Westville Homes Corp.

National Labor Relations Board - Board Decisions

Nov 10, 1971

194 N.L.R.B. 111 (N.L.R.B. 1971)

WESTVILLE HOMES CORP.
Westville Homes Corporation and Carpenters Local
82, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO. Cases 1-CA-7407 and
1-RC-11, 336
November 10, 1971
DECISION, ORDER, AND DIRECTION
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On July 8, 1971, Trial Examiner Joseph I. Nachman
issued his Decision in the above-consolidated pro-
ceeding, finding that Respondent had engaged in and
was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint. In
addition, he recommended that certain challenged
ballots be opened and counted and that an appropri-
ate certification be issued on the basis of a revised
tally of ballots. Thereafter, Respondent filed excep-
tions to the Trial Examiner's Decision and a support-
ing brief. The General Counsel filed a brief in support
of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
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 Trial Examiner and hereby orders that
Respondent, Westville Homes Corporation, West-
ville, New Hampshire, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
DIRECTION
111
It is hereby directed that the Regional Director for
Region 1 open and count the ballots of Robert J.
Johnstone, Dale Lafayette, Romaine A. Taylor, and
Steve Eccleston, and thereafter prepare and cause to
be served upon the parties a revised tally of ballots. If
Carpenters Local 82, United Brotherhood and Car-
penters and Joiners of America, AFL-CIO, has
received a majority of the valid ballots cast in the
election, the Regional Director is directed to certify it
as the exclusive bargaining agent for the employees in
the appropriate unit. If the aforesaid Union has not
received a majority of the valid votes cast in the
election, the Regional Director is directed to certify
the results of the election.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I . NACHMAN, Trial Examiner: This case tried
before me with all parties present and duly represented, at
Haverhill, Massachusetts, on April 14 and 15, 1971,
involves a complaint' pursuant to Section 10(b) of the
National Labor Relations Act, as amended (herein the
Act). The principal issues litigated were (a) was Ronald
Brenton a supervisor within the meaning of the Act; (b) if
so, did Brenton coercively interrogate employees, and (c)
was the admitted discharge of three employees on
December 7 discriminatorily motivated . Because I find that
Brenton did not coercively interrogate employees, it
becomes unnecessary to consider his supervisory status,
and with respect to the remaining issue I find and conclude,
for reasons hereafter stated, that the three discharges were
discriminatory and recommend an appropriate remedial
order.
Pursuant to the Board's order of March 2, 1971; the
Regional Director consolidated for hearing with the unfair
labor practice case the issue whether three challenged
ballots cast in a consent election held January 7, 1971,
which are determinative of the results of the election,
should be opened and counted. As these challenged ballots
were voted by the three discriminatees , and as I find that
they remained in employee status notwithstanding their
discharge, it will be recommended that in accordance with
Board procedure their ballots be opened and counted and
the results of the election certified.
Upon the entire record, including my observation of the
demeanor of the witnesses while testifying, and after due
consideration of the briefs submitted by the General
Counsel and Respondent, respectively, I make the follow-
ing:
1 Issued March 9, 1971, on a charge filed December 8, 1970. All dates
hereafter mentioned are 1970 unless otherwise indicated.
194 NLRB No. 14
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT2
A. The Unfair Labor Practices Alleged
1. Background
Westville Homes Corporation (herein Respondent or
Company) has since January 1 maintained a plant at
Westville, New Hampshire, where it is engaged in the
manufacture and sale of prefabricated homes and related
products. The plant is surrounded by a high fence which
has a gate affording the only ingress and egress to the plant
facility. A guard shack is located just inside the gate, is well
illuminated, and is always manned by a security guard. An
employee parking lot is located inside the fence enclosure.
Respondent started hiring employees in February, who
worked initially in making the plant ready, with actual
production starting about May.
In January, Plant Manager Colby promulgated a series of
"Plant Rules and Regulations," which were posted in the
plant and given to each new employee at the time of hire.
The Rule here involved reads:
7. No alcoholic beverages, or any person under the
influence of alcohol shall be allowed on the premises.
Any exception to this rule shall constitute grounds for
immediate and undisputable dismissal.
