Stamford Water Co.

National Labor Relations Board - Board Decisions

Jan 4, 1984

268 N.L.R.B. 485 (N.L.R.B. 1984)

STAMFORD WATER CO.
Stamford Water Company and Utility Workers
Union of America, AFL-CIO. Case 39-CA-
1116
4 January 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 March 1983 Administrative Law Judge
James F. Morton issued the attached decision. The
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs, the Respondent
filed limited exceptions and both a supporting and
an answering brief, and the General Counsel filed a
brief answering the Respondent's limited excep-
tions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 1 and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
The Charging Party and the Respondent have excepted to some of
the judge's credibility findings. The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing the findings.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge: The
pleadings' put in issue whether Stamford Water Compa-
ny (herein called the Respondent), in violation of the Na-
tional Labor Relations Act (herein called the Act), (1)
assigned more onerous work to, and thereafter dis-
charged, its employee, John Kelly, in order to discour-
age its employees from supporting Utility Workers
Union of America, AFL-CIO (herein called the Union),
(2) unlawfully interrogated its employees about their sup-
port for the Union, and (3) gave them the impression
that their activities for the Union were being kept under
surveillance.
I heard the case in Fairfield, Connecticut, on January
12 and 13, 1983. Upon the entire record, including my
I The complaint issued on June 1, 1982, based on the unfair labor prac-
tice charge filed on April 19, 1982. The Respondent answered the com-
plaint on June 8, 1982.
268 NLRB No. 71
observation of the demeanor of the witnesses, and after
due consideration of the briefs filed by the General
Counsel, the Union, and the Respondent, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The pleadings established that the Respondent is a
Connecticut corporation, which supplies water to con-
sumers in Stamford and Darien, Connecticut, as a public
utility and which meets the applicable Board's jurisdic-
tional standard.
II. THE UNION'S STATUS
The uncontroverted testimony and related facts dis-
cussed in section III,A, below, established that the Union
meets the definition of a labor organization as set out in
Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
i. The Respondent's location and collective-
bargaining history
In furnishing water as a public utility, the Respondent
owns a 22-square mile watershed, operates a pumping
station and water treatment facility in North Stamford,
Connecticut, and maintains its administrative office in
Stamford-about 8 miles from the North Stamford facili-
ty. It has about 22 employees engaged in performing
water treatment functions, construction work, and serv-
ice operations. Until early 1982 they were unrepresented
for purposes of collective bargaining. The Respondent
has about 20 other employees, classified as office clerical,
supervisory, managerial personnel and others.
2. Kelly's hiring interview
Alleged discriminatee John Kelly filed an employment
application with the Respondent in 1974 after his em-
ployment as a water treatment operator with the Green-
wich Water Company was terminated. The employees of
that company were then represented by the Union. It
was not until 1977, however, that any action was taken
by the Respondent on Kelly's employment application.
In August of that year, the Respondent's superintendent
of supply, Joseph Suttile, telephoned Kelly and asked
him if he was still interested in working with the Re-
spondent. Kelly said he was. Kelly was given a tour of
the Respondent's operations. A credibility issue was
raised at the hearing before me as to what was said when
Kelly was interviewed by the Respondent's president,
James Mclnerney. A resolution should be made as the
testimony relates to alleged union animus to the Re-
spondent's knowledge of Kelly's relationship with the
Union and to one of the reasons the Respondent prof-
fered for Kelly's discharge.
According to Kelly, McInerney interviewed him for
employment and referred to the fact that he had been a
union member when he worked for the Greenwich
485
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Water Company. Kelly testified that McInerney then
said that he, McInerney, did not want any union in his
Company and that Kelly "could be dismissed" for "any
union talk."
McInerney testified that, in that interview, he made no
reference to Kelly's former membership in the Union and
never warned Kelly that he could be dismissed for union
talk. McInerney related that he told Kelly, during the
hiring interview, that he had been advised that Kelly had
been discharged by the Greenwich Water Company for
drinking on the job and that, when Kelly assured him
that he no longer drank, he hired Kelly on a 1-year pro-
bationary basis, instead of the normal 90-day period.
McInerney also testified that he makes it a practice to
inform all employees, when hiring them, that the Re-
spondent has a policy that they are not to drink on com-
pany premises. The Respondent's superintendent of
supply, Joseph Suttile, corroborated McInerney's ac-
count.
