein.
467
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent has custodial management contracts,
including Four Seasons North and Plaza Village,
Woonsocket; Four Seasons South, Warwick;
Four Seasons West, West Warwick; and George
Street Apartments, Pawtucket, Rhode Island,
excluding guards and supervisors as defined in
Section 2(1 1) of the Act."
1T IS FURTHER ORDERED that the election in Case 1-
RC-14352 be, and the same hereby is, set aside, and
that the petition in Case I-RC-14352 be dismissed.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This
consolidated proceeding was heard before me on October
5, 6, 26, and 27, 1976,1 at Providence, Rhode Island.
Charges were filed in Cases I-CA-11531 and I-CA-11720,
on March 15 and April 28, respectively, by Rhode Island
Workers Union, Inc., hereafter called the Union. Com-
plaints and an amended consolidated complaint issued
based on these charges. Ferland Management Company,
herein variously called Respondent, the Employer, and the
Company, filed timely answers denying any unfair labor
practices. The consolidated complaints alleges that Re-
spondent violated Sections 8(a)(l), (3), and (5) of the Act
by interrogating its employees about their union activities;
by soliciting grievances from employee Milton Teasdale in
order to discourage his union activity and promising him a
wage increase and other benefits on condition he cease
union activity; by issuing a written instruction to Milton
Teasdale, on March II 1, that he could not work Saturdays
or through the lunch period and by discharging him on
March 12, all because of his union activities; by unlawfully
refusing to bargain with the Union; and by engaging in a
course of conduct designed to destroy the Union's majority
status and make a fair election impossible.
In Case I-RC-14352, the Union filed a petition for
election on March 11. The parties executed a Stipulation
for Certification Upon Consent Election on April 2, which
the Regional Director approved on April 5. An election
was conducted on April 16 in a unit of maintenance,
janitorial, and landscape employees of Respondent. There
were 11 votes cast for the Union, 20 against, and I
challenged ballot. The Union filed objections to the
election on April 22, and, on July 6, the Regional Director
issued a Report on Objections directing a hearing on
Objections 2 and 4, which alleged matters covered by the
complaints, and consolidated Case I-RC-14352 for hear-
ing with Cases 1-CA-11531 and I-CA-11720.
Upon the entire record, including my observation of the
witnesses as they testified, and after due consideration of
the able posttrial briefs filed by the parties, I make the
following:
I All dates herein are in 1976 unless otherwise specified.
2 The facts set forth herein are based on a synthesis of the credited
aspects of the testimony of all witnesses, the exhibits, and careful
consideration of the logical consistency and inherent probability of the facts
found. Although I may not, in the course of this decision, advert to all of the
FINDINGS AND CONCLUSIONS
i. RESPONDENT'S BUSINESS
The complaint alleges, Respondent admits, and I find
that Respondent is a Rhode Island corporation with
principal office and place of business at Pawtucket, Rhode
Island, where it is engaged in construction of houses,
apartments, and commercial buildings and the manage-
ment of real estate property; and that Respondent annually
purchases and receives, at its Pawtucket and other Rhode
Island locations, goods and materials valued in excess of
$50,000, which are shipped directly from points outside the
State of Rhode Island. I further find that Respondent is
now and has been at all times material herein an Employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence2
I. The appropriate unit and its members
The consolidated complaint alleges and Respondent
admits that the appropriate collective-bargaining unit
involved in this case is composed of all full-time and
regular part-time maintenance, janitorial, and landscape
employees of Respondent, employed at service locations at
which Respondent has custodial management contracts,
including Four Seasons North and Plaza Village, Woon-
socket, Rhode Island; Four Seasons South, Warwick,
Rhode Island; Four Seasons West, West Warwick, Rhode
Island; and George Street Apartments, Pawtucket, Rhode
Island, excluding guards and supervisors as defined in
Section 2(11) of the Act.
The parties stipulated that the following named employ-
ees were employed in the above-described unit throughout
the period from and including the workweek ending
February 11 through the workweek ending April 14:
Allan Morrison
Roland Morin
Norman Boyd
Fred Browne
Laurent Guilbault
George Murdock
James Kelly
Edward Godfrey
Kenneth Bouvier
Albert La Fontaine
R. J. Fernandes
Patrick Demers
Robert Maurice
Walter Maurice
Raymond Dohring
Raymond Teasdale
Robert Resendes
Harvey Williams
Michael Lanctot
Eric Francis
Edward Tyerell
T. W. Gramstorff
Robert Goulet
Stephen J. Covill
record testimony or documentary evidence, it has been carefully weighed
and considered and to the extent that testimony or other evidence not
mentioned herein might appear to contradict the findings of fact, that
evidence has not been disregarded but has been rejected as incredible.
lacking in probative worth, surplusage. or irrelevant.
468
FERLAND MANAGEMENT COMPANY
The parties further agreed that (1) Kim Davis and
Stephen Casey were employees in the unit, for the period
from and including the week ending February 11, until
both were terminated on March 26; (2) Paul Dansereau
was an employee in the unit beginning with the week
ending February II until March 10 when he ceased to be
an employee; (3) the status of Ronald Bessette, who
worked throughout the period first set forth above, as an
employee in the unit or as a supervisor excluded therefrom
will be dependent on the ultimate decision in this case as to
his supervisory status; (4) although a unit employee until
his discharge on March 12, the inclusion or exclusion of
Milton Teasdale in the unit thereafter will depend on the
disposition of the complaint allegation that he was
unlawfully discharged; (5) that Respondent takes the
position Michael Merola was discharged on March 12, and
John Russell no longer worked after January 21, whereas
the General Counsel contends Merola and Russell contin-
ued as unit employees until later dates; that Kevin Meehan
was a unit employee during the weeks ending February I 1,
18, and 25; and that Dominic Giorgianni was employed
from the week ending March 10 through the week ending
April 14.
The parties further agree that no individuals other than
those named above were members of the unit during the
period beginning with and including the week ending
February 11 through the workweek ending April 14.
With regard to John Russell, the evidence is contrary to
Respondent's position that he should not be considered as
a unit employee after January 21, solely because that was
the last day he actually worked. Richard Ferland, director
of property management for Respondent, a statutory
supervisor with total control over the day-to-day opera-
tions of the property management department with which
this case is concerned, testified that Russell last worked on
January 21, at which time he advised the Company he was
going to see a doctor; that Russell later advised the
Company's supervisor, Spear, that he was still out sick;
that Russell's weekly timecards continued to carry the
notation that he was out sick all week through the pay
period ending March 17; and that Russell was not
separated from the Company payroll until March 25, when
the Company received an unemployment inquiry from
California regarding Russell and Ferland sent a memo to
personnel to classify him as a voluntary quit. Russell's
name appears on the stipulated compilation of Respon-
dent's payroll for each and every payroll beginning with
the week ending April 14. Furthermore, Respondent
included Russell's names on a list of employees submitted
to the Regional Director of Region I on March 29 in
connection with Case l-RC-14352, and a list of discharges
and quits received into evidence by stipulation as authentic
and accurate shows Russell quit on March 26. In all the
circumstances, the preponderance of the evidence clearly
establishes that John Russell was a unit employee on sick
leave until terminated as a voluntary quit. The date of his
actual termination is given by Ferland as March 25, and by
stipulation as March 26, yet his name appears on a list of
employees submitted 'by Respondent to the Regional
Director on March 29, and in every week through April 14
of a stipulated compilation of the payroll. Though the
matter is clearly not one easily susceptible to exact
determination, I am persuaded from the logical probabili-
ties of the situation that he was actually terminated on
March 25 or 26, during the workweek ending March 31,
when the March 29 list was prepared; 3 that the compila-
tion of employees on the payroll is in error in continuing
his name during the April 7 and 14 payrolls; and that the
stipulation of the parties to the written list of quit and
discharged employees, received into evidence which lists
Russell as quit on March 26, takes precedence over
Ferland's testimony that Russell was terminated March 25.