2. The facts
a. Interference, restraint, and coercion
The Union began its campaign to organize Respondent's
employees sometime in October . Colby admitted that he
was generally aware of this activity , having observed Union
Agent Burns passing out literature at the gate; knew
employees were receiving union literature in the mail; knew
employees were attending union meetings; that union cards
were circulating among the employees for signature; and
that it was quite common from November to the end of the
year for employees to discuss the Union while on company
property . Colby claimed , however, that at no time prior to
the discharges here involved did he become aware that any
particular employee was for or against the Union.
The complaint alleges that in the month of October,
Respondent , "by its supervisor and agent Ronald C.
Brenton . . . interrogated its employees concerning their
union sympathies , activities , and desires . " 3 To support this
allegation the General Counsel relies on the testimony of
Robert Johnstone, Dale Lafayette (both of whom were
allegedly discharged in violation of Section 8(a)(3) of the
Act, as hereafter detailed), and Brenton.
Johnstone testified that after attending a union meeting
2 No issue concerning the Board's jurisdiction is presented. The
complaint alleges and the answer admits facts which establish that the
Union is a labor organization and that the Company is an employer
engaged in commerce within the meaning of the Act I find those facts to
be as pleaded
3 The complaint also alleges that on December 9 Respondent by
Brenton, "kept under surveillance the meeting place, meetings and
activities of the Union . " Called as a witness by the General Counsel,
Brenton testified that he had attended a Union meeting held on or about
the date indicated. When asked by the Trial Examiner how he happened to
attend that meeting, Brenton stated, in substance, that he had been invited
to attend by employees who informed him that they were extending the
about mid-October, he had some six or seven conversations
with Brenton concerning the Union, but he gave the
substance of only one such conversation. According to
Johnstone, Brenton approached him while at work and
made some remark about Johnstone "going pretty big" for
the Union. Johnstone agreed that he was but remarked that
the Union should not be discussed on the job and that he
would talk further to Brenton during the break. Johnstone
further testified that during the break Brenton again
remarked that he (Johnstone) was "going pretty big" for the
Union, and asked what he thought about the Union.
According to Johnstone he replied that he thought the
Union would help the employees and generally indicated
his support of the Union and his intention to campaign for
it. Johnstone gave no testimony as to any other conversa-
tion he may have had with Brenton. Johnstone admitted
that his discussions with Brenton were more or less in the
nature of the pros and cons of unionism; that Brenton told
him there were two sides to the question; at no time
indicated that he was opposed to Johnstone's union
activity, or in any way sought to encourage him to abandon
such activity; and in fact stated that he (Brenton) was
neutral in the matter.
Lafayette testified that he had but one conversation with
Brenton concerning the Union .4 According to Lafayette, on
an occasion in October, Brenton approached him in the
plant and asked if he (Lafayette) was for the Union and
why, and that he replied that he was because of the
insurance and medical benefits. Lafayette admitted that in
the months of November and December the subject of the
Union was common talk in the plant; that he was friendly
with Brenton and at times had drinks with him off company
premises, that during such drinking with Brenton the pros
and cons of the Union were discussed; and that Brenton
made it clear that so far as the Union was concerned he was
neutral and would not take sides.
Brenton's testimony is substantially in accord with that
given by Johnstone and Lafayette. He testified that he
learned of the Union's activity among the employees
sometime in October, and from that time through
December the Union was a matter of general discussion in
the plant. He admitted that on more than 10 occasions he
discussed the Union with Johnstone and Lafayette, both on
and off company premises, and that the discussions
generally took the form of his asking what they thought the
Union could do for them, and that Johnstone or Lafayette
would give some response. In the case of Lafayette,
according to Brenton, the response indicated at times that
he was for the Union, and at other times that he was against
it, while in the case of Johnstone the response indicated that
he was for the Union.
invitation at the request of Union Agent Burns In his brief filed with me,
the General Counsel concedes that this evidence fails to establish that
Brenton 's attendance at the Union meeting constitutes the surveillance
prescribed by Section 8(a)(1) of the Act, and for that reason the allegations
of the complaint in that regard were withdrawn. See General Counsel's brief
pages 4 and 14 The General Counsel's action in this regard is apparently in
recognition of the Board's holding in Roxanna of Texas, Inc., 98 NLRB
1151,1161-62; and HowardAreo, Inc, 119 NLRB 1531, 1534.
