Neptune Waterbeds, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1980

249 N.L.R.B. 1122 (N.L.R.B. 1980)

1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neptune Waterbeds, Inc. and Alan Farr. Case 1-
CA-14854
June 9, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On January 16, 1980, Administrative Law Judge
Peter E. Donnelly issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and the Charging Party filed exceptions and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
I The General Counsel and the Charging Party have excepted to cer-
tain 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 incor-
rect. Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing his findings.
The Charging Party alleges that the Administrative Law Judge's find-
ings are the result of hostility or bias against uniotization Upon full con-
sideration of the record and the attached Decision, we reject the Charg-
ing Party's allegations as unsupported.
The Administrative Law Judge stated that Respondent consulted with
counsel prior to preparing the letters sent to employees in December
1977. The record, however, does not support such a finding. This appar-
ently inadvertent error is insufficient to affect our decision herein.
2 The General Counsel and the Charging Party allege that the Admin-
istrative Law Judge failed to consider evidence of disparate treatment of
the Charging Party vis-a-vis other employees with poor attendance re-
cords. In adopting the Administrative Law Judge's conclusion that the
General Counsel has not established that a violation has occurred, our
review of the records introduced indicates that, while other employees'
work records showed certain deficiencies, no orther employee as to whom
evidence was introduced was shown to have had work-related problems
in as many areas as the Charging Party. Accordingly. we conclude that
the record does not support a finding that the Charging Party \was treat-
ed disparately.
In adopting the Administrative Law Judge's conclusions, we place no
reliance on his comments concerning the Union's loss in a election held
in September 1977 and the subsequent lack of organizational actlsily by
union agents at the time of the events leading up to the Charging Party's
discharge Employees' actions in support of a union do not lose their pro-
tected nature merely because the union or other employees are not con-
sulted. Ohio Valley Graphic Arts, Inc., 234 NLRB 493 (1978). Neverthe-
less, we conclude that the record as a whole does not establish that Farr
was discharged for his organizational activities.
249 NLRB No. 168
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
PETER E. DONNI:I.I.Y, Administrative Law Judge: The
charge herein was filed by Alan Farr, an individual,
herein called Charging Party, on August 21, 1978, and
the complaint herein issued on October 3, 1978, alleging
that Neptune Waterbeds, Inc., herein called the Employ-
er or Respondent, violated Section 8(a)(3) and (1) of the
Act by discharging Farr because of his union activity.
An answer, thereto, was timely filed by Respondent and
pursuant to notice, a hearing was held before the Admin-
istrative Law Judge at Boston, Massachusetts on March
5-9, 1978. Briefs have been timely filed by the General
Counsel, Charging Party, and Respondent, which have
been duly considered.
FINDINGS OF FACT
1. EMPLOYER'S BUSINESS
The Employer is a Massachusetts corporation engaged
in the manufacture, sale, and distribution of waterbed
frames and related products. The Employer, in the
course and conduct of its business, causes large quantities
of wood and other materials used in the manufacture of
waterbed frames to be purchased and transported in in-
terstate commerce from and through various States of
the United States other than the Commonwealth of Mas-
sachusetts. Respondent's annual gross revenues exceed
$500,000. Respondent annually sells goods and materials
valued in excess of $50,000 directly to points located out-
side the Commonwealth of Massachusetts. The complaint
alleges, the answer admits, and I find that Respondent is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE l.ABOR ORGANIZATION
The complaint alleges, Respondent in its answer
admits, and I find that the United Furniture Workers of
America, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICE
A. Facts
Respondent is a manufacturer of waterbed frames, em-
ploying about 40 people at its plant in Dorchester, Mas-
sachusetts. Charging Party Alan Farr was an employee
of Respondent from about 1974 until his discharge on
March 28, 1978. He was engaged primarily in the assem-
bly of headboards. Farr was employed on a piece work
basis until the conversion to an hourly wage system in
the fall of 1977. Farr was one of the highest paid em-
ployees under the piece work wage system.
In the summer of 1977, an effort was made by the
Union to organize Respondent's production employees.
Farr was active in the organizational effort although he
did not engage in the solicitation of union authorization
-- - -------- --- - ___ __
NEPTUNE WATERBEDS, INC, 1123
cards. An election was conducted on September 7, 1977,
which the Union lost, garnering 6 or 7 votes of approxi-
mately 40 votes cast.
On the day after the election, Farr went on a cross-
country vacation with his parents, returning in early Oc-
tober. His original return date was extended with the ap-
proval of Respondent for about a week because of auto-
mobile difficulties.