I therefore conclude Russell was an employee on sick leave
until he was terminated on March 26 and remained a
member of the appropriate unit through that date.
The case of Michael Merola is similar to that of Russell
with respect to confusion of dates. Ferland testified that he
fired Merola in the first quarter of 1976. Merola's
personnel envelope bears the notation that he quit on
March 12, as does the Employer's compilation of quits and
discharges. However, the stipulated compilation of Re-
spondent's payroll shows Merola on the payroll during the
week ending March 31, and a memo to personnel on
Merola initiated by Ferland and dated March 26 states: "I
talked to Mike yesterday 3/25/76, told him he must show
up for work Friday 3/26 or I would consider him a
voluntary quit. I gave Chief Spear a note that Mike would
be in, which is what Mike told me. Mike did not show up.
Process him as a voluntary quit." From the foregoing,
particularly the intraoffice memo of March 26, I conclude
that Merola was a unit employee until March 26, when he
was removed from the payroll. There is no evidence to
support Ferland's bare assertion that he fired Merola and,
although it is of no real consequence in the disposition of
the issue of dates of employment or other issues in this case
other than the reflection it casts on Ferland's credibility, I
find Merola quit, and that Ferland himself considered him
as quit, effective March 26.
Turning to Ronald Bessette, Respondent vigorously
contends he is a supervisor and the General Counsel just as
vigorously contends he is not. I agree with the General
Counsel for the reasons set forth below.
It is clear that Respondent never contended Bessette was
a supervisor or even considered that he was until the
question of his status was raised by my question to Bessette
as to the difference between an "overall crew boss," which
he claimed to be, and a "crew chief." That simple question
opened a veritable Pandora's box of testimony, documents,
and arguments regarding whether or not he is a supervisor.
Richard Ferland, in testimony given prior to Bessette's
appearance as a witness, as General Counsel points out,
stated that Ferland had total oversight of the day-to-day
operation of the property management department and
supervised a staff of site managers and central office
managers. He further averred that site managers supervised
maintenance employees working at their sites and that
Maintenance Supervisor Spear supervised some 15 mainte-
nance employees, who worked at locations not under a
3 There is no evidence when the March 29 list was prepared.
469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specific site manager, was responsible for the scheduling of
the day-to-day work functions of these employees and told
them where to work and what to do, and was responsible to
Ferland for their performance. Ferland's testimony here
implies that Spear is the direct supervisor of the mainte-
nance employees, which includes the lawn crews. Ferland
made no mention of Bessette, who works at this latter
function. I note, however, that, after I questioned Bessette
regarding his claimed job title, Ferland, on recall as
Respondent's witness, and Spear testified extensively about
Bessette's duties in an obvious effort to show he was indeed
a supervisor. As further discussed below these efforts were
not fruitful. Both the list of unit employees submitted by
Respondent to the Regional Director on March 29, and the
stipulated list of eligible unit employees signed by Ferland
for Respondent and by the Union on April 2, contained the
name of Ronald Bessette. Although the March 29 list and
the subsequent Norris-Thermador4 list are not dispositive of
Bessette's alleged supervisory status, they do show that
Ferland and Respondent, of which he is a manager and
agent, considered Bessette to be a unit employee at that
time. I observed Ferland to be a calculating and clever
witness not given to naivete, and I do not believe his
testimony on recall that he placed Bessette's name on the
eligibility list because he thought all nonsalaried supervi-
sors should be on the list and anyone who did not get paid
overtime should be left off, and since Bessette was hourly
paid and received overtime he was included on the list.
Apart from my observation that Ferland's demeanor
betrayed his answer, the same day, April 2, that Ferland
signed the Norris-Thermador list, Respondent s signed the
election stipulation which flatly excluded statutory supervi-
sors from the unit without any reference whatsoever to
salary, overtime, or other factors. Ferland's purported
understanding of eligibility, which I have discredited, is
made even more unbelievable by the circumstance of
concurrent signing of the Norris-Thermador list and the
election agreement setting forth the appropriate unit.
It was quite obvious to me further on the admission by
Respondent that the possibility of Bessette being a
supervisor had never even occurred to them prior to my
question to Bessette about his job title, and that Respon-
dent's inquiry thereafter at the hearing was an opportunis-
tic investigation as opposed to advocacy of any position
that Bessette was a supervisor. I say this not in a
derogatory sense, inasmuch as I raised the statutory
question which the parties were then free to pursue, but as
evidence that even at the hearing Respondent was hesitant,
to say the least, to openly allege Bessette to be a supervisor,
thus revealing doubt even by Respondent that Bessette was
a supervisor. Respondent did not, in fact, do so until the
third day of the hearing, although I raised the question on
the first day, and General Counsel requested Respondent
to clarify his position on Bessette's status on the second
day.
4 Norris Thermador Corporation, 119 NLRB 1301 (1958).
5 The record does not show the identity of the signer of the consent
election stipulation.
6 Ferland's testimony that he relied on Bessette's concurrence with the
hiring of Lanctot and Francis to determine if they were satisfactory is
Having noted the Respondent's prehearing position with
regard to Bessette's status, together with Ferland's purport-
ed explanation of it, and the manner in which the question
of his status arose and was pursued at the hearing, I have
also considered the testimony and documents introduced
at the hearing with recognition of the long-established
precedent succinctly enunicated by the Board in United
States Gypsum Company, 118 NLRB 20, 25 (1957), as
follows:
The question whether particular individuals in a
given case are supervisors within the meaning of
Section 2(11) of the Act must be resolved upon
examination of all the evidence in the case. Conclusory
statements that the individuals can 'effectively recom-
mend' changes in the status of employees and that they
'exercise independent judgment' . . . do not establish
supervisory authority. Such expressions are words of
art reflecting legal conclusions, but they are not
evidence which assists in the resolution of disputed
supervisory authority. [Footnote ommited.]
Accordingly, I will not hereafter allude to the numerous
conclusionary assertions in the record, but will only discuss
the credible evidence, its implications, and the reasonable
inferences to be drawn therefrom.
On November 11, 1975, Ferland submitted a mainte-
nance reorganization plan to higher management which
was approved. The plan lists, among its manpower needs to
fill each job category, "Grounds Crews-7 fulltime work-
ers-in season 3 crews are utilized," and "Maintenance
Supervisor--I person would handle all supervision, pur-
chasing, scheduling, inspections, trouble shooting, and
related function. Could possibly assist in leasing as time
would permit." The plan further states a need for new help
to fill out the complement set forth in the plan and
enumerates the number of new employees needed in each
job category of the plan. Relevant to the instant case is the
stated need to hire "Grounds-3 employees (2 of which
should be crew chiefs)" and "Maintenance Supervisor--I
employee." Milton Spear was hired on or about December
18, 1975, to fill the maintenance supervisor slot and
continues in that capacity as a salaried employee. Ronald
Bessette was hired on or about December II11, 1975, to fill a
crew chief vacancy at an hourly rate of $3.75. Both
responded to help wanted ads in the Providence Journal-
Bulletin of November 22, 1975. Bessette responded to the
ad stating "Landscaper: knowledgeable crew chief being
sought. Year around work good pay and benefits for good
workers." The ad to which Spear replied specifically states
"Maintenance Supervisor." I deem it significant that the
"Landscaper" ad emphasizes a need for landscaping
knowledge as opposed to supervisory ability. Michael
Lanctot and Eric Francis, who have been stipulated as unit
members, were hired as crew chiefs on the same day as
Bessette was.6 Since that date, Lanctot, Francis, and
transparent fiction. Ferland did not even know if Bessette was going to be
satisfactory, and I regard this claim of "reliance" to be a deliberate
manufacture designed to support Respondent's fortuitous opportunity to
construct a defense to certain aspects of the complaint by portraying
470
FERLAND MANAGEMENT COMPANY
Bessette have been the crew chiefs on the three ground
crews, and each crew has been composed of one employee
other than the chief from that time at least through April 1,
and the chief also functions as the "crew" truckdriver.
