Lebanon Homes of New England, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1975

216 N.L.R.B. 717 (N.L.R.B. 1975)

LEBANON HOMES OF NEW ENGLAND 717
Lebanon Homes of New England, Inc. and Amalga-
mated Meat Cutters and Butcher Workmen of
North America , AFL-CIO, Allied District Local
Union No. 128 . Case 1-CA-9918
February 26, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On October 31, 1974, Administrative Law Judge
Paul E. Weil issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions I of the Administrative Law Judge and to
adopt his recommended Order.
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 and
hereby orders that Respondent, Lebanon Homes of
New England, Inc., Oxford, Maine, its officers,
agents , successors, and assigns , shall take the action
set forth in the said recommended Order.
I In reaching his conclusion that Fred Carpentier was not a managerial
employee, the Administrative Law Judge relied on United Federal Savings
and Loan Association of Puerto Rico, 209 NLRB 1078 (1974). Shortly after
the issuance of United Federal Savings on April 4, 1974, the Supreme Court.
on April 23, 1974, handed down its decision regarding managerial
employees in N L.R. B v. Bell Aerospace Company, Division of Textron Inc,
416 U.S. 267 (1974). We do not rely on United Federal Savings to reach our
decision but rather on Westinghouse Broadcasting Company, Inc.
(WBZ-TV), 215 NLRB No. 26 (1974), and General Dynamics Corporation v.
Convair Aerospace Division, San Diego Operations, 213 NLRB 856 (1974),
considered after the Supreme Court decision . Member Kennedy agrees that
Carpentier is not a managerial employee and, therefore , he concurs in the
result.
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On June 25,
1974, Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, Allied District Local Union
No. 128, hereinafter called the Union, filed with the
Regional Director for Region 1 of the National Labor
Relations Board , hereinafter called the Board, a charge
alleging that Lebanon Homes of New England, Inc.,
hereinafter called Respondent , violated Section 8(a)(1) and
(3) of the Act by discharging an employee, Fred Carpen-
tier, because of his membership in and activities on behalf
of the Union. On July 24, 1974, the said Regional Director,
on behalf of the Board's General Counsel, issued a
complaint and notice of hearing alleging that Respondent
violated Section 8(a)(1) and (3) of the Act by Carpentier's
discharge. Respondent filed an answer admitting the
discharge but denying any unfair labor practices. Thereaf-
ter on August 23, 1974, counsel for the General Counsel
filed a notice of intent to amend the complaint to allege
that Respondent had interfered with, restrained, and
coerced its employees by asking Carpentier why he had
attended a union meeting and discharging him and telling
him he was discharged for attending that meeting and by
informing employees that he had discharged Carpentier for
attending a union meeting . On the issues thus joined, the
matter came on for hearing before me at Auburn, Maine,
on September 4, 1974. The Charging Party did not attend
the hearing; however, the General Counsel and Respon-
dent were present and were represented by counsel. At the
opening of the hearing the General Counsel moved to
amend the complaint in the particulars set forth in the
notice of intent to amend the complaint, which motion was
granted, and Respondent filed an amendment to its answer
denying the alleged content of the discussion between
Respondent President Weber and Mr. Carpentier, and
admitting that Mr. Weber told the employees that
Carpentier had been discharged, but denying the allegation
with respect to the reasons for such discharge. At the close
of the hearing the parties were afforded an opportunity to
argue orally on the record and General Counsel did so. A
brief has been received from Respondent.
Upon the entire record in the case and in consideration
of the argument and brief, I make the following:
FINDINGS OF FACT
1. BUSINESS OF THE EMPLOYER
It is alleged and admitted that Respondent is engaged in
the manufacture , sale, and distribution of mobile and
modular homes in the State of Maine. Respondent
annually ships goods directly from its plant in Maine to
points located outside the State of Maine valued in excess
of $50,000, and annually receives goods at its Maine plant
directly from points outside the State of Maine valued in
excess of $50,000.
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
216 NLRB No. 111
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED newspaper to which Mr. Carpentier responded. He was
interviewed both by Weber and Sherwood, they checked
some of the work that he brought with him to display his
talent, told him that he would be expected to learn to read
the codes and apply them, especially with regard to
plumbing and electricity, fields in which he had not
theretofore worked, and hired him. Sherwood asked
Carpentier what pay he expected and he said he wanted $3
an hour; Sherwood agreed with that figure before
consulting with Weber. Weber informed Carpentier that all
of his "management" personnel were paid on a weekly
salary and that he would be paid $120 a week, which was
satisfactory to Carpentier. Carpentier commenced his
employment doing drafting work for Respondent. During
the month that he was employed Sherwood would lay out
the work for Carpentier to do, changes to be made to basic
models. Carpentier would take the blueprints of the basic
models out of the file, draw in the changes required by
Sherwood's orders, and take copies of the blueprints to the
production department where they would be built under
Sherwood's supervision.