Kelly testified that he was never told by McInerney,
when hired, of any policy prohibiting drinking. He testi-
fied that he and McInerney may have discussed his dis-
charge from Greenwich Water Company but he could
not recall any details.
The General Counsel called Dominick Carlucci as a
witness. He is employed by the Respondent as a group
leader and is the Union's chief steward for the Respond-
ent's employees. (As noted below, the Union became the
certified bargaining representative in July 1982.) He testi-
fied that, when he was hired, he was asked by McIner-
ney about his membership in a Teamsters local and that
McInerney told him then that the Respondent had no
union and wanted to keep it that way. To counter this
testimony, the Respondent called Maintenance Foreman
Patrick Bemonte. He responded in the negative when
asked by the Respondent's counsel if McInerney had
ever asked him if he had been a member of a labor
union.
There are aspects of both Kelly's account of his em-
ployment interview in 1977 and of those given by McIn-
erney and Suttile which appear improbable. It seems un-
likely to me that the Respondent would, as Kelly testi-
fied, expressly warn Kelly against "union talk" when it
was the Respondent which took the initiative in contact-
ing Kelly for a job and in taking him on a tour of its op-
erations, as it did. I thus reject Kelly's account that he
was so warned. I also reject Mclnerney's account that he
gave Kelly notice that the Respondent had a policy
against drinking on the job. That would have been a
clearly superfluous remark in context. Moreover, it is un-
likely that McInerney would have made his "usual"
statement of corporate policy against drinking on its
premises to a job applicant who had just assured him
that he no longer touches liquor. Lastly, it appears that
the Respondent has no clearly defined rules as to alco-
holic beverages and it thus is unlikely that McInerney
would have articulated one to Kelly in 1977. The Re-
spondent's policy as to the use of alcohol is discussed
further below.
I find that, when Kelly was interviewed in 1977,
McInerney did refer to Kelly's union membership while
Kelly was employed by Greenwich Water Company and
that McInerney simply told Kelly that Respondent's em-
ployees are nonunion and that he, Mclnerney, would like
to keep it that way. That finding is consistent with the
events on December 2, 1981, as discussed below.
3. Kelly's work record up to the start of the union
campaign
Kelly's work performance in his first year with the
Respondent was very satisfactory. He was promoted to
chief operator. By mid-1979, however, the Respondent's
evaluation of his work had changed. Kelly was demoted
to an operator's level, was suspended without pay for 5
days for being absent from work, and was given an un-
satisfactory rating and a less-than-average wage increase.
It appears that his performance, in the Respondent's
eyes, continued at that level in the ensuing years. When
the union campaign began in the latter part of 1981,
Kelly was working as an operator.
B. The Union's Organizing Activities
In the latter part of 1981, Kelly was asked by several
coworkers who were aware of his former membership in
the Union to ask it to send a representative to talk with
them. As a result, four meetings were held by one of the
Union's national representatives and several employees,
including Kelly. At the last of those four meetings, held
on November 3, 1981, authorization cards were passed
out to the four employees. One of them, Dominick Car-
lucci, was clearly the most active employee in getting
those cards signed. Within a few days, he had secured
signed cards from about 20 of the 22 unit employees, in-
cluding Kelly.
Carlucci delivered those cards to the Union. On No-
vember 23, 1981, the Union's national representative,
Donald Madden, telephoned the Respondent's president,
James Mclnerney, and asked him to consent to an elec-
tion among the Respondent's employees. Madden ex-
plained the election procedures in general. Mclnerney
responded that the Respondent could not then agree.
On November 27, 1981, the Union filed a petition for
an election among the Respondent's employees in Case
39-RC-283. The Respondent received a copy of that pe-
tition on December 1, 1981.
C. The December 2 Meeting
The General Counsel contends that the Respondent's
president held a meeting of unit employees at which he
engaged in unlawful interrogation and created the im-
pression among them that their union activities were
being kept under surveillance.
The testimony given by witnesses called by the Gener-
al Counsel and by the Respondent are in accord as to the
essential details of a meeting conducted on December 2,
1981,2 by the Respondent's president, Mclnerney, with
2 Carlucci testified that he was told at the December 2 meeting to re-
frain from engaging in union activities. As noted elsewhere, the Respond-
ent contended in the related representation case that Carlucci was a su-
pervisor. In any event there is no allegation before me that the Respond-
ent unlawfully threatened employees.