Thus, from the preponderance of the credible evidence,
what we really have here are three crews of two men each
(one of whom is denominated chief of that crew), which
comports with the complement set forth in the reorganiza-
tion plan, with the single exception that the plan suggests
seven full-time workers including crew chiefs.
After these new men were hired, Respondent sent a letter
to the residents of its apartment buildings in January 1976,
advising them that the Company had added workers in the
painting, lawn crews, and janitorial crews to better service
the residents' needs and that any service problems should
be brought directly to the attention of the "Maintenance
Supervisor." There is no provision in this communication
for resident complaint to or contact with crew chiefs.
Bessette testified variously that he is the overall crew
boss for grounds maintenance and this job involves
"making sure the crew bosses are doing their job, and they
all know what places they are to go"; that Ferland told him
on hire that he "was to be hired to take care of group of
men in different crews. In other words, there would be
three trucks on the road and I was to be one of the crew
bosses, overall crew bosses of everything"; that Ferland
told him his job would be "to take over all the crews and to
maintain the lawns and shrubbery of the complexes"; and
that Ferland told him his job was "to take care of the men,
make sure they were on the right jobs, and to do the work
myself also." I find no material internal inconsistencies in
this testimony, and I observed Bessette to be a forthright,
credible witness not given to contrived or evasive testimo-
ny.7
Looking past what Bessette was told on hire, to what his
duties actually turned out to be, I find that by virtue of his
educational background and experience in landscaping he
was responsible for checking the hedges, lawns, plants,
shrubs, and trees to see that they were properly cared for.
He is, in sum, a groundskeeper with superior knowledge
and training in the area of landscaping whose duty, in
addition to doing work himself, is to see that the
landscaping is done right from a landscaper's viewpoint.
He then tells Spear what is needed in the way of grounds
materials, and Spear then does the actual purchasing of the
materials.
Bessette cannot hire or fire, nor can he effectively
recommend such action. This is illustrated by Spear and
Ferland's rejection of his recommendation that Davis be
discharged for continually sleeping in the truck. He has no
authority to discipline, approve overtime, or permit
employees to leave work early. A striking reflection of the
employees' understanding of Bessette's authority is the
refusal of Davis, while working with Bessette, to quit
sleeping and get out of the truck and Davis' refusal to do
different jobs. Obviously, Davis did not believe Bessette
could do anything about it, and the Respondent's refusal to
Bessette as a supervisor. I also credit Bessette's testimony that Ferland told
him Lanctot and Francis were already hired at the time Bessette himself was
being interviewed.
7 In this regard, Bessette was a far more credible witness then Ferland,
whom I do not credit when his testimony conflicts with that of Bessette as to
what one said to the other about Bessette's duties.
fire Davis when Bessette reported these matters to Spear
confirms Davis' belief and a lack of authority in Bessette.
The schedule of the three crews was set up by Ferland
and Spear. This schedule was to be followed unless Spear
had a special assignment for them. Ferland and Spear split
up the apartment complexes into three routes for the three
crews. Each crew chief had his route to follow and the
crews could go through their route in a routine fashion over
and over without any special instructions. Bessette works
regularly on one of the routes and, although Spear, who
testified credibly that the foregoing procedure was the one
followed, claims that Bessette is supposed to both work
with a crew and spot check the other crews, I conclude that
this means Bessette is supposed to examine the plantings
from a standpoint of expertise and advise the men
accordingly. In any event, I am convinced from a careful
consideration of all the testimony on the matter that
Bessette never did leave his "crew," which only consisted
of one other employee, to visit the other jobsites. Further,
Spears goes from job to job during the day supervising the
men and seeing how the work is proceeding, and the whole
purpose of the three routes according to Spear was to avoid
moving employees around in a haphazard fashion "from
one side of Pawtucket up to East Providence in the same
day."
Respondent concedes that Bessette was not included in
preelection meetings held with its supervisors for the
purposes of instructing them on proper behavior during the
union organizational effort. Additionally, Ferland testified
that when the older employees complained to him that they
should get pay raises because the new employees were
getting more pay, he explained to them the difference in
compensation was occasioned by the technical training of
the new men.
In my opinion, further laborious statement of the
evidence relating to Bessette's status would only compound
the already redundant recitation above. Respondent has
totally failed to show that any of the elements recited in
Section 2(11) of the Act are applicable to Bessette. The
only discretion he has that remotely resembles statutory
authority is the right to determine when the one-half hour
lunch will be taken by his crew, which right is itself
dependent on the work in process as specifically provided
in the Company's rules and the election to dispense with
coffeebreaks when required by the workload. This is
minuscle authority in itself and is given to all crew chiefs,
including those stipulated in the bargaining unit, not just
Bessette.
I therefore find and conclude in consideration of all the
foregoing that Bessette is a skilled landscaper whose role as
"overall crew chief's means only that he checks the
plantings from a standpoint of expertise, reports to Spear,
and acts as a conduit for Spear's instructions to other
employees. Spear is the only statutory supervisor over the
lawn crews; the only control Bessette exercises over other
employees is that derived from his superior experience in
R Richard Ferland was much given to inflation of his testimony, and I
discount his description of Bessette as "chief of the grounds maintenance
crews" as an example of that inflation.
471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
landscaping and does not make him a statutory supervi-
sor;9 and Bessette is a rank-and-file employee properly
included in the agreed-upon bargaining unit at all times
material to this case.
2. Union activity and authorization cards
In late January, after some of the other employees had
expressed an interest in securing union representation,
Milton Teasdale telephoned Union Representative George
Nee and asked him if the Union could help improve the
wages, working conditions, and other benefits of Respon-
dent's employees. Nee replied that it could and a meeting
was arranged for February 2 at the Broadway Athletic
Association. Teasdale notified other employees, and he, his
brother, Raymond Teasdale, Harvey Williams, Stephen
Casey, and Ronald Bessette met with Nee and Hamelin, a
fellow union agent, at that time and place. Nee and
Hamelin explained the process of union organization, what
a union could do for the employees, and what matters
could be covered by a collective-bargaining agreement.
The Union and the employees then discussed the men's
complaints about their jobs.
After the February 2 meeting, Milton Teasdale called the
Union, l° arranged a meeting at his house for February 7,
and asked that Nee and Hamelin bring along some union
cards. Nee and Hamelin met with Milton and Raymond
Teasdale, and Ronald Bessette on February 7 at Milton
Teasdale's home, and explained that the Union wanted to
make sure the employees wanted a union, and the way to
show it was to sign an authorization card. It was further
explained by the Union that in order to file for an election
the Union had to have 30 percent of the employees signed
9 Bugle Coat, Apron & Linen Service, Inc., el al., 132 NLRB 1098, 1100
(1961).
'o The date of the call is not in the record.
I At p. 23, 1. 14, of the official record General Counsel mistakenly cited
February I I as the date of the meeting at Teasdale's house.
12 Respondent concedes the validity of the cards signed by Raymond
Teasdale and Milton Teasdale on February 7 as designations of the Union
to represent them, but challenges Bissette's on the ground he is a supervisor.
I have found Bissette to be a nonsupervisory unit employee and therefore
find his card signed on February 7 to be a valid designation of the Union as
his collective-bargaining representative. Respondent also concedes the
validity of the authorization cards signed by Edward Godfrey on February
8, George Murdock on February 26, Robert Resendes on February 27, Paul
Dansereau on March 2, and Kenneth Bouvier on February 28.
The cards read as follows:
AUTHORIZATION CARD FOR BETTER wORKING CONDITIONS
AND JOB SECURITY
Under the laws of the United States Government employees have a
legal right to organize and bargain with their employer on wages and
other conditions of employment.
Name--
Address -
City
Employer
Wage --
Phone Zip
- Job Title
- Soc. Security No.