4 Although Lafayette testified that he heard Brenton discuss the Union
with other employees, he did not state what was said, nor did any other
witness testify on that subject.
WESTVILLE HOMES CORP. 113
b. Conclusions as to the alleged interference,
restraint, and coercion
Upon consideration of the entire record, I find and
conclude that the General Counsel has failed to establish
by a preponderance of the evidence that the discussions
between Brenton on the one hand and Johnstone and
Lafayette on the other, constituted the interference,
restraint and coercion proscribed by Section 8(a)(1) of the
Act. I so conclude because assuming that Brenton was a
supervisor (an issue I find it unnecessary to decide in view
of my disposition of the case), the evidence shows (1) that if
he was a supervisor, he was at the very lowest echelon of
supervisions and there is no evidence that anyone higher in
the management hierarchy engaged in such conduct; (2)
although Brenton had from 6 to 14 men under him there is
no evidence that he discussed the Union with any
employees other than Johnstone and Lafayette; and (3)
Brenton drank with Johnstone and Lafayette, and that they
invited him to their union meeting, indicates that the
relationship and the tenor of discussion between them was
more in the posture of a talk between friends than
interrogation by one in managerial authority. For the
reasons indicated, and upon consideration of all the
evidence, I am convinced that Brenton was acting on his
own, and not on behalf of'management, when he discussed
the Union with Johnstone and Lafayette, and that said
employees so understood. So viewed, the discussion
between them was in no sense coercive, nor did it tend to or
have the effect of interfering with or restraining Johnstone
or Lafayette in the exercise of their rights under Section 7 of
the Act. Accordingly, I shall recommend dismissal -of
paragraph 8(a) of the complaint.5
3. The discharge of Johnstone, Lafayette, and
Taylor
Johnstone, Lafayette, and Taylor had been employed by
Respondent from August until their simultaneous discharge
on December 7. Respondent raises no contention as to the
quality of their work. Both Johnstone and Lafayette had
been active in the organizational efforts of the employees,s
but Taylor did not participate in any union activity until
after his discharge, when he signed a union card. The
organization activity of the employees resulted in the
Union filing a petition for an election with the Board's
Boston office about mid-November, and a meeting had
been scheduled at the Board's office for the afternoon of
Monday, December 7, at which time the possibility of a
consent election was to be discussed by the parties.
During the afternoon of Friday, December 4, employee
Johnstone telephoned Union Agent Burns complaining
5 As heretofore indicated, paragraph 8(b) of the complaint was
withdrawn by the General Counsel
6 Both attended union meetings and solicited employees to sign
authorization cards.
T Mayo admitted that he knew Burns and was familiar with his car. He
also admitted that he knew Johnstone and Lafayette by sight as well as
some of the other men who had been in or about Burns' car on this
occasion. Both the guard and Colby testified that when they talked the
evening of December 4, the guard did not mention the name of any
particular employee he saw in or about Burns' car, and there is no
contradictory testimony I do not regard the testimony of Johnstone and
that the Union was moving slowly in obtaining Union
representation for the men. Burns told Johnstone that he
would meet with them between 7:30 and 8:00 p.m., when
they would be having their meal break, under the floodlight
near the guards shack, and asked that Johnstone so advise
the employees on the second shift. At 7:30 Johnstone,
Lafayette, and fellow employee Winslow, in the latter's car,
drove through the plant gate to a grocery store a short
distance away, where Johnstone and Lafayette each bought
a six-pack of beer and one extra can. Winslow bought no
beer. The three men then returned to the vicinity of the
plant where Union Agent Bums' car was parked under the
floodlight at the gate entrance, and joined a group of some
10 to 12 employees in or about Burns' station wagon. While
in or about Burns' car the men ate their evening meal,
Johnstone and Lafayette each at that time consuming the
extra can of beer they previously bought at the store.