486
STAMFORD WATER CO.
its employees. Mclnerney told them of the Union's peti-
tion and informed them that Carlucci and another indi-
vidual, Patrick Bemonte, would not be eligible to vote as
the Respondent considered them to be supervisors and
that a third employees was ineligible as a guard. Mclner-
ney told them that the Respondent did not want a union.
He ended the meeting with a remark that he did not
know too much about unions but that Kelly did. Kelly
answered that that was a long time ago.
D. Carlucci's Suspension
The Union's most active supporter, Dominick Car-
lucci, was suspended for several days in early December
1981 but lost no pay as a result. The testimony given by
witnesses called by the General Counsel and by the Re-
spondent as to the events leading up to his suspension is
confusing but not in dispute. The following account is
what I am able to glean from the record testimony. The
matter is of significance as it bears on the question as to
whether the Respondent knew of Kelly's activities for
the Union.
Carlucci, now the president of the Union's local at the
Respondent's facility, testified that he was home sick on
December 1, 1981, and that, about 3 p.m. that day, he
received a telephone call from Patrick Bemonte, the
maintenance foreman, who asked how he felt. Kelly
picked up an extension phone to interrupt their discus-
sion to tell Carlucci that another employee, Kenneth
Westcott, was complaining about them, i.e., Carlucci and
Kelly. Carlucci asked Kelly to get Westcott to the
phone. Kelly signaled Westcott to pick up the extension.
Westcott did so. Westcott then told Carlucci, in effect,
he was not performing his job properly. Westcott testi-
fied that they then had a personal agreement; Carlucci
referred to it as a heated discussion.
Westcott then telephoned the Respondent's superin-
tendent of supply, Joseph Suttile, to report his version of
that phone conversation. On December 2, Westcott and
Suttile told the Respondent's president, Mclnerney, of
Westcott's version of that call. Mclnerney summarized it
in a note he printed. Westcott signed the note and Suttile
signed it to witness Westcott's signature. That note
stated that, on December 1, Carlucci told Westcott that
Carlucci would put a lot of pressure on Westcott if he
did not go along with the Union and that he would be
"out the gate."
Mclnerney then called Carlucci to his office. Carlucci
reported there on December 2. As best as I ascertain, the
discussion between Mclnerney and Carlucci took place
after the meeting Mclnerney had on December 2 with
the unit employees, as related above. I place the discus-
sion afterwards because Carlucci had been at the em-
ployee meeting and had not then been sent home on sus-
pension.
Mclnerney told Carlucci in their December 2 discus-
sion that he was suspended for threatening Westcott for
not supporting the Union. Carlucci told McInerney, in
substance, that he never threatened Westcott, that West-
cott had claimed that Kelly and Carlucci were "ruining
the company," that Westcott was very upset that the
Union was coming in, and that Westcott was "very anti-
Union." Carlucci wanted to know why he -was suspend-
ed and why Westcott was not. Mclnerney told him that
he needed time to think about it and that, apparently
while he did so, he did not want Carlucci around. Car-
lucci stayed home for the next 2 or 3 days but lost no
pay as a result of the suspension.3
D. The Representation Case
As noted above, the Union had filed a petition for an
election among the Respondent's employees. The hearing
in that case was held on December 11 and 15, 1981. Car-
lucci and Bemonte attended that hearing in support of
the Union's claim, which was opposed by the Respond-
ent, that they were eligible voters and not supervisors. A
direction of election later issued. The election was sched-
uled for March 12, 1982. The Respondent sent a series of
letters to the unit employees urging them to vote against
the Union. The Union won and was certified on July 2,
1982.
The only union activity Kelly engaged in between the
date the petition was filed and the holding of the election
on March 12, 1982, was the discussions he had with his
coworkers about the election and his having helped
schedule union meetings and his having sat at the head
table with the Union's national representative at a union
meeting with the employees on March 11, 1982, the day
before the election was held.
The Respondent's superintendent of supply, Joseph
Suttile, gave confusing testimony as to the Respondent's
knowledge of Kelly's support for the Union. At one
point, he related that the Respondent's president told
him in November 1981 that Kelly supported the Union.
He then corrected that testimony to state that he first
heard of Kelly's support after Kelly's discharge and then
changed it to "a couple of days before Thanksgiving."
Again, when asked what his reaction was when told that
Kelly was a "union participant," Suttile said he laughed
at that idea as he did not believe that Kelly could orga-
nize himself, let alone a 20-man bargaining unit. His
answer was curious as he was not asked if it was ever
reported to him that Kelly "organized" the unit.