In August 1977, Respondent hired William Drover
with the title of plant superintendent. At this time the
plant manager was Roy Curry. These individuals shared
responsibility for the operation of the plant until Drover
assumed full responsibility in about October 1977, when
Curry left. Drover was hired as part of an effort to reor-
ganize the plant's production and programming. Part of
these changes involved the elimination of the piece work
wage system and the institution of an entirely hourly
wage system. This change was instituted in the assembly
area where Farr was employed while he was on vaca-
tion. The plantwide change was completed in or about
November 1977. Farr was dissatisfied and objected to
the new system and the hourly rates. He complained to
Drover, and by way of protest, composed and distribut-
ed what is captioned "The Union Flier," dated March
20, 1978 (G.C. Exh. No. 9(a)).
In the fall of 1978, Respondent had become concerned
about what it regarded as a general problem of lateness
and absenteeism among the employees. With the advice
of counsel, letters were drafted and sent to some 10 em-
ployees. The letter to Farr dated December 19, 1977,
was signed by Drover and Robert Serino, Farr's supervi-
sor. It reads:
We, at Neptune are building a team to improve
our organization, maintain safety and thus provide a
better place to work as well as income and security
for our families.
Your work attitude toward your supervisor and
fellow workers and your repeated latenesses indi-
cate that you do not desire to be a part of that
team.
Unless [sic] you improve your attitude and cor-
rect your lateness problem I feel there is no position
for you in our organization.
Other similar letters to other employees appear in evi-
dence as General Counsel's Exhibits 4(a), (b), and (c).
The letter to Farr was prompted by complaints made
by Serino to Drover, during October and November
1977, concerning Farr's record of latenesses and his un-
cooperative work attitude. Drover testified that he had
spoken several times to Farr to improve his latenesses
during the fall of 1977, but that his attitude did not im-
prove. Serino also testified that he was so dissatisfied
with Farr's performance that he had several times rec-
ommended to Drover that Farr be discharged. Serino's
complaints had to do with his efforts at keeping Farr at
his work and in Farr's latenesses in coming to work and
his latenesses in returning to work after the morning and
afternoon breaks.'
I Production employees had two breaks, one in the morning from
10:30 to 10:45 and another in the afternoon from 3:30 to 3:45
Farr responded to the December 19 letter by drafting
and sending to Drover a letter dated January 2, 1978,
reading as follows:
In response to the letter of 12/19/77 1 want to
make the following statement: the charges against
me are obviously spurious and illegitimate and con-
sidering the two years of exceptional and loyal ser-
vice that I have given to the company your action
constitutes an insult of the first order. My lateness is
really a problem of your creation and is no worse
than others who curiously have received no letter.
Never has my being a few minutes late interfered
with production; indeed, my production record is
second to none. My attitude to my supervisor is ap-
propriate and is shared by the overwhelming major-
ity of the employees. As for my attitude to my
fellow workers the absurdity of your charge re-
quires no comment.
Consequently I must view your letter as another
act of provocation, motivated solely by political
considerations, concerning my activity as union or-
ganizer. Moreover, as the annual slump approaches
the real motive behind the letters becomes transpar-
ently clear: to fire instead of lay off. Such despica-
ble machinations only elicit the contempt they de-
serve and strengthen my resolve to protect my job
by all legal means at my disposal. Finally, it should
be clear to you that it is your attitude that has
ruined the credibility and good faith of your compa-
ny, poisoned the work atmosphere and left the em-
ployees no choice but to vote out your admininstra-
tion at the next union election.
Drover spoke to Farr about the letter, but Farr gave
him no response to his inquiries.
Thereafter, Drover recommended to Neil Vincent,
president of Respondent, that Farr be discharged, and
drafted, with the assistance of counsel, a letter dated Jan-
uary 5, 1978, reading:
A review of your record indicates that you have
been late or absent from work a total of 62 times in
the past 46 working days. Several months ago you
were involved in an argument with fellow workers
which ended in a fist fight in our building.
Your denial of the seriousness of these facts in
your letter dated January 2, 1978 is a further indica-
tion of your attitude. The company is left with no
alternative but to terminate your employment as of
this date.