Shortly before 8 p.m., in order that they might be back at
work by that time, the men left Burns' car reentering the
plant by passing the guard shack and being checked
through by the guard. Before going through the gate
Johnstone took the six-pack of beer, which was in a paper
bag, from Winslow's car and put it on the front seat of
employee Richer White's car, with whom Johnstone rode to
and from work. The beer remained unopened in White's car
until after the men left company premises shortly after the
end of the shift at midnight. As Lafayette rode to and from
work with Winslow the six-pack of beer he purchased, also
in a paper bag, remained unopened on the back seat of the
latter's car until they left the premises after midnight. When
these cars went past the guard to reenter the plant, the latter
said nothing to them, simply checking their badge
identification numbers, although Plant Manager Colby
admitted it was the guard's duty to prevent them from
bringing intoxicants onto the premises if he suspected that
they were doing so.
At approximately 8:15 p.m., Plant Manager Colby came
through the gate returning from his evening meal. At this
time the guard told Colby that some 12-15 men had been in
or about the Union agent's car during the meal break, that
some of the men had been drinking beer, and that he
suspected that some of them bought beer with them when
they reentered the property.7 Colby then told the guard that
he wanted the cars of the men searched as they left the
plant at midnight.
At midnight the guard closed the gate to prevent cars
from going through without being searched. As the car
driven by White, with Johnstone in the front passenger seat,
approached the gate, the guard told White to open the
trunk. Colby approached Johnstone and asked what was in
the bag that was on the floor between his legs.8 Johnstone
replied that it was beer he was taking home, and asked what
Lafayette that while meeting with Burns they observed the guard talking on
the telephone as of sufficient probative value to establish that the guard
informed Colby of what he had observed or the identity of any employee
meeting with Burns in the telephone conversation referred to, as the
General Counsel seems to contend.
8 Colby testified that although the six-pack of beer was in a paper bag,
the bag was open and he could see what was in it. He also testified that he
had no reason to believe the beer had been opened, but that this made no
difference because opened or unopened the result was the same-namely a
violation of the rule
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was wrong with having unopened beer in the car for his use
only at his home. Colby responded that it violated the plant
rules and asked Johnstone for his badge number. Johnstone
supplied that information and the car was permitted to
leave. The third car in line awaiting clearance through the
gate was one driven by Winslow and in which Lafayette
was in the front passenger seat. Between Winslow and
Lafayette, on the front seat, was a paper bag which
contained the six-pack of beer Lafayette had purchased
earlier in the evening. When the car approached the gate
Colby asked what was in the bag. Lafayette replied that it
was a six-pack of beer, and that he thought there was
nothing wrong with having it in the car so long as there was
no attempt to drink it in the plant. Colby then asked
Lafayette for his name and badge number, and the car was
then permitted to pass through the gate. About the fifth car
in line was one in which employee Taylor was riding alone.
Before going to work that day Taylor had purchased a six-
pack of beer, which was in a paper bag on the back seat of
his car. After reporting for work Taylor did not go back to
his car until midnight, having eaten his evening meal in the
plant. While waiting in line, and observing that a car check
was in progress, Taylor opened the lid of his trunk and it
was left open until he reached the checkpoint. At the gate,
Colby approached and asked Taylor what was in the paper
bag, Taylor replied that it was a six-pack of beer.
Apparently because Colby knew Taylor he did not ask for
his name or badge number and permitted him to leave
without further conversation.
Johnstone, Lafayette, and Taylor all testified that they
frequently purchased beer, particularly on Friday, which
they kept in their cars until the end of their shift, doing so
because there was no place to purchase it after midnight.
Taylor in particular testified that he had been through at
least one prior trunk check conducted sometime in
November by the guard, when he had beer on the front seat
of his car which was not in a bag but open and obvious, and
that nothing was said to him about the matter.