E. The Alleged Unlawful Assignments of More
Onerous Work to Kelly
Kelly testified that at various times in December 1981
he was assigned to perform outside maintenance duties
and that previously virtually all his worktime had been
spent in performing the inside duties of an operator. Car-
lucci's account generally corroborated that testimony.
Timesheets filled by Kelly and Carlucci confirm in good
part the testimony of the Respondent's maintenance fore-
man, Bemonte, that Kelly had spent more than a little
time doing outside maintenance duties in early 1981, long
before the advent of the Union. In any event, I am per-
suaded that Bemonte's recollection should be accepted
over the testimony of Kelly and Carlucci as it is much
more detailed whereas that of Kelly and of Carlucci was
conclusionary.
3 There is no allegation that Carlucci's suspension was violative of the
Act
487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Kelly's Discharge
1. Suttile's remark to Carlucci
About a week before the election was held, Kelly
called Carlucci and told him that he would be absent
that day because of car trouble. When Carlucci passed
that information to Suttile that day, Suttile told Carlucci
that Kelly had been taking advantage of him, Suttile, be-
cause Suttile's hands were tied as a result of the pending
election. Carlucci testified also that Suttile then said
simply that he would wait until the election was over.
That testimony is not in dispute.
2. The events of March 18-23, 1982
Kelly testified as follows as to his discharge. On
March 18, 1982, during his afternoon break, he took a
can of beer from a coworker's car, as he had done in the
past, and he brought it to the maintenance room. The
Respondent's superintendent of supply, Joseph Suttile,
approached him there and asked if he had a can of beer.
Kelly said he did. Suttile left and returned 10 minutes
later. He asked Kelly for the can of beer. Kelly had in
the meantime returned the beer can to the car from
which he had taken it. Suttile asked him to get it and he
did. Suttile took the can and left. Fifteen minutes later,
Suttile returned and with a "big smile on his face" he
told Kelly that he "got" him. Kelly asked Suttile if he
was going to "break [his] balls over a can of beer that
wasn't even opened." Suttile responded, "[Y]ou guys
have busted my balls for the last four months." Kelly
was suspended on the following day after he conceded
to the Respondent's president that he had a can of beer
in the maintenance room on the previous day. On
Monday, March 22, Kelly conducted a tour of the pump-
ing station by school children, as had been previously ar-
ranged. On March 23, he reported to the Respondent's
office in downtown Stamford. McInerney told him that
he had given the matter a great deal of thought and that,
as he felt that Kelly was going to drink the can of beer
he had in his possession on March 18, he had to termi-
nate Kelly's employment. Mclnerney told him that he
would be paid for the rest of the month and he was.
Kelly further testified that he had been told at one
time by the Respondent's superintendent of supply, Sut-
tile, that the Respondent did not allow drinking on its
premises but that, in fact, Suttile and various of the em-
ployees had consumed beer on the Respondent's prem-
ises during working hours on different occasions, with-
out incident.
Joseph Suttile testified for the Respondent as follows
respecting Kelly's discharge. On March 18, 1981, he saw
Kelly get out of a car belonging to a coworker, Jack
Dorsey. Kelly then walked "sneakily" to the pump sta-
tion and Suttile assumed that Kelly had taken a can of
beer. Suttile followed him and then asked Kelly where
he put the beer. Kelly denied having any but, when Sut-
tile persisted, Kelly produced a beer can from a hiding
place. He asked Kelly if he intended to drink it. Kelly
replied that he got it for Jack Dorsey. Suttile asked
Dorsey if the can belonged to him. Dorsey replied that it
did not. Suttile told Kelly to put the beer back where it
belonged. Suttile left. Kelly followed him and asked Sut-
tile if he was "going to have [his] ass for this." Suttile
replied that he could not help him, that he put up with
enough but "can't help [Kelly] anymore." Suttile then
telephoned the Respondent's president, McInerney, who
told him to get the can of beer and to suspend Kelly for
the rest of the day. Suttile complied and told Kelly to go
home. On the following day, Suttile and McInerney
interviewed Kelly and Dorsey and that evening they re-
viewed Kelly's "complete history" for an hour. Suttile
recommended that Kelly be fired as the March 18 inci-
dent was the "last straw."
Dorsey testified for the General Counsel and had con-
siderable difficulty recalling specific details. The informa-
tion he gave in a prehearing affidavit, which he said
must be true, supported Suttile's account, insofar as Dor-
sey's presence was involved.