Respondent admits that Carpentier had none of the
attributes of a supervisor; indeed he had no one to
supervise and had no supervisory authority in the pro-
duction shop. He was called a management trainee; the
only evidence of any job for which he was being trained
was that of a design engineer. The task of a design engineer
is to keep up with the changes of codes and change the
basic blueprints to conform with the codes, take the orders
from salesmen which required some change in the basic
construction of the mobile homes, and change the
blueprints to enable the production people to build
according to the changed characteristics of the basic
mobile homes. While there is no question that the design
engineer or draftsman (and the words are used inter-
changeably) affected Respondent's business in a funda-
mental way, there is no evidence that he had any basic
discretion in so doing. Weber testified that the design
engineer had no function regarding the basic design of the
product; his function was to apply to the basic design of
the product such changes as the law or the customer
required. In order to do so necessarily he would have had
to draft in additional equipment, or construction materials,
or perhaps draft them out depending on changes required
which in its turn would have led to a greater or smaller cost
in building the product, but he had no function to redesign
the product other than within these limitations.
Carpentier's work either at the time of his discharge or in
future contemplation did not involve participation in the
formulation, determination, or effectuation of policy with
respect to employee relations matters. He had neither real
nor apparent authority to speak for the Employer on a
labor relations or employee relations context; he exercised
no discretion and made no recommendations; he had no
power to pledge the Employer's credit. Weber testified that
Sherwood had exercised authority to purchase from $20 to
the mobile homes were constructed reflected design features required by the
building codes of various States in which the product is sold. The design
engineer or draftsman was also responsible for making changes in basic
designs to accommodate requirements of customers who wanted a window
changed or an additional bathroom or other changes in the product they
buy
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
The central issue in this case is whether Carpentier was a
management trainee and as such part of management in
the sense that he lacks the protection of the Act under the
decision of the United States Supreme Court in the Textron
case.' There is no issue of fact as to what was done with
Mr. Carpentier . It is admitted that on June 19, during the
course of a union organizational campaign , Respondent by
its president , Weber, called together all the members of its
"management team" and informed them that a union
meeting would take place that night and that he did not
want any of them to attend the meeting or take any part in
it. Nevertheless , Carpentier attended the union meeting.
The following day Weber was informed of Carpentier's
presence at the union meeting , called him into his office
and asked him if he had attended the meeting . Carpentier
at first denied and then admitted his attendance , whereup-
on Weber discharged him for disobedience of his direct
orders.
If Carpentier is indeed a managerial employee under the
Act as Respondent contends , his discharge is not unlawful
inasmuch as the Supreme Court has determined in the
above-cited Textron case that managerial employees are
denied the protection of the Act. On the other hand, if he is
not a managerial employee , as the General Counsel
contends, it is clear that Respondent violated Section
8(a)(3) and (1) by his discharge and Section 8(a)(1) by the
warning to him and the other employees present in the
office on June 19 not to attend the meeting.
From the testimony of President Weber and of Wayne
Sherwood, the production manager of Respondent, and as
stated by Respondent's counsel in his brief , all persons
employed by the Company are divided into two groups: a
management team and hourly employees. The "manage-
ment team" consists of all personnel other than the
production employees. All production employees, that is to
say the employees who make the product of Respondent
and work in the factory, are hourly paid. All other
employees including the officers of Respondent, buyers,
salesmen , and engineering , accounting, and clerical em-
ployees work in a separate small building and are paid on a
weekly salary.
The business of Respondent has increased somewhat,
requiring some increase in the number of employees and in
the managerial hierarchy. As a result Wayne Sherwood,
who had been the design engineer,2 testified that he was
promoted from the position of design engineer to that of
production manager but continued to do the engineering
work while Respondent searched for a draftsman to take
his place. An advertisement was placed in the local
I N L R B v. Bell Aerospace, Co (Textron, Inc), 416 U.S 267 (1974).