The following Monday, December 7, Johnstone, Lafay-
ette, and Taylor reported for work dust prior to their usual
3:30 p.m. starting time. Noting that their timecards were
not in the rack, and after inquiring what had happened to
them, Production Manager Corton handed each of the men
an identical letter which stated that they were discharged
for having intoxicants in their possession on December 4,
while on company property, in violation of rule 7.9
Although Colby was firm in his position that the mere
possession of the beer on company property was a violation
of the rule, he admitted, that whether such offense,called
for discharge would depend on circumstances. He conced-
ed that in the situation here involved, "there were many
mitigating circumstances," not the least of which was the
fact that no attempt was made to consume the beer on the
premises, and for these reasons he considered over the
weekend whether or not the penalty should not be
something less than discharge, consulting with others in his
company, and with his labor counsel during that period,
9 The findings in this section are based on the credited testimony of
Johnstone, Lafayette, and Taylor and the admissions of Colby.
10 Actually, Colby's testimony on this point was somewhat
contradictory. He at first testified that he could not recall whether he
considered lesser punishment, but in answer to another question put
and finally concluded that the appropriate penalty was
discharge.l° When asked what caused him to decide on
discharge rather than some lesser punishment, Colby at
first stated that the instance on December 4, "was the third
or fourth incident with liquor on the premises, and I felt it
was necessary to take strong action," but later admitted,
that the fact that Union Agent Burns had previously
discussed rule 7 with him, and the fact that the guard had
informed him that the men had met Burns-at the gate and
were drinking beer in the latter's car did play a part in his
decision to discharge the three men, because he had "the
feeling that Mr. Burns was testing company rules ...."
Prior to the incident here involved, Respondent has had
occasion to apply Rule 7 only on three occasions; two
occurring shortly before, and one shortly after, December
4. The first such incident involved employee William
Vasselian who, on a Thursday in November (the date not""
being more precisely fixed), was on his birthday holiday.
The day was also payday. During the second shift of that
day (3:30 p.m. to midnight), Vasselian appeared at the
guard shack with a package and asked the guard for
permission to enter the plant to get his check and to put
some "booze" into the cars of fellow employees. Thinking
the reference to "booze" was a joke, the guard, although
observing that Vasselian was under the influence, permitted
him to enter the premises. Later when Vasselian left the
premises, the guard noticed that he no longer had the
package and began to suspect that the reference to "booze"
was not a joke. Accordingly, he reported the facts to Plant
Manager Colby. The following Monday, Plant Manager
Colby called Vasselian to his office and told the latter it had
been reported that when he came to the premises the
preceding Thursday, he was under the influence. Vasselian
admitted this was true. Colby then asked if on this occasion
Vasselian had delivered intoxicants to the cars of other
employees parked on company premises and Vasselian
admitted that he had done so, at the request of such
employees. Colby did not ask the identity of the employees
who had made such requests, nor did he ask the names of
the owners of the cars to which such deliveries were made.
Colby then asked if Vasselian was familiar with the rule.
Vasselian admitted that he was, that he had violated it, and
that some discipline was warranted. Colby testified that in
view of the fact that Vasselian was on his birthday holiday,
which was also payday, he suspended Vasselian for 3 days
without pay. Within a few hours after Vasselian's
suspension Union Agent Bums called upon Colby and
protested that it was unfair to suspend an employee simply
because he had beer in his car and asked Colby to
reconsider, particularly in view of the fact that other
employees were dependant on Vasselian for transportation.
However, Colby adhered to his decision.
The second such incident occurred on November 25,
when John Noury, a foreman on the second shift in
Department 2, reported for work in an intoxicated
condition, and was sent home by Plant Superintendent
Corton, who reported the facts to Plant Manager Colby. On
shortly thereafter he admitted that he had considered lesser punishment
There are several other instances in the record where Colby shifted from
positions he had theretofore taken This, and Colby's entire demeanor
while testifying, caused me to conclude that he was not testifying openly
and frankly, but as one who had something he wished to withhold.
WESTVILLE
November 27 (the intervening day being a holiday), Colby
called Noury to his office. In the discussion which followed,
Noury admitted that he had been drinking. Because Noury
was a foreman, Colby concluded that he owed the duty of
setting an example for the employees, and concluded that
under the circumstances Noury should be discharged.