The testimony given by the Respondent's president,
McInerney, insofar as it concerns what Suttile reported
to him, essentially tracks Suttile's account of that report.
McInerney testified further that, when he discharged
Kelly on March 23, he "told Kelly, based upon his con-
duct and the incidents over the past," that his employ-
ment was no longer desirable and that Kelly would be
paid until the end of April as he had earned vacation pay
and severance pay.
The only credibility issues of substance are whether
Suttile told Kelly, in the vernacular, that he (Suttile)
"got" Kelly because of what the employees did to him in
the preceding 4 months and whether Kelly was told on
March 23 that he was discharged because McInerney felt
that Kelly intended to drink the can of beer he had
brought to his workplace on March 18. 1 am not per-
suaded that the testimony offered by the General Coun-
sel, through Kelly and his coworker Dorsey, is more
credible than Suttile's and Mclnerney's accounts. Kelly's
testimony was not coordinated with Dorsey's and Dor-
sey's account was marked by his inability to recollect de-
tails. Suttile's account is more persuasive and is credited.
I am also not persuaded by the General Counsel that
McInerney told Kelly on March 23, as Kelly related,
that Kelly was discharged because McInerney believed
that Kelly intended to drink the can of beer. McInerney
did not need several days of reflection to come to that
conclusion. I credit McInerney's account of the March
23 discussion.
3. The April I meeting
On April 1, 1982, the Union's national representative,
Madden, and Kelly met with the Respondent's president,
McInerney, in an effort to persuade McInerney to rein-
state Kelly. The testimony submitted at the hearing indi-
cates that, when McInerney was asked why he dis-
charged Kelly, he responded that Kelly (1) committed
repeated insubordinate acts, including physical and
verbal threats to Suttile, (2) was in a state of "disorienta-
tion," (3) was guilty of "chronic absenteeism," (4) had
improperly used the Respondent's two-way radio, and
(5) had "possession of an alcoholic beverage on company
property."
488
STAMFORD WATER CO.
Kelly testified that it was at this April I meeting that
he had heard for the first time that McInerney offered
reasons other than the beer can incident of March 18 for
his discharge. There is no probative evidence that he was
told earlier that the Respondent based his discharge on
any other specific grounds, other than the beer can inci-
dent.
4. The Respondent's reason
Testimony bearing on the five grounds cited by Mcln-
erney is set out below under subheadings a through e.
a. Insubordination
Respecting McInerney's assertion that Kelly commit-
ted repeated acts of insubordination and misconduct,
McInerney referred to an incident that occurred on Feb-
ruary 2, 1982. The Respondent's superintendent, Suttile,
had observed Kelly sitting at a desk, rocking and barely
able to speak. Suttile asked Carlucci what was wrong.
Carlucci said that Kelly told him he had taken Tylenol
and was feeling ill. Suttile then walked over to Kelly and
asked if he was having any problems. Kelly became
upset and accused Suttile of being on his back all the
time and of assigning him to outside work to "get" him.
In making that statement, Kelly leaned toward Suttile in
a hostile manner. Suttile testified he felt threatened but it
is my observation that he had little to fear and Suttile
knew this. In any event, Suttile told Kelly to go home
and Carlucci took Kelly by the arm and led him out the
door.
Suttile testified that he reported this incident then to
McInerney and recommended that Kelly be fired. Ac-
cording to Suttile, Mclnerney told him then that he did
not want to have an unfair labor practice charge filed.
and he directed Suttile to call Kelly and to tell him that
he could return to work when he was ready to "act as a
gentleman."
McInerney testified that Suttile reported the incident
to him; Suttile informed him that Kelly had been sus-
pended and suggested that Kelly should be fired. McIn-
erney testified that he told Suttile to call Kelly and to
tell him that he could return to work if he would "be
reasonable." Suttile then telephoned Kelly. Kelly apolo-
gized for his earlier remarks. Kelly returned to work and
was paid in full for February 2.
The General Counsel submitted uncontroverted testi-
mony that, about a year previous to the February 1982
incident between Kelly and Suttile, the Respondent's
current maintenance foreman had refused to comply
with an order given by him by Suttile, that he had in
fact got "hot" at Suttile in refusing the order, that Suttile
then let him have his own way, and that no discipline re-
sulted from that incident of insubordination.
b. State of disorientation
Craig Koester, the Respondent's manager of labor re-
lations, testified that on October 2, 1981, he was with a
class of students on a tour of the Respondent's facilities
being conducted by Kelly. Koester testified that Kelly
was "extremely incoherent, somewhat in a stupor . . .
smelled of alcohol and acted accordingly." The General
Counsel sought to establish that Kelly was then undergo-
ing extensive oral surgery which impaired his ability to
speak clearly.