However, Vincent decided, also on the advice of
counsel, that Farr's letter may have been a "set-up," de-
signed to trap Respondent into an unfair labor practice
discharge position, and the letter was never sent.2
After this letter, on January 9, 1978, Farr was in-
volved in an argument with an employee named George
White. At lunchtime on this day, Farr and White en-
2 The reference in this letter to a fist fight refers to an altercation be-
tween Farr and employee Clif Walker In about July 1977 in the shipping
area oIf the plant
NEPTUNE WATERBEDS, INC. 2
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in a discussion concerning the Union. Farr testi-
fied:
He [White] was saying that he didn't think the
Union would get in. He didn't want the Union to
get in. And he said that nothing would make him
join, and I said that if the union came in, it would
be policy for everybody to join; he would also have
to abide by the majority and he said nothing would
make him and he included me and inferred that if I
threatened him, he would do something to me.
At which time he challenged me more or less to
a fight, or he seemed to challenge me to a fight and
I just took up his challenge.
White's testimony varies from this account in certain
particulars, especially as to the challenge to fight. White
testified that Farr told him that he voted against the
Union in the recent election and he better not mess them
up the next time, hinting that people could get him on
the street on the way home, and finally challenged him
to "come out outside." Another employee, Steven
Bennet, corroborated White's account to the extent that
Farr offered to do physical harm to White. In these cir-
cumstances, I credit White's corroborated version.3
As noted earlier, Farr was dissatisfied with the
changes in Respondent's operating methods, and appar-
ently made a decision to reactivate interest in the Union
despite the fact that the Union had lost the prior Septem-
ber election. In furtherance of the effort, on or about
March 19, 1978, Farr drafted the union pamphlet cap-
tioned "The Union Flier" noted above, and put together
an antibusiness cartoon leaflet. (G.C. Exh. 9(b)). In order
to reproduce these, Farr, on the morning of March 22,
1978, went to Respondent's office area where a xerox
copier machine was located, and proceeded to run off
copies of the two leaflets. It is undisputed that Farr did
iot have permission to use the machine. But he testified
that he was not aware of any requirement to obtain per-
mission to use it, nor that there was any sign above the
nmlichine limiting the unauthorized use of it. However,
D)rover credibly testified that, at his direction, a sign
;.,ver the machine prohibiting the unauthorized use of the
machine was put up and dated on about August 20, 1977
(G.C. Exh. 16). I credit Drover's testimony that the sign
was posted, despite the testimony of ex-employee, Super-
visor John Langwig, that he does not recall seeing such
a sign.'4
On this same date, March 22, 1978, Farr distributed
the leaflets which he had reproduced. The distribution
took place mainly on breaktime at the morning break at
10:30. Htowever, as Farr concedes, he was observed by
Drover shortly after the buzzer sounded at 10:45 ending
the morning break, showing a pamphlet to an employee
and asking if he had seen it. Drover also testified that he
observed Farr talking as well as distributing pamphlets to
employees after breaktime had ended. Drover, that
'Ihe (ielltneral C(ounlsel urge that Iterllet', teSIinIon should h dis-
charged it iew If a priot breakinLg and e ttrirlg felon Col i onll
again HB nel t Htowever iIl rlly opiion. Helnl's corrohoraled tttilnlinlll
does have substantial esidentiary a;lue.
I anlgwig wsas asked to resign i June I78 hby I)rover who Itld hiun,
"If you can't get with the prograin. get ot "u
morning, asked Farr to do this on his own time, and, ac-
cording to Drover, Farr did not answer him when con-
fronted about the matter.
On the following day, March 23, 1978, Farr in his affi-
davit (G.C. Exh. 15) states that he was observed by
Drover discussing with other employees his experience
with the Company.
Drover testified that the conversations concerned "bet-
terments to the Company or whatever," and continued
after the break had ended. Farr concedes that at the
afternoon break on May 22, one conversation did go
shortly beyond the end of the break.
It appears that there did exist a company rule prohibit-
ing solicitation. This rule appears as an addendum to Re-
spondent's "Personnel Handbook," and is dated January
17, 1978. It reads:
Effective immediately, no one is permitted to so-
licit Neptune employees for any reason during
working hours in the working areas of the plant.
This rule does not apply to; [A limited, annual drive
for a company charity like United Fund, etc.]
"Working Hours" include those hour periods set
forth on Page 3 of this handbook, but excludes
lunch periods, scheduled breaks and relief periods.
"Working Areas" include those areas where pro-
duction packaging, shipping and clerical activies
[sic] occur.
After further consideration, including consultation
with counsel, a warning letter from Drover to Farr
dated January 25 was drafted and delivered to Farr. This
letter read:
In view of the statements made in your January
2, 1978 letter, we are compelled to submit the fol-
lowing in response thereto.