I designate and authorize the Rhode Island Workers Union to act as
my collective bargaining representative with my employer
Date Signature (written)
All Names Kept Confidential
up, but that the Union would not seek an election from the
Board unless 60 to 70 percent of the employees signed
cards, which would be used to show the Board an election
was warranted, and that the cards were also an indication
that the employees wanted the Union to represent them.i
Raymond Teasdale, Bessette, and Milton Teasdale signed
cards and returned them to the Union on February 7.12
Nee and Hamelin gave Milton Teasdale a supply of the
cards on which to secure the signatures of other employees
interested in union representation. Throughout the organi-
zational campaign Milton Teasdale was the employee who
arranged and coordinated the meetings between the Union
and the employees and notified the employees of the dates
and places of the meetings.
Nee and Hamelin met with Respondent's employees
again on February II and February 28. Milton Teasdale
was present at all meetings with the Union. Finally, on
March I I, the Union filed the petition for election with the
Board which led to the April 16 election.
During this entire period Milton Teasdale was actively
soliciting signatures on cards. He secured a signed card
from Edward Godfrey on February 8, George Murdock on
February 26, Robert Resendes on February 27, Stephen
Covill on February 27,13 John Russell on February 21,f4
Robert Maurice on March 16, and Theodore Granstorff on
March 16.
Harvey Williams signed a card on February 1 , Michael
Lanctot on February 10, Eric Francis on February II,
Robert Fernandes on February II, Stephen Casey on
February 11, Kim Davis on February 13, and Fred Browne
on February 28.' 5
The card of Michael Merola, bearing a date of March 2,
was received in evidence after testimony by a handwriting
13 The Employer disputes the cards signed by Covill, Maurice, Gran-
storff. Lanctot, Francis, Fernandes, Casey, Williams, and Davis on the
ground the record does not show that those who signed the cards are the
same individuals who are employees of the Company. This is an exercise in
frivolity, for the record evidence clearly establishes that the cards were
distributed to and signed by employees of Respondent. not some passersby,
and that the names on the cards are also on the unit list which the parties
stipulated into evidence. Further, not one iota of evidence nor any
allegation was advanced at anytime prior to the argument in Respondent's
posttrial brief, nor does the brief itself argue, that the above card signers are
not employees or that the signatures are forgeries. I also reject the
contention that the cards signed by Lanctot, Francis, Casey, Williams, and
Davis are invalid for the reason they were solicited by supervisor Bessette.
Inasmuch as I have found Bessette is not a supervisor, participation by him
in the solicitation of authorization cards cannot work to invalidate them. I
note further that Respondent's second argument that the cards of Lanctot.
Francis. Casey, Williams, and Davis are invalid because solicited by
Bessette presumes they are employees susceptible to his influence, and thus
militates against Respondent's first argument that the persons who actually
signed the cards bearing their names have not been shown to be employees.
14 Respondent challenges the validity of Russell's card on the ground he
was no longer an employee on February 21. This challenge is without merit
in view of my finding of Russell's continued employment status to March
26.
15 Respondent disputes the validity of Browne's card, contending that
Browne was told by Teasdale or Nee that everyone else had signed but him
and this was a misrepresentation which induced him to sign the card.
Respondent relies on S. E. Nichols Company, et al., 156 NLRB 1201 (1966).
and Engineers & Fabricators, Inc., 156 NLRB 919 (1966), to support his
thesis. Engineers & Fabricators Inc., does not support the argument at all if
Respondent, as I presume he is from a reading of the case, relies on the
discussion, p. 941 therein, of the card of Stzelecke which was counted even
though he was falsely told by the solicitor that a majority of employees had
signed cards because there was no evidence this false claim was a material
factor in his decision to sign. Nichols holds, see p. 1211, that employee
472
FERLAND MANAGEMENT COMPANY
expert that the signature on the card and that on the Form
W-4, Employee's Withholding Allowance Certificate, from
Respondent's records were, in the expert's opinion, signed
by the same person. Respondent does not dispute the
signature, but disputes the date which is unsupported by
any testimony as the date on which Merola signed. The
point is well taken. However, the card bears the timeclock
imprint of Region 1, National Labor Relations Board,
showing it was received at 11:13 a.m. on March 12.
General Counsel argues that no evidence was presented by
Respondent it was not signed on March 2. It is not
Respondent's burden to prove the date on the card. On the
basis of the evidence before me, I can only conclude that it
was signed on or before March 12, more likely on or before
March 11 (the date of the petition which it apparently
accompanied in view of the fact that 16 other cards were
marked received by the Board on March 12), I can only
from the evidence before me assign it a date of March 10,
because Nee's testimony that he forgot to take the cards
with him on the morning of March II when he filed the
petition, implies that he had the signed cards in his
possession before the morning of March I 1.
Although the authorization cards purportedly signed by
Dominic Giorgianni and Albert La Fontaine were not
produced at the hearing, the General Counsel, in sub-
stance, contends that the testimony of Giorgianni and La
Fontaine relating to the signing of the cards is sufficient to
show that they designated the Union as their representa-
tive, citing Aero Corporation, 149 NLRB 1283, 1291 (1964),
and Howard-Cooper Corporation, 117 NLRB 287, 288
(1957), in support of this contention. Respondent counters
this argument on the grounds that (1) no cards were
produced for Giorgianni and La Fontaine; (2) La Fontaine
did not specifically testify that he was an employee of the
Employer; (3) La Fontaine signed, if he signed, his card in
the presence of supervisor Bessette; and (4) La Fontaine
signed in reliance on the misrepresentation that he was told
he was the only one who had not signed a card. I reject
Respondent's contentions (2) and (3) for reasons set forth
in footnote 13 above.
Giorgianni credibly testified that he signed a card like
the authorization cards in evidence at the request of Milton
Teasdale on approximately March 3, which was his first
day of employment, and returned it to Teasdale. It was
stipulated by the parties that the payroll compilation
showing Giorgianni first worked during the week ending
March 10 is accurate, and the basic payroll register, which
I have examined, shows he worked 40 hours that week.
March 10, 1976, fell on Wednesday, therefore, excluding
Saturday and Sunday, I conclude Giorgianni's first day at
work was Thursday, March 4, and that he did sign an
authorization card on March 4. Inasmuch as Giorgianni's
uncontroverted testimony is that he signed the authoriza-
Bonham signed a card in reliance on the misrepresentation that 75 percent of
the girls had signed. In the instant case. Browne credibly testified that he
was given the card by Milton Teasdale or union agent Hamelin, probably
Teasdale, who said "you're the only one who hasn't signed." However,
Browne refused to sign, stating "I don't sign anything without reading it."
He then read it. filled it out, and signed it "of my own free will." Clearly,
Browne did not sign the card because of the misrepresentation. In fact, he
refused to do so and only did sign after he carefulls examined the card and
exercised his independent judgment in deciding to sign Unlike Nihols, and
tion card, which was like that of Bouvier which is in
evidence and reads as set forth in footnote 12 above, and
was told at the time by Teasdale that the purpose of signing
was to get the Union in, I conclude that Giorgianni
designated the Union as his bargaining representative on
March 4.16
La Fontaine also testified that he signed an authorization
card like that of B uvier after Milton Teasdale was fired on
March 12 and before the election on April 16. He was
home recuperating from an operation at the time and
Bessette brought him the card. He further testified that he
was told at the time that he was the only employee who had
not signed and that is why he signed it, but further states he
read the card before he signed it. Bessette avers that he
gave the card to La Fontaine and saw him sign it a few
days after Teasdale was fired. Bessette claims he read the
card to La Fontaine before he signed it. The card was not
produced at the hearing. Apart from the impossibility of
fixing a date of La Fontaine's signing with any precision on
the basis of the testimony adduced, I conclude that La
Fontaine's uncontroverted testimony, which I credit, that
he signed the card in reliance on the statement that he was
the only employee who had not signed, which is a
misrepresentation inasmuch as not all employees ever
signed cards (as evidenced by Roland Morin's credible
testimony that he did not sign one and the maximum
number of card signers claimed at hearing was 22,
including La Fontaine, out of a unit of 33 employees),
works to invalidate his designation of the Union as one
secured by misrepresentation and does not represent his
unfettered choice in the matter.