Koester testified that he related the above incident to
Mclnerney that same day, who then "indicated to [Koes-
ter] that he would speak to Suttile about it." McInerney
testified that he told Suttile to give Kelly a verbal warn-
ing. No evidence was submitted that Suttile gave Kelly
such a warning.
On December 11, 1981, when several employees were
at the hearing being held in the related representation
case in order to contest unit positions then being ad-
vanced by the Respondent, the Respondent's chief engi-
neer, Glen Thornhill, visited the pumproom at the North
Stamford facility. Thornhill testified that he found Kelly
in a state of disorientation on that day and that Kelly
reeked of beer. Thornhill further testified that he later
told McInerney of Kelly's condition that day and that
McInerney told him simply, "When the cat's away, the
mice will play." McInerney testified that he told Suttile
to warn Kelly. There is no evidence that any such warn-
ing issued. The General Counsel endeavored to show
that Kelly was not drinking on December 11, 1981, but
that he simply had trouble talking clearly because he was
then undergoing extensive oral surgery.
McInerney testified that, on March 19, 1982, he talked
to Koester and Thornhill about the October 2 and De-
cember 11 incidents, and asked them to tell him again of
those occurrences and to reduce them to memorandum
form. The Charging Party placed in evidence a memo-
randum signed by Koester and another by Thornhill set-
ting out their respective accounts.
Kelly, as noted earlier, conducted a tour of school
children on the day before he was discharged. He also
testified without contradiction that he regularly conduct-
ed such tours in the period December 1981 until his dis-
charge.
I accept the testimony of Koester and Thornhill and
find that Kelly on October 2 and December 11, 1981,
was "moderately intoxicated," to borrow Thornhill's
characterization as set out in the written account of the
December II incident.
c. Absenteeism
The Respondent's records show that Kelly was absent
on 26 days in 1981, principally because he had extensive
oral surgery. The Respondent has had a practice of
granting unlimited sick leave. No evidence was offered
to show that Kelly was ever warned against being absent
or late.
McInerney testified that, in discharging Kelly, he took
into account Kelly's attendance record for 1981 and that
he has no recollection of Kelly's attendance record in
1982.
d. The abuse of the two-way radio
In January 1982, Kelly uttered a "quack, quack" sound
over the two-way radio used by the Respondent. Suttile
later told him not to do that again and he has complied
with that. At that time, various unidentified employees of
489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had been making similar sounds on that
two-way radio system.
e. Possession of alcoholic beverages on company
property
The Respondent's president, McInerney, in his testimo-
ny as recounted above, last cited as the reason for
Kelly's discharge the fact that he possessed a can of beer
while on the Respondent's premises. As noted above,
Kelly had gotten this can from the car of a coworker,
Jack Dorsey; Dorsey's car was then on the Respondent's
premises. Mclnerney testified that the rule he relied on
did not apply to Dorsey in these circumstances as the
beer was inside Dorsey's car and thus not directly on the
Respondent's premises.
Various witnesses testified as to the existence of any
rule of the Respondent respecting the possession or use
of alcoholic beverages by its employees. McInerney testi-
fied that Kelly had violated the Respondent's "general
policy [that] there's no drinking on company premises"
and that another part of the rule is that an employee
"can't possess alcoholic beverages on [his] person while
performing [his] job function." McInerney related further
that each violation is handled on a case-by-case basis and
that the procedure involves a verbal warning, then a sus-
pension, and then discharge-presumably for three sepa-
rate offenses.
The overall testimony indicates that possession and
consumption of beer on the Respondent's premises is au-
thorized at various times by supervisors and that employ-
ees have consumed beer in the lunch area of the Re-
spondent's premises on a routine basis without incident.
McInerney himself, as stated above, testified that he was
advised by his manager of labor relations in October
1981 and by his executive vice president in November
1981 that Kelly reeked of beer while at work but he did
not invoke the "rule" then.
As best as I can determine from the overall evidence,
the employees knew from general conversations among
themselves that they should not drink while on the job.