2 The term design engineer as explained by Mr. Sherwood does not
denote a person with a college degree in engineering but in the frame of
reference of Respondent 's employment was the sole occupant of the
"engineering" staff, a draftsman with the responsibility to keep up with
changes in code provisions in order to assure that the blueprints from which
LEBANON HOMES OF NEW ENGLAND 719
$50 worth of material for use in the drafting room , mostly
having to do with blueprint machines , which he, Weber,
normally approved without consultation . It appears from
this testimony that not even Sherwood had any independ-
ent authority to pledge any part of Respondent 's credit, at
least over $20. Also there is nothing in the record that
suggests any inconsistency or any conflict of interest
between the design engineer's proper performance of his
duties and the implementation of his right to engage in, or
refrain from engaging in, concerted activities . The fact is
the design engineer is clearly shown to be a technical
employee who would be included or excluded from the
unit of production and maintenance employees in accor-
dance with normal Board handling of that issue but as to
whom there is no real issue of employment status . In short,
although all employees including clerks and accountants,
were called managerial by Respondent, the design engineer
or draftsmen had no managerial characteristics .3
As I have found that Carpentier was an employee within
the meaning of the Act and not a managerial employee and
accordingly is protected by the National Labor Relations
Act, and as I have found that he was discharged because
he attended a union meeting in violation of instructions
not to do so by Respondent , I find that his discharge
violates Section 8 (a)(3) and (1) of the Act and that the
instructions given to him interfered with, restrained, and
coerced him and other employees within the meaning of
the Act, in violation of Section 8(a)(1) of the Act. I further
find that by informing other employees that Carpentier
had been discharged because he disobeyed Weber's orders
not to attend a union meeting , which is admitted by
President Weber , Respondent further interfered with,
restrained , and coerced employees in the exercise of their
protected rights in violation of Section 8(aXl) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
of its employees , thereby discouraging membership in a
labor organization and thereby engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(3) of the Act.
4. By the discharge of Frederick Carpentier, by
warning and ordering him not to attend a union meeting,
and by informing employees that Carpentier had been
discharged for disobeying instructions and attending a
union meeting, Respondent interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed
them by Section 7 of the Act in violation of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Having
found that Respondent has discharged and has failed to
recall Frederick Carpentier, I shall recommend that
Respondent offer him reinstatement to his former job or, if
his job no longer exists, to a substantially equivalent job,
and make him whole for any loss of earnings he may have
suffered as a result of the discrimination against him by
payment to him of a sum of money equal to that which he
normally would have earned, from the date of his
discharge to the date of a valid offer of reinstatement, less
net earnings during such period to be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and with interest as prescribed in his Plumbing
& Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
The activities of the Respondent set forth in section III,
above , occurring in connection with its operations de-
scribed in section I, above , have a close , intimate, and
substantial relationship to trade , traffic , and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
CONCLUSIONS OF LAW
1. Lebanon Homes of New England, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, Allied District Local Union
No. 128, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging and refusing to recall Frederick
Carpentier, Respondent discriminated with regard to the
hire and tenure and terms and conditions of employment
3 See United Federal Savings and Loan Association of Puerto Rico, 209
NLRB 1078(1974).
4 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,
ORDER4
Respondent, Lebanon Homes of New England, Inc., its
officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf
of Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Allied District Local Union
No. 128, or any other labor organization, by discriminating
in regard to the wages, hours, and working conditions of its
employees because of their activities on behalf of said
labor organization.
(b) Urging and ordering its employees not to attend
union meetings, and informing employees that fellow
employees had been discharged for disobeying such orders.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to form, join, or assist any
labor organization, to bargain collectively through repre-
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.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentatives of their own choosing, to engage in any other
concerted activities for the purpose of collective bargaining
or other mutual aid or to refrain from any or all such
activities.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Offer to Frederick Carpentier immediate and full
reinstatement to his former job or, if such job no longer
exists, to a substantially equivalent job, and make him
whole in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and receipts, and all other records
necessary to analyze the backpay due under the terms of
this recommended Order.
(c) Post at its plant in Oxford, Maine, copies of the
attached notice marked "Appendix." 5 Copies of said
notice , on forms provided by the Regional Director for
Region 1, after being duly signed by its representative,
shall be posted by Respondent 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 Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
S In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity to
present their evidence, it has been found that we violated
the National Labor Relations Act, and we have been
ordered to post this notice and to keep our word about
what we say:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT discourage membership in Amalga-
mated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, Allied District Local Union No.
128, or any other labor organization, by discriminatori-
ly discharging any employee because of his activities on
behalf of said labor organization.
WE WILL NOT tell our employees not to attend union
meetings, nor inform them that fellow employees had
been discharged for disobeying such orders.
WE WILL reinstate Frederick Carpentier to the job he
formerly held or, if this job no longer exists, to a
substantially equivalent job, and WE WILL make him
whole for any loss of pay he may have suffered as a
result of our discrimination against him by payment to
him of the amount of money he lost as a result of our
action.
LEBANON HOMES OF NEW
ENGLAND, INC.