3. The alleged independent 8(a)(1) violations17
and the written warning to and discharge of
Milton Teasdale
Milton Teasdale met with Ferland in Ferland's office on
or about February 27. According to Teasdale, Ferland said
he understood Teasdale was not happy with the Company,
and when Teasdale said he was not because new employees
were getting paid more than old, asked how much more an
hour Teasdale wanted. Teasdale asked how much Ferland
thought he was worth and Ferland said he could not pay
that much and asked how much larger a truck allowance
Teasdale wanted and whether he would like to be salaried.
Receiving no answer to either question, Ferland asked if
Teasdale would like a maintenance job. Teasdale said it
sounded good and Ferland said he would see what he
could do about it. Then Ferland remarked that he
understood there was a union movement going on.
Teasdale agreed there was and volunteered that he had
signed a union card. Ferland then asked how he could nip
the Union in the bud. Teasdale said it could be done by
paying the men more wages and holiday pay. Ferland
like Engineers & Fabricators, the misrepresentation was not a material factor
in his signing the card and it will be counted as a valid, uncoerced
designation of the Union as his representative.
16 lloward-Cooper Corporation, 117 NLRB 287, 288, 295 ( 1957): Serv-U-
Stores, Inc., 225 NLRB 37, 40 (1976).
'7 At the hearing. General Counsel withdrew the allegation that Robert
Eithier interrogated an employee, and no evidence was proffered or
adduced in support thereof.
473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked how long he had to work on it and, receiving the
answer that he had from a week to a week and a half,
stated there was no way he could do it in that time because
he could not get Respondent's board together.
Ferland's version of the February 27 meeting is that
Teasdale came in and said he wanted to talk about
compensation. Ferland asked him what he was looking for,
what would it take to make him happy, would he like to
change jobs, get into maintenance perhaps. After some
discussion about a potential maintenance job, Teasdale
said he would rather stay in painting. According to
Ferland, he asked, "[G]ee, Milton, exactly what is it you
want," and Teasdale said, "I'm going to level with you,
some of the guys have got together and I signed a card for
the Rhode Island Workers Union." Ferland's asserted
response was, "[W]ell, fine, Milton, what is it you are
looking for? You are here for a reason. You said you
wanted to talk about compensation. What is it you want?"
Teasdale replied he wanted accrued vacation benefits
taking into account the years he had worked for the
Company as a subcontractor as well as his years of direct
employment. Ferland said "[W]ell, gee, Milton, that
doesn't sound quite right to me," and Teasdale reminded
him not to forget that employees were organizing, he had
signed a card, and he thought he could nip the whole thing
in the bud for Ferland. Teasdale explained that if he got his
accrued vacation benefits and maybe some paid holidays
within 10 days or so he might be able to nip the whole thing
in the bud. Ferland's response to this was that he did not
know that he would do anything in those areas, did not
think Teasdale could get accrued vacation benefits, but
would think about it and see Teasdale later.
The two versions are in substantial agreement that the
meeting first concerned the question of additional compen-
sation and/or a different job for Milton Teasdale. The
material divergence in testimony commenced when each
discusses how the question of the Union came up and
continues through the rest of the conversation.
In another context, Ferland concedes that he resisted the
Union and meant to do so successfully. This is not, of
course, illegal in and of itself for there are many ways an
employer may lawfully resist and actively campaign
against union organization of its employees. Ferland's
concession does however establish his hostility toward and
desire to avoid unionization, and employee awareness of
that hostility is evidenced by the laughter raised among
them by Nee's statement, at the union meeting of February
28, that voluntary recognition by Ferland on the basis of a
card check would be possible. I am convinced that Milton
Teasdale was aware of Respondent's attitude in this regard
when he met with Ferland on February 27. This cuts both
ways. With this knowledge, it can be argued that Teasdale
sought to capitalize on the Employer's attitude to ingratiate
himself with Ferland and secure benefits for himself. On
the other hand, it can be equally argued that knowledge of
Ferland's attitude would deter Teasdale from the overt
advances that Ferland testifies he made, for fear of
retaliation.
i' Milton Teasdale says he was alone. Kearns says Raymond Teasdale
was also present. I credit Milton Teasdale, although I do not consider this a
critical point.
On the whole, I am persuaded that the latter is true. As I
have earlier indicated, I found Ferland to be a calculating,
clever, and opportunistic witness who conveyed an impres-
sion of conscious effort to shore up Respondent's defenses.
Milton Teasdale impressed me as a much more open and
candid witness than Ferland, not given to subtle shadings
and fencing with counsel, as was Ferland, Teasdale
appeared to be making a conscientious effort to recount
events as he recalled them, even to the extent of fully
admitting faulty recollection of dates. I found Milton
Teasdale a far more direct and credible witness than
Ferland, and I do not believe that he attempted to strike a
deal with Respondent to destroy the organizational
campaign in which he was the leading employee activist.
Accordingly, I conclude that Ferland seized on the
opportunity presented by Teasdale's complaint about the
wages being paid new employees to dangle before him the
carrot of increased personal job benefits, interrogate him
about the union campaign, and seek to enlist his help in
defeating the Union, all individually and collectively in
violation of Section 8(aXI) of the Act. Then, when he
found that Teasdale's suggestion was to increase wages and
holiday pay for all employees, lamely abandoned the topic
by noting that the time estimated by Teasdale to be left to
Respondent to so act was too short to admit accomplish-
ment. In short, Ferland attempted to inveigle Teasdale, not
the contrary, and I credit Teasdale's version of the
conversation.
Ferland told John Kearns, director of the federally
insured rental program for Respondent at the time, on
March 1, that the Rhode Island Workers Association was
organizing the Company's employees. The following day,
according to Milton Teasdale, he i entered Kearn's office
and asked to talk to him privately. Teasdale asked Kearns
if he had heard about the union movement. Kearns
acknowledged that he had and cautioned Teasdale that he
was in with the wrong crowd and that the Union was
composed of radicals and named Father Shelton (appar-
ently an ex-priest active in efforts on behalf of low income
groups) and Gary Hamelin as radicals. Kearns agrees that
he did caution Teasdale that he knew of the Rhode Island
Workers Association and to be careful, "might have
mentioned" Father Shelton as part of the Union, and told
Teasdale that he, Kearns, was on management's side in the
matter. I credit Teasdale's version as substantially corrobo-
rated by Kearns, and conclude that Teasdale was the more
candid and complete in his description of the meeting.
There is no allegation in the complaint, nor does General
Counsel contend, that Kearns' conduct constitutes an
unfair labor practice. I agree. The subject was broached by
Teasdale and Kearns did nothing more than respond. His
cautions to Teasdale had nothing to do with possible
Employer retaliation, but were designed to put Teasdale on
notice of Kearns' opinion of some union elements he
believed to be undesirable. Kearns' comments, as an agent
of the Respondent, do however, display Company hostility
to the Union.
Spear concedes he had a brief discussion with Milton
Teasdale during the week of March 5 that amounted to an
474
FERLAND MANAGEMENT COMPANY
inquiry by Spear, after Teasdale had spoken of the Union,
if the union movement was caused by Spear's hire.
Teasdale assured him that it was not. I view Spear's
question as quite natural in view of the general discontent
about the wages being paid to new employees, and do not
consider it to fall within the confines of unlawful interroga-
tion, nor does the complaint so allege. Similarly, at another
point in March, either March 5 or 11,19 during a discussion
about Milton Teasdale doing redecorating by himself,
Teasdale remarked he would get help when the Union got
in. These conversations, as well as the one with Kearns,
demonstrate that Milton Teasdale was the most vocal of
the employees in discussions with management regarding
his union sympathies.