The existence of such a "rule" appears to be based in the
employees' awareness that, about 10 years ago, an em-
ployee had been suspended for several days for drinking
on the job. Mclnerney's testimony indicates that the Re-
spondent has no rigid rule and that "common sense" is
the controlling consideration.
f. Discharges of other employees
The Respondent offered testimony as to its having dis-
charged employees in support of its contention that
Kelly's discharge was consistent with established proce-
dures. Thus, its president named two employees who had
been discharged for "alcoholic problems." One of those,
however, simply disappeared; the other was terminated 5
years ago for "repeated problems." I would have to
assume that the repetition was excessive as a current em-
ployee, Jack Dorsey, was twice suspended for drinking
on the job. McInerney testified that Dorsey was not dis-
charged as he is a longtime employee whereas Kelly had
worked for the Respondent only since 1977.
Mclnerney cited other witnesses of employees' having
been discharged. One of them was fired when he was
caught stealing; another was let go because he was either
unwilling or unable to do an assigned job; a third had
been an office employee who apparently was very diffi-
cult to deal with.
G. Analysis
1. Alleged interrogation and creating impression of
surveillance
The General Counsel contends that the Respondent
unlawfully interrogated employees and unlawfully cre-
ated the impression that their union activities were kept
under surveillance. I have found that, on December 2,
1982, the Respondent's president, Mclnerney, in his talk
to the unit employees, stated that he did not know too
much about the Union but that Kelly did. Kelly respond-
ed that that was a long time ago. It is apparent, from
Kelly's own comment, that he understood then that
Mclnerney had been referring to the fact that, back in
1974, Kelly had been a union member when employed
by another water utility. In that context, I find that the
evidence is insufficient to establish that the Respondent,
on December 2, unlawfully interrogated employees or
created the impression of surveillance.4
2. Alleged assignment of more onerous duties
Respecting the alleged unlawful assignment of more
onerous duties to Kelly in the winter of December 1981
and early 1982, because of his union activities, I note that
the work records then maintained by Kelly and Carlucci
tend to corroborate the Respondent's contention that
Kelly was not given more onerous duties. On that basis,
I have rejected the conclusionary testimony of Kelly and
Carlucci and thus find that the evidence fails to establish
that Kelly was assigned more onerous work to discour-
age membership in the Union.
3. Alleged discriminatory discharge
The Respondent asserts that Kelly's union activities
were minimal and that it had no knowledge thereof at
the time of his discharge. The uncontroverted evidence
is that Kelly was, next to Carlucci, the employee most
active for the Union. The Respondent's president identi-
fied Kelly on December 2, 1981, as the employee the
others should look to for more information about the
Union and, more importantly, shortly after that meeting,
Carlucci (who surfaced shortly thereafter as the Union's
witness in the representation case and is the president of
its local) told McInerney and Suttile in essence that
Kelly and he were the employees responsible for bring-
ing in the Union. I note too Suttile's admission that he
knew in the fall of 1981 that Kelly was a supporter of
the Union, notwithstanding his other testimony suggest-
ing that he had no knowledge of Kelly's views as to the
Union until after Kelly's discharge. I thus find that Kelly
was an active union supporter and that the Respondent
was aware of that fact when it discharged him.
4 American Feather Products, 248 NLRB 1102, 1111 (1980)
490
STAMFORD WATER CO.
The essential issue for me to decide is whether the
General Counsel has established by a preponderance of
the evidence that the Respondent, in discharging Kelly,
was motivated by a desire to discourage him and other
employees from supporting the Union. There is no evi-
dence of independent union animus. 5 The timing of his
discharge does not permit a ready inference to be drawn
of unlawful motivation as, if the Respondent sought to
dissuade employees by illegal means from supporting the
Union, it seemingly would have done so before they
elected the Union as their bargaining representative.
That consideration does not foreclose the inquiry as I
must consider whether the Respondent's discharge of
Kelly was retaliatory for the employees' having selected
the Union or was based on its desire to be rid of a bor-
derline employee before it entered into contract discus-
sions with the Union, i.e., whether, "but for" the Union,
Kelly would still be in its employ.
The General Counsel and the Union contend that the
Respondent seized on the beer can incident of March 18
as a pretext to conceal its unlawful motive in discharging
Kelly." That argument is premised on a finding that the
General Counsel has offered persuasive evidence that
Kelly's discharge was predicated on an unlawful motive,
in whole or in part. The evidence on that part is to some
extent equivocal. While Kelly was active for the Union
and the Respondent had knowledge of that fact, as found
above, there is no direct probative evidence of union
animus on the Respondent's part and the timing of
Kelly's discharge is, from General Counsel's viewpoint,
equivocal. The difficult aspect of this case arises from
the evidence bearing on the Respondent's reasons for dis-
charging Kelly. I have some real doubt as to the validity
of the reasons proffered by the Respondent. It cites
Kelly's attendance record as a factor but then relies only
on its records for 1981 and, in that year, his absences
were traceable primarily to the serious oral surgery per-
formed on him then. The Respondent cites two incidents
in late 1981 where Kelly apparently had been drinking.