The third incident referred to occurred on Friday,
December 11 (some 10 days after the incident here
involved), and concerned employee Farley. On that
occasion a trunk check was conducted by the plant guard
and by Plant Superintendent Corton for some undisclosed
reason. In the course of this check a six-pack of beer was
discovered in the trunk of Farley's car. The facts were
reported to Colby. By letter dated December 15, Colby
terminated Farley for violating Rule 7 on December 11.
The reason for the delay in discharging Farley was not
explained. After the election on January 7, Colby rehired
Farley for his old job at the same rate of pay he previously
worked.11
4. Contentions and conclusions on discharges
The critical issue on this phase of the case is Colby's
motive in discharging Johnstone, Lafayette, and Taylor.
Whether one agrees or disagrees that Colby's promulgation
and enforcement of rule 7 was good employer policy is
beside the point. Either way, an employer is entitled to
promulgate and maintain such a rule if he so desires.
Hence, if as Respondent contends, Colby's decision to
discharge the men was motivated solely by his desire to
enforce rule 7, there would be no discrimination which is
proscribed by Section 8(a)(3) of the Act. On the other hand,
if the discharges were motivated, even in part, by antiunion
considerations, then a violation of Section 8(a)(3) resulted.
Upon consideration of the entire record, I find and
conclude that in discharging the men Colby was motivated
by antiunion considerations, and hence the discharges were
unlawful. I reach this conclusion upon the totality of the
following considerations:
1. Although Colby initially stated that the facts called
for outright discharge rather than some lesser form of
discipline, because "this was the third or fourth incident
with liquor on the premises," which made it "necessary to
take strong action," he subsequently admitted that there
were many mitigating circumstances, and that what made
him decide that discharge was necessary was the fact that
some employees had been drinking beer in Union Agent
Bums' car because he thought that Burns was testing his
rules.
11 The findings as to all three incidents are based on the uncontradicted
testimony of Colby. Colby further testified that he rehired Farley because
the latter applied and he needed a man. According to Colby, the fact that
on December 15 Farley was using a borrowed car, and was unaware that
the beer was in the car, played no part in his decision to rehire Farley the
following January; the mere fact that the beer was in the car being
sufficient to constitute a violation of the rule that called for discipline.
When asked if he would rehire the three people involved in this case if they
applied, Colby answered that he could not say, but would consider them
the same as he considered Farley. The following colloquy then occurred:
Trial Examiner: Why [don't] you tell these people if they will come
back and reapply, you will restore them to the job?
The Witness. Because we became involved in this situation, [t ]hat
we are here for today.
Trial Examiner It is because of this litigation?
HOMES CORP. 115
2. Colby admitted that he delayed taking any action
against the men from Friday night, when he discovered the
beer, until Monday when he prepared the discharge letters.
Although he at first testified that he "really [didn't] recall"
whether in the interval he gave consideration to lesser
penalty than discharge, yet within 2 pages later in his
testimony, he admitted, in effect, that he did consider that
possibility because of the "many mitigating circumstances
involved l v e d .
3. I find Colby' s assertion that the Union, or even for
that matter the men, was trying to test his rule as something
less than convincing and an indication that Colby was
grasping at straws in an attempt to obscure the real
motivation for his decision to discharge the men. Although
Bums was aware of rule 7, having discussed it with Colby at
the time of the Vasselian suspension, there is not a shred of
evidence that Burns took any steps to encourage the men to
disobey the rule, or that the men took such action on their
own. Rather, the action of the men, particularly that of
Taylor, who prior to December 4 did not participate in any
union activity, and did not know of or participate in the
meeting with Burns, indicates that the men seemed to have
felt, correctly or not, that having an unopened six-pack of
beer in the car, with no attempt to consume any part of it on
company premises, was not a violation of the rule. The
evidence shows that not only on this occasion, but on a
number of prior occasions they had purchased and kept
beer in exactly the same way. Additionally, although it was
dark, and the beer could easily have been put out of the car,
none of the men made any attempt to hide or dispose of the
beer while the cars ahead of them were being searched.