On March 11, Ferland issued a memorandum to Milton
Teasdale which was placed in a sealed envelope and
forwarded to Spear who delivered it to Teasdale at the end
of the day. Teasdale did not open and read it until he got
home from work. The memo reads as follows:
Milt, upon reviewing your time card today, I find
you are still turning in time for working on your lunch
period. As I told you before, this is not a good practice.
Therefore, I must ask that effective 3/12 you take your
1/2 hour lunch break as all other employees do. Also,
please remember that no overtime for Saturday work is
allowed, other than that allowed in writing by your
supervisor, or someone else of equal authority.
The following morning, Spear mentioned to Ferland that
Milton Teasdale had been absent on March 10 without
reporting in. According to Spear, Ferland said he would
look into it. Ferland concedes that he was aware of the
absence on March II when he issued the memo to
Teasdale and did not intend to ask Spear about it, but
claims he did not then know it was an unreported absence.
According to Ferland, the fact that the absence was
unreported was what persuaded him to discharge Milton
Teasdale. Ferland equivocally first testified that he did not
ask Spear what Teasdale's excuse was and did not know if
he had one, but then claims that he asked Spear if Teasdale
had offered a valid excuse to which Spear answered he had
not, and then later testified that he did not ask Spear
whether Teasdale had offered any excuse. Spear does not
recall saying anything to Ferland other than that Teas-
dale's absence was unreported. Without corroboration by
Spear, which is notable by its absence, and given the
vacillating inconsistency of Ferland's testimony on the
matter, I find that Ferland did not ask whether Teasdale
had an excuse, nor did Spear say he did not.
In any event, Ferland called Spear back into his office
later in the morning about 10 or 10:30 and told him that he
had decided to discharge Teasdale for the nonreported
absence and "other violations," and that Spear should have
Milton Teasdale in the office at 4:30 p.m. Spear delivered
Teasdale at the appointed time to Ferland's office and
remained through the discharge interview. From a compos-
ite of the credible testimony, it appears that Ferland told
19 I do not regard the date as a significant matter, but on balance, I am
inclined to fix the date as March II, in view of Bessette's testimony
corroborating Milton Teasdale on the matter.
20 I regard other matters of alleged misconduct raised after the decision
Teasdale that he was being discharged for the nonreported
absence as the main reason, and other company policy
violations including the ones mentioned in the March 11
memo. During the conversation other matters were
touched on relating to the reasons, but it is clear that
Respondent takes the position Teasdale was fired for the
nonreported absence and the March I 11 memo items. 20 It is
also clear that Respondent concedes that but for the
nonreported absence Teasdale would not have been
discharged. Teasdale protested to Ferland that he was
being fired for union activities, which Ferland denies was
the case, and Ferland acknowledges that Teasdale told him
he was sick on the day in question but states he disregarded
that excuse, even though he concedes that he does not
know if Teasdale was sick or not.
A reconstruction of the events relating to the March I
warning and March 12 discharge, with careful consider-
ation of the relative credibility of the witnesses and logical
consistency and probability, leads me to the following
conclusions.
Teasdale had worked directly for Respondent as a
painter for about 8 years. During that time he had, so far as
the record shows, received no warnings or other discipline
and his work was satisfactory. He had long been granted
permission by Ferland to work through his lunch hour and
on Saturdays as the work required. He worked four
Saturdays in January 1976.
Although it appears that Ferland, sometime in December
1975, asked Teasdale why he was claiming one-half hour
overtime and told him Respondent could neither verify nor
approve of him working through his lunch period, and
Spear told Teasdale that he could not work during lunch,
apparently at a later date in December 1975 or January
1976, 1 credit Teasdale's testimony that he protested
Spear's action to Ferland who then told him to go ahead
and work the lunch hour in view of the fact it was a
longstanding practice of Teasdale to so do, and I find that
Ferland thereby rescinded his earlier instruction not to
work during lunch.
There was no more criticism of Teasdale's work practices
until the March 11 memo, nor is there any evidence
Ferland imparted any instructions to Spear, Teasdale's
supervisor, to correct them even though Spear was the one
who normally checked the weekly timecards which reflect
the days and hours worked. Ferland's apparent claim that
his first instructions to Teasdale in December to change his
work practices remained in full force and effect is belied by
the total absence of any attempt to police Teasdale's work
to assure he was conforming to the purported instructions
even though Ferland well knew that Teasdale's work habits
for many years, which Ferland had expressly condoned,
were contrary to his alleged December instruction. Fur-
thermore, even Ferland's memo of March 11 bears no
warning, express or implied, of discharge for repetition
before Teasdale's discharge.
The only real reason advanced by Respondent for
Teasdale's discharge that has any colorable merit at all is
to discharge, as justification therefor. to be mere makeweights, and the very
attempt to raise additional defenses testifies to the weakness of the primary
asserted reasons.
475
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the failure to report in that he was off sick. Apart from the
totally incredible idea that Respondent would be persuad-
ed to discharge such a long-term satisfactory employee for
one such infraction, without even seeking an explanation,
the pretext in the thing is clearly shown by Ferland's
testimony, in an attempt to show past practice, that he had
fired Merola and Bird for not reporting absences, which he
then retracted in the face of company records showing both
had voluntarily quit. Respondent proffered no evidence
that anyone had been fired for not reporting absences. The
Company's own rules on the matter do not prescribe
precipitate discharge as the remedy. Respondent's records
show that loafing on the job, checking in early, sleeping on
the job, nonreported absences, refusal to wear company
uniforms, the use of abusive language to tenants, repeated
horseplay on the job, use of company property for personal
gain, and drinking on the job, all occasioned only a
warning for the employee concerned until a number of
these occurrences accumulated. The Company records thus
reflect a lenient attitude toward employee breaches of
policy, which sharply contrasts with the rapid discharge of
Milton Teasdale, a capable long-term employee with a
proven record of satisfactory performance.
As Respondent concedes, and Spear testifies, when
Teasdale reported to work on the morning of March 11
Spear asked where he had been the day before and,
receiving the reply that Teasdale had been off sick, neither
questioned the excuse nor reprimanded or disciplined
Teasdale in anyway. Spear merely told Teasdale he was
glad he was back and to go complete the job he was
assigned to do the day before. Spear expressed no
particular concern about the matter and did not mention it
to Ferland until March 12, when, in the course of other
work-related discussion, he commented to Ferland that
Teasdale's absence had been unreported by Teasdale.
From his testimony, and my observation of Spear, it was
apparent to me that he attached no great importance to the
matter. This contrasts sharply with Ferland's rapid action
in discharging Teasdale upon receiving Spear's comment
that the March 10 absence was unreported. I find it
difficult to believe, in the face of the record of various types
of misconduct by other employees, including nonreported
absence, which drew nothing more than warnings and long
tolerance from Respondent, and Ferland's failure to
impress on Spear the alleged gravity of an offense like that
of Teasdale's, which he obviously had not in view of
Spear's mild reaction to Teasdale's absence, that Ferland's
decision to discharge was based on some established
company policy. Viewed in this light, I am persuaded that
Ferland seized upon Spear's comment about Teasdale and
coupled it with the March I warning concerning matters
even he did not think warranted discharge to rid himself of
a leading union adherent and thus himself "nip this thing
in the bud." Ferland knew from his February 27 conversa-
tion with Teasdale that he was active in the Union's
campaign, and his request for Teasdale's help to stop the
Union implies a belief that Teasdale was in a position to do
21 See Hartsell Mills Company v, N.L.R.B., Ill F.2d 291, 293 (C.A. 4,
1940); and N.L.R.B. v. Tepper, Edward P., d/b/a Schoenberg Farms, 297
F.2d 280(C.A. 10, 1961).
22 N.L.R.B. v. Symons Manufacituring Co., 328 F.2d 835, 837 (C.A. 7,
1964).
so. Even if one accepts Ferland's version of the February
27 conversation, which I do not, Teasdale's alleged claim
that he could nip the campaign in the bud was enough to
alert Ferland of Teasdale's strategic position in the
organizing campaign.