As set forth on page 7 of the Personnel Hand-
book, a written "warning notice" is sent to an em-
ployee whose performance has generally been unsa-
tisfactory or who had manifested an uncooperative
attitude. In your case, we point out that your so-
called "exceptional and loyal service" to Neptune is
marred by numerous instances of unexcused absen-
teeism and tardiness. Furthermore, you have dem-
onstrated a capacity for physical violence, both
actual and threatened, which shows clearly your
contempt for Neptune and its employees.
We further point out that Neptune does not share
your view that the warning notice of December 19,
1977 was sent to you as a result of your activity as
a union organizer. On the contrary, Neptune has
always maintained a posture that some union activ-
ity is expected and is certainly not prohibited, so
long as production or employees' rights are not af-
fected. However, actual or threatened physical vio-
lence or other unwarranted coercive activities by
the union or its organizers or any other person for
that matter, will not be tolerated.
In the main, your attitude is manifestly insubordi-
nate and your work performance remains unsatisfac-
tory [sic]. We are therefore serving notice that any
further instances of misconduct, insubordination or
NEPTUNE WATERBEDS, INC 1125
unsatisfactory work performance on your part will
result in your immediate discharge. A copy of this
letter is being placed in your file.
On the morning of March 23, it also appears that Farr
went to the National Labor Relations Board office to
give an affidavit and thereafter he went to the union hall
and obtained some authorization cards from a secretary
in the office.5 Upon his return to the plant he distributed
the cards to employees at the afternoon break.
About a week later, Drover, once again with the
advice of counsel, drafted a discharge letter to Farr,
dated March 28, 1978, pursuant to which Farr was dis-
charged, stating:
During the week of March 20, 1978, you were
observed by me, William H. Drover and Bruce
Markham on two occasions passing out literature
and otherwise interfering with the work of other
Neptune employees near the "rough mill" area of
the plant. Although we do not know how long you
actually were engaged in this activity in each in-
stance, you were observed for over ten (10) minutes
on March 23, 1978. Thereby compelling me to ap-
praise you that you were in violation of Neptune's
rule which prohibits any kind of solicitation in the
working areas of the plant during working hours.
When I discussed this matter with you, your atti-
tude was somewhat less than civil and, in fact, you
refused to discuss the matter at all. You started
passing out the literature and initiated conversations
with employees in work areas of the plant after the
work breaks had ended.
In view of this, we consider such activity to con-
stitute a flagrant violation of the company rules, as
you were acutely aware that you could have passed
out literature and conversed with other employees
in non-working areas of the plant.
We hasten to point out that we have given you
repeated warnings, both written and oral, to cease
and desist your insubordinate activities and to make
a concerted effort to improve your work perfor-
mance. As recently as January 25, 1978, we sent
you a letter which stated that Neptune would not
tolerate any further threats of physical violence to
its employees or other violations of company rules.
We had received a compaint from one of your
fellow employees who stated that you had threat-
ened him with physical harm if he did not vote for
the union during the next election. We also received
a complaint from one of your supervisors who
stated that he had also been threatened by you. Al-
though we had every right to terminate you at that
time, we chose instead to give you one final warn-
ing.
Since the time that letter was sent to you, you
have been absent from work for five (5) days with-
out giving us any valid explanation as to why you
had been absent, you have been late for work on
three (3) days, you saw fit to use the company
A It does not appear that the Union was actisely supporting Farr is his
organizational efforts
xerox machine without authorization, and obvious-
ly, you have failed to take any steps to improve
what we consider to be unsatisfactory performance.
Furthermore, your flagrant violations of company
rules compels us to take more stringent measures.
Under the circumstances, we have no other alter-
native but to terminate your employment effective
immediately. We are truly sorry that this alernative
is the only one left, but we feel your conduct has
forced us to this step.
Your final paycheck is enclosed with this letter.
B. Analysis and Conclusion
The General Counsel takes the position that Farr was
discharged for engaging in the organizational activity
noted above.
Respondent on the other hand contends that Farr's or-
ganizational activity was unrelated to his discharge, and
that his discharge was motivated by lawful consider-
ations, including his poor attendance record, particularly
latenesses; his capacity for violence; the unauthorized use
by Farr of Respondent's copying machine to make
copies of Farr's organizational pamphlets; and the solici-
tation of employees on company time.
Under these circumstances, it is the burden of the
General Counsel to show that the reasons advanced by
Respondent for Farr's discharge were not in fact the mo-
tivation, but were essentially pretexts designed to cloud
the real and unlawful motivation. The General Counsel
has not sustained this burden.
A review of the record shows that Farr was an active
union adherent during the Union's organizational effort
culminating in the election loss on September 7, 1977.