He was not warned then or even told that Respondent
was concerned. In fact, the Respondent's president
passed one of those incidents off with a joking remark,
and, as to the other, he testified that he told the Re-
spondent's supply superintendent to issue a warning but
that was never done. The Respondent cites, as a further
basis for Kelly's discharge, an incident where Kelly ut-
tered a "quack-quack" sound over a two-way radio. The
inconsequential nature of that matter is evident from the
fact that he was simply told to stop doing that and he
5 Considerable testimony was offered at the hearing by the General
Counsel and the Union in an effort to establish that the Respondent
adopted and imposed new rules which were aimed at penalizing the em-
ployees for having supported the Union. The Respondent offered expla-
nations and evidence in support of its contention that it did not engage in
any retaliatory conduct. I note that there is no contention that the Re-
spondent, by the alleged new rules, in any way independently violated
the Act. In my judgment, the disputes on these collateral points raised
related credibility issues which, if resolved favorably to the General
Counsel, would still permit only inferences to be drawn. The proffered
evidence does not permit a clear determination. To pursue the inquiry
into those collateral matters further would serve no useful purpose.
6 See Limestone Apparel Corp., 255 NLRB 722 (1981).
complied. The March 18 beer can incident itself did not
result in the imposition of discipline pursuant to an estab-
lished progressive system of discipline, despite the vain
effort of the Respondent to show that it was. The Re-
spondent sought to demonstrate that Kelly was accorded
uniform discipline as had been given other employees
discharged previously for cause. The Respondent failed
in that regard. That is not to say that Kelly was treated
in a clearly disparate manner; rather, I could not find
any defined disciplinary practice that Respondent fol-
lowed. Lastly, I note that Suttile's denials of any knowl-
edge of the fact that Kelly was a union adherent, when I
find that he was aware of Kelly's views as to the Union,
is also a factor to be considered.
On the other hand, I am not persuaded that the Gener-
al Counsel has shown that all the reasons proffered by
the Respondent are insubstantial and pretextual. Thus,
Kelly did on February 2 make an unsupported accusa-
tion against Suttile and Carlucci had to intervene to lead
him away. A month later, Kelly again upset Suttile. Sut-
tile was obviously annoyed by the seemingly casual
excuse Kelly submitted then for not reporting to work-
a reason which led Suttile to tell Carlucci that Kelly was
taking advantage of him.
The totality of the credible evidence supports an infer-
ence that Suttile seized on Kelly's possessing a can of
beer on March 18 as the "last straw" in view of the Feb-
ruary 2 confrontation between Kelly and Suttile and
Kelly's taking an excused absence in early March, to Sut-
tile's obvious annoyance. I am not persuaded that a
stronger inference of unlawful motivation can be drawn
from the overall factual background. At most, I am
highly suspicious of the Respondent's motives but suspi-
cions alone are not a substitute for persuasive evidence.7
In sum, I find that the General Counsel has not shown
that the reasons offered by the Respondent were so pa-
tently without merit as to permit me to draw a ready in-
ference that its discharge of Kelly was motivated by un-
lawful considerations. Even were it found that this evi-
dence warranted a shifting of the burden to the Respond-
ent to proffer evidence that its discharge of Kelly was
not attributable to his union activities, that burden would
have been a relatively slight one and I would find that
the Respondent met it.
Thus, I find that the General Counsel has not persuad-
ed me by a preponderance of the credible evidence that
Kelly was discharged to discourage his union activities
or that the Respondent's discharge of Kelly unlawfully
impinged on the rights of employees under Section 7 of
the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
7 Ohio Concrete Products, 244 NLRB 1161, 1163-64 (1979).
491
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Respondent did not violate Section 8(a)(l) and
(3) of the Act in its treatment of John Kelly and did not
engage in unlawful interrogation of its employees or
create among them the impression that their activities for
the Union were being kept under surveillance and, thus,
Respondent did not violate Section 8(aX1) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended
ORDER s
The complaint is dismissed in its entirety.
* If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
492