Respondent admittedly is hostile to union organization
of its employees, and Kearns' comments to Teasdale
demonstrate the depth of Respondent's antipathy. Milton
Teasdale was the leader of employees in the Union
campaign, and he was the one most prominently known to
the Company as a union adherent. Ferland knew it, Spear
knew it, Kearns knew it, but no other employee's union
activities were made so apparent to Respondent. He was
discharged but 14 days after Ferland interrogated him and
sought his assistance in defeating the Union, and during
the period between February 27 and his discharge Teasdale
spoke favorably of the Union to both Kearns and Spear.
The causes advanced by Respondent to justify the March
11 memo and the discharge are flimsy constructs that will
not withstand the breath of reason, and I conclude from all
the evidence that both were motivated by Respondent's
union animus applied to the Union's most visible adherent,
Teasdale. The Board and courts have repeatedly observed
that the employer's motive in cases of this type is often
determined by circumstantial evidence.21 It is clear that
"the mere existence of valid grounds for a discharge is no
defense . . . unless the discharge was predicated solely on
those grounds, and not by a desire to discourage union
activity."22 If there are legitimate grounds for discharge,
"the question is whether those were in fact the only
grounds . . . or whether they were put forth as a mere
pretext to justify an impermissible discharge." 23
I am convinced and find, for all of the reasons set forth
above, that Respondent's asserted reasons for the March
11 memo to Milton Teasdale and his March 12 discharge
were advanced as pure pretext to mask an unlawful
motivation, and that the March 11 memo altering Teas-
dale's working conditions and his subsequent discharge
were for the purpose of discouraging union activities in
violation of Section 8(a)(3) and (1) of the Act.24
4. The objections
The objections to the election set for hearing in Case 1-
RC-14352 read as follows:
"2. On or about March 12, 1976, the day after the
Petitioner requested a Board election, Employer
through its agent Richard Ferland discharged employee
Milton Teasdale for union activity.
"4. By these and other acts the above named
Employer has interfered with, restrained and coerced
employees in the exercise of rights guaranteed in
Section 7 of the Act."
Respondent contends that the objections should be
overruled because there was no objectionable conduct
23 N.L.R.B. v. Pembeck Oil Corp., 404 F.2d 105, 109-110(C.A. 1, 1969).
24 In reaching this decision, I have carefully examined the findings and
related papers of the Rhode Island Department of Employment Security
regarding Teasdale's discharge and find nothing therein to alter my
conclusions.
476
FERLAND MANAGEMENT COMPANY
alleged to have occurred after Respondent became aware,
on March 15, of the filing of the petition, and that Milton
Teasdale's discharge of March 12 "cannot be held to have
occurred during the pre-election period for purposes of a
finding that the election should be set aside, in the context
of a Section 8(a)(5) case." Respondent argues that the
purpose of the Ideal Electric25 rule, which sets forth the
period between the date of the filing of the petition and the
date of the election as the timespan within which
objectionable conduct must occur to warrant setting aside
an election, is to prohibit interference with the election
process from the point the employer becomes aware of "the
fact that than an election is imminent," and an employer
cannot be guilty of seeking to interfere with an election
which he does not know has been requested. This argument
is plainly contrary to established Board law. There is no
requirement that the Employer know of a petition before
he can be held accountable for his objectionable conduct.
The Ideal Electric rule carries no such caveat, nor does the
further extension and explanation of the Ideal Electric rule
in Goodyear Tire and Rubber Company, 138 NLRB 453
(1962), establish any such exception. Furthermore, it is well
settled that the Board will consider objectionable conduct
occurring on the date the petition was filed, even though it
occurred prior to the hour of filing. West Texas Equipment
Company, 142 NLRB 1358 (1963). Respondent, however,
points to Connor Trading Companr, Inc., 188 NLRB 263
(1971), as precedent for its argument. This reliance is
misplaced. Connor does not purport to change the rule of
Ideal Electric and Goodyear Tire and Rubber, nor does it do
so. Connor merely holds that the employer therein did not
commit objectionable conduct by announcing wage in-
creases because it was not shown that the timing of the
announcement was for the purpose of influencing employ-
ees in their choice of bargaining agents, or that the
employer even had notice of any continued union interest
in representing its employees. In short, there was no illegal
motivation by Connor and the objection therein failed on
its merits. This is quite different from the situation in the
instant case where there was a continuing union campaign
of which Respondent was aware, and the record displays
an illegal motivation in Ferland's statements of February
27 and the March 11 and 12 actions taken against
employee Union Leader Milton Teasdale. Accordingly, I
find Connor clearly distinguishable on its facts and
unsupportive of Respondent's thesis that an employer must
know of a pending petition before it can be held liable for
its objectionable conduct.
The only matters before me that fall within the critical
period are the warning to Teasdale of March 11 and his
discharge on March 12. 1 do not believe that the March I
warning, although an unfair labor practice, is in itself
sufficient to warrant setting aside the election because it
was only communicated to Teasdale and could only have
had a minimal effect on the election in that it could only
have affected his vote, which was not determinative of the
results. An unlawful discharge, however, has an impact far
2S Ideal Electric Co., 134 NLRB 1275 (1961): Goodvear Tire and Rubber
Company. 138 NLRB 453 (1962).
26 Irving Air Chute Comrany. Inc., Marathon Division, 149 NLRB 627
(1964).
beyond the discharge, particularly the discharge of a
leading union adherent the effect of such discharges was
aptly described by my colleague Administrative Law Judge
Silberman in Performance, Inc., 208 NLRB 618, 625 (1974),
in the following terms:
A threat then hangs over the remaining employees that
if they support the Union they too will be subject to
peremptory removal from their jobs. Such threat is a
forceful constraint on the exercise by employees of their
statutory rights to engage in self-organizational activi-
ties. It interferes with the opportunity the statute gives
employees to make a rational, considered and free
choice in a representation election. Also, the fears
generated in employees by the discharge of coworkers
are pervasive, difficult to extinguish, and quick to
reappear under only slight stimulus.
I concur completely in Administrative Law Judge
Silberman's exposition of the effect of an unlawful
discharge on the electorate, and conclude that the illegal
discharge of Milton Teasdale on March 12 is objectionable
conduct requiring that the election be set aside, and I shall
so recommend to the Board.
5. The duty to bargain and the refusal to bargain
Having concluded that the election should be set aside, it
is now appropriate to consider the refusal-to-bargain
allegations. 26 The parties have agreed to the appropriate
unit which is set forth hereinabove.
The evidence derived from the Respondent's records,
stipulations of the parties, and the credible testimony
discloses the following unit composition:
Payroll ending date 2/11-number of employees 32;
2/18-32; 2/25-32; 3/3-31;27 3/10-32; 3/17-31;
3/24--31; 3/31--31;28 4/7-27; and 4/14-27. (Including
Milton Teasdale.)
The following named unit employees signed valid union
authorization cards on the dates set after their names.
Milton Teasdale
Raymond Teasdale
Ronald Bessette
Edward Godfrey
Michael Lanctot
Eric Francis
Robert Fernandes
Stephen Casey
Harvey Williams
Kim Davis
John Russell
George Murdock
Robert Resendes
Stephen Covill
Fred Browne
Kenneth Bouvier
February
February
February
February
February
February
February
February
February
February
February
February
February
February
February
February
7
7
7
8
10
II
II
II
11
13
21
26
27
27
28
28
27 Kevin Meehan was not an employee after February 25.
26 Kim Davis. Stephen Casey. Michael Merola. and John Russell.
included in the number. were terminated March 26. Therefore, there only
remained 27 unit employees thereafter.