After this rather convincing loss, Farr returned from va-
cation to find that Respondent's manufacturing operation
was being modified, to what he felt was his financial det-
riment, from the piece rate to an hourly based system.
Thereupon, Farr decided to make another effort to or-
ganize Respondent, despite the recent election loss, and
without union participation or assistance.6
Nevertheless, Farr solicited employees on behalf of the
Union and drafted pamphlets to support the solicitation.
Having drafted the pamphlets, Farr reproduced them,
without Respondent's knowledge or consent, at Respon-
dent's expense, on Respondent's copying machine. This
was done not only without the knowledge or consent of
Respondent, but in violation of a written Employer's rule
posted above the machine limiting the use of the ma-
chine to authorized individuals, which Farr was not.
Farr then proceeded to distribute those pamphlets and
to solicit employees. While these solicitations did occur,
for the most part on breaktimes, it is undisputed that at
least some solicitation occurred on company time, for
however short a duration.
At or about this same time, Farr, apparently with a
view towards promoting another union election, took it
upon himself to obtain union authorization cards from a
secretary at the union hall, and to distribute them.
I nder the Actl. no other election in the unit could he held for a year
e. until after September 7 178
NEPTUNE WATERBEDS, NC
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All these actions occurred in late March 1978, after a
warning letter had been issued to Farr on January 25,
1978.
With respect to Farr's propensity for violence, it is un-
disputed that he had a fist fight with another employee
in July 1977. 1 have also concluded that he was the ag-
gressor in a confrontation with another employee on Jan-
uary 9, 1978. The last of these encounters arose from dif-
ferences of opinion concerning the desirability of union
representation.
With respect to the matter of attendance, it appears
that after the change to an hourly wage system in the
fall of 1978, attendance, particularly lateness, became a
problem. Some of the employees, including Farr, were
sent warning letters. His included an admonition about
attendance. While the record is insufficient to enable me
to make any meaningful comparative evaluation, it does
appear that Farr's record, particularly as to lateness in
returning from breaks, was poor. There is no contention
that issuance of the warning letter constitutes any viola-
tion of Section 8(a)(1) of the Act.7
In its totality, this case constitutes a picture of a bitter
and disenchanted union adherent; unhappy with the pos-
telection changes in Respondent's production operation,
and resentful toward his supervisor. All this is apparent
from reading Farr's letter to Respondent, dated January
2, 1978. Farr made a decision to begin an organizing
effort by himself, without union support or participation,
despite the Union's convincing loss in the election on
September 7, 1977. This, of course, he was privileged to
do, but in order to establish a violation, the General
Counsel must show that it was for engaging in such ac-
tivity that he was discharged. In this case, the General
Counsel has come up short because the reasons set out
by Respondent as the cause for discharge are factually
supported in this record, and the General Counsel has
not shown them to be deceptions to disguise any antiun-
ion motivation.
I am satisfied that Respondent is an antiunion employ-
er. It vigorously and successfully resisted a recent orga-
nizational effort by the Union, and in all likelihood was
not favorably disposed toward Farr's continued employ-
, Indeed, there are no allegations of misconduct at all in the complaint
except the 8(a)(3) and (I) contention as to Farr's discharge.
ment, but Farr's conduct provided Respondent with a
basis for his lawful termination, and Respondent availed
itself for this opportunity to rid itself of Farr. The Board
has expressed this principal in holding:
Moreover, even if we were prepared to find that
Respondent was seeking an opportunity to termi-
nate Davis because of its annoyance with the way
in which he engaged in protected activity, we
would not, in this case, find that Respondent discri-
minatorily discharged him. The mere fact that an
employer may desire to terminate an employee be-
cause he engages in unwelcome concerted activities
does not, of itself, establish the unlawfulness of a
subsequent discharge. If an employee provides an
employer with a sufficient cause for his dismissal by
engaging in conduct for which he would have been
terminated in any event, and the employer dis-
charges him for that reason, the circumstance that
the employer welcomed the opportunity to dis-
charge does not make it discriminatory and there-
fore unlawful [footnote omitted]. 8
In these circumstances, I conclude that the record
does not establish that Farr was discharged for having
engaged in union or protected activity. Accordingly, I
shall recommend that the complaint herein be dismissed.
CONCLUSION OF LAW
Respondent has not engaged in any conduct violative
of the Act.
Upon the foregoing findings of fact and conclusions of
law, I hereby issue the following recommended:
ORDER9
The complaint is dismissed in its entirety.
Klatre Holt Company, 161 NLRB 1606, 1612 (1966).
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 find-
ings, 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