477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paul Dansereau 29
Dominic Giorgianni
Michael Merola
Robert Maurice
Theodore Gramstorff
March 2
March 4
March 10
March 16
March 16
From the foregoing, it can be seen that the Union
enjoyed majority status commencing February 28, when
valid authorization cards had been signed by 16 of the 31
unit employees. Its majority increased to 19 of 32 on
March 10, which was Dansereau's last day of employment;
went to 20 of 31 by March 16; remained at that level until
Davis, Casey, Merola, and Russell were terminated on
March 26; and thereafter stood at 16 of 27 through April
14.
Respondent, by its agent Ferland, knew there was union
activity among its employees at least as early as February
27, and on that date, embarked on its course of unfair labor
practices which were aimed at discouraging employee
support of the Union and thus prevent the Union from
attaining majority status, or destroying any majority status
the Union may have attained. I find that Respondent's
unfair labor practices, particularly the discharge of Milton
Teasdale, interfered with the election process, had a
tendency to undermine the Union's majority strength, and
prevented the holding of a fair election on April 16. In
these circumstances a bargaining order effective February
27 is warranted to protect the employees' statutory right to
select their own collective-bargaining representative, and to
be free from restraint or coercion in the exercise of that
right.30
Upon the foregoing findings of fact and conclusions
based thereon, and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
I. The Respondent, Ferland Management Company, is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union, Rhode Island Workers Union, Ind., is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The following unit constitutes a unit appropriate for
collective bargaining:
All full-time and regular part-time maintenance, janito-
rial and landscape employees of the Respondent,
employed at service locations at which the Respondent
has custodial management contracts, including Four
Seasons North and Plaza Village, Woonsocket; Four
Seasons East, East Providence; Four Seasons South,
Warwick; Four Seasons West, West Warwick; and
George Street Apartments, Pawtucket, Rhode Island,
excluding guards and supervisors as defined in Section
2(11) of the Act.
4. At all times since February 28, 1976, and continuing
to date, the Union has been the exclusive representative of
all the employees within said appropriate unit for purposes
29 Dansereau was terminated March 10.
:3o N.L.R.B. v. Gissel Packing (bo. Inc., 395 U.S. 575 (1969): Trading Port,
of collective bargaining within the meaning of Section 9(a)
of the Act.
5. By interrogating Milton Teasdale about his union
activities on or about February 27, 1976, Respondent has
violated Section 8(a)(1) of the Act.
6. By soliciting grievances from and offering Milton
Teasdale improved wages, benefits, and working condi-
tions on February 27, 1976, in order to induce him to
abandon his union activity, Respondent violated Section
8(a)(1) of the Act.
7. By soliciting Milton Teasdale, on February 27, 1976,
to assist in undermining and destroying the Union's
organization effort, that Respondent violated Section
8(a)(1) of the Act.
8. By eliminating, on March 11, 1976, Milton Teas-
dale's lunch time and Saturday work in reprisal for his
union activities, Respondent violated Section 8(a)(3) and
(1) of the Act.
9. By discharging Milton Teasdale on March 12, 1976,
for engaging in union activities, and thereafter failing or
refusing to reinstate him, Respondent has violated Section
8(a)(3) and (1) of the Act.
10. Respondent engaged in objectionable conduct
requiring that the election conducted on April 16, 1976, in
Case I-RC-14352 be set aside.
11. By engaging in the above-described violations of
Sections 8(a)(3) and (1) of the Act for the purpose of
undermining and destroying the Union's majority status,
or to prevent it from attaining such status, Respondent
violated Section 8(a)(5) and (1) of the Act.
12. The violations of the Act found herein interfered
with the election process, had a tendency to undermine the
Union's strength, prevented the holding of a fair election,
and warrant the issuance of a collective-bargaining order.
13. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
In order to remedy the unfair labor practices found
herein my recommended Order will require Respondent to
cease and desist from further violations, to post an
appropriate notice, and to offer unconditional reinstate-
ment to Milton Teasdale and make him whole for all wages
lost by him as a result of his unlawful discharge, such
backpay to be computed on a quarterly basis, plus interest
thereon at 6 percent per annum, as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). I will also
recommend that the Respondent be ordered to recognize
and bargain with the Union as the exclusive collective-
bargaining agent of the employees in the unit found
appropriate herein.
Pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
Inc., 219 NLRB 298 (1975); Beasley Energy, Inc., d/b/a Peaker Run Coal
Company, Ohio Division #1, 228 NLRB 93 (1977).
478
FERLAND MANAGEMENT COMPANY
ORDER 31
The Respondent, its agents, officers, successors, and
assigns, shall:
i. Cease and desist from:
(a) Discouraging membership in the Union, or any other
labor organization, by discharging employees or otherwise
discriminating in any manner in respect to their tenure of
employment or any term or condition of employment.
(b) Refusing to recognize and bargain with the Union as
the exclusive bargaining representative of all the employees
in the above-described appropriate unit.
(c) Coercively interrogating employees concerning their
and other employees' union activities and desires.
(d) Soliciting grievances from and promising benefits to
employees for the purpose of discouraging union activity.
(e) Soliciting employees for assistance in undermining
and destroying union organizational efforts among its
employees.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the purpose of the Act:
(a) Upon request, recognize and bargain with the Union
as the exclusive representative of all employees in the
aforesaid appropriate unit and, if an understanding is
reached, embody such understanding in a written, signed
agreement.
(b) Offer to Milton Teasdale immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make Milton Teasdale whole for any loss of earnings he
may have suffered by reason of the discrimination against
him, in the manner set forth in the section of this Decision
entitled "The Remedy."
(c) Preserve and, upon reasonable request, make avail-
able to the Board and its agents, for examination and
copying, all payroll records and reports and all other
records required to ascertain the amount, if any, of any
backpay due under the terms of this recommended Order.
(d) Post at its Rhode Island offices and facilities, copies
of the attached notice marked "Appendix."3 2 Copies of
said notice, on forms provided by the Regional Director for
Region 1, after being signed by the Respondent's autho-
rized agent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that these notices are not altered, defaced, or
covered by other material.
31 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
32 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
(e) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply with this Order.
IT IS FURTHER ORDERED that Case I-RC-14352 be, and it
hereby is, transferred to and continued before the Board in
Washington, D.C., and that the provisions of Section
102.46 and 102.69(e) of the Board's Rules and Regulations,
Series 8, as amended, shall govern the filing of exceptions
in said case.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE hereby notify our employees that:
WE WILL NOT discourage membership in Rhode
Island Workers Union, Ind., or any other labor
organization, by discharging any of our employees or in
any other manner discriminating against them in
regard to their tenure of employment or any term or
condition of employment.
WE WILL NOT interrogate our employees concerning
their or other employees' union activities, membership,
or desires.
WE WILL NOT solicit grievances from and/or promise
benefits to our employees for the purpose of discourag-
ing their union activities.
WE WILL NOT solicit our employees to assist us in
undermining and destroying union organizational
efforts.
WE WILL NOT refuse to recognize or bargain with
Rhode Island Workers Union, Ind., as the exclusive
representative of all employees in the bargaining unit
described below.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL upon request, bargain collectively with
Rhode Island Workers Union, Ind., as the exclusive
bargaining representative of all the employees in the
bargaining unit described below with respect to rates of
pay, wages, hours of employment, and other conditions
of employment, and, if an understanding is reached,
embody that understanding in a written, signed
agreement. The bargaining unit is:
All full-time and regular part-time maintenance,
janitorial and landscape employees employed by
us at service locations where we have custodial
management contracts, including Four Seasons
North and Plaza Village, Woonsocket; Four
Seasons South, Warwick; Four Seasons West,
West Warwick; and George Street Apartments,
Pawtucket, Rhode Island, excluding guards and
supervisors as defined in Section 2(11) of the Act.
WE WILL offer to Milton Teasdale immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
479
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings
he may have suffered as a result of the discrimination
against him.
All our employees are free to join Rhode Island Workers
Union, Ind., or any other labor organization.
FERLAND MANAGEMENT
COMPANY
480