4. The disparate manner in which Respondent handled
the Vasselian incident as compared to the manner in which
it handled the three employees here involved. As above set
forth Vasselian, although on his day off, admittedly
appeared at Respondent's premises in an obviously
intoxicated condition and delivered "booze" (which I
assume means hard liquor), to a fellow employee's car. For
this he was suspended without pay for 3 days, which Colby
apparently regarded as adequate punishment for the
offense. The three men here involved were not intoxicated,
made no effort to consume the beer on Respondent's
premises, but merely had it in their cars for use when they
reached home. For such an offense Colby imposed the
supreme penalty of discharge.12
5. Although I am satisfied that having found Johnstone,
Lafayette, and Taylor in the possession of beer on
December 4, Colby would have imposed some form of
discipline upon them, such as suspension without pay for
The Witness- I would say so.
Although Colby's answers indicated the possibility of a violation of Section
8(a)(4) of the Act, which had not been alleged in the complaint, the
General Counsel made no motion to amend , nor did he pursue the matter
further. Accordingly, I make no findings that the conduct referred- to
constituted a violation of the Act.
12 It is true that Noury and Farley were discharged for violation of the
Rule, but I do not regard their cases as indicative of company policy.
Noury was actually intoxicated on the job, and as a supervisor could quite
properly be held to a higher standard of conduct. The Farley incident
occurred a little more than a week after the incidents here involved, and
after the charge herein had been filed. In this posture the discharge of
Farley was simply an attempt to give the appearance of a consistent
practice. As heretofore stated Farley was rehired after about 30 days.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some period of time, I am equally convinced that had
Colby not been told that a number of employees had
recently met with Union Agent Bums, the discipline he
would have imposed on Johnstone, Lafayette, and Taylor
would not have taken the form of outright discharge.
In sum, I am convinced, and therefore find and conclude
that the motivating factor for the discharge of these three
men was the fact that Colby thought that the ones who had
beer in their possession were those who had attended the
meeting with Union Agent Burns, and this fact was seized
upon by Colby to make it appear that the reason for the
discharges was the violation of rule 7. It is true, of course,
that Taylor was not among those that attended the meeting
with Burns, but it is plain that Colby thought he had.
However, even assuming that Colby knew that Taylor had
never given aid or assistance to the Union, or that he was in
fact opposed to it, the evidence shows that Taylor was
simply caught up in the web of events, and having
discharged Johnstone and Lafayette for having beer in their
possession, to be consistent Colby had to discharge Taylor.
That Taylor's discharge under such circumstances would be
violative of the Act is clear.
Upon the foregoing findings of fact and the entire record
in the case, I state the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Johnstone, Lafayette, and Taylor on
December 7, Respondent discriminated against them in
regard to their hire or tenure of employment, discouraging
membership in a labor organization, and thereby engaged
in, and is engaging in, unfair labor practices proscribed by
Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. Except to the extent herein found, the General
Counsel failed to establish that Respondent engaged in any
unfair labor practice alleged in the complaint.
THE REMEDY
Having- found that Respondent has engaged in and is
engaging in unfair labor practices affecting commerce, it
will be recommended that it be required to cease and desist
therefrom and take certain affirmative action found
necessary and designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily dis-
charged Johnstone, Lafayette and Taylor, violations which
go to the very heart of the Act, an order requiring
Respondent to cease and desist from in any manner
infringing upon the exercise of employee rights, is
warranted. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532
(C.A. 4); California Lingerie Inc., 129 NLRB 912, 915.
13 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and recommended Order herein
Affirmatively, I shall recommend that Respondent be
required to offer Johnstone, Lafayette, and Taylor
immediate, full and unconditional reinstatement to their
former positions or, if those are not available, to
substantially, equivalent positions, without prejudice to
their seniority or other rights, privileges, or working
conditions, and make each whole for any loss of earnings
suffered by reason of the discharge, by paying to them,
respectively, a sum of money equal to the amount he would
have earned as wages from December 7, to the date
Respondent offers reinstatement as aforesaid, less any
amounts he may have earned during said period. Backpay
shall be computed in the manner set forth in F. W
Woolworth Company, 90 NLRB 289, with interest at the rate
of 6 percent per annum, as provided in Isis Plumbing &
Heating Co., 138 NLRB 716. It will also be recommended
that Respondent be required to preserve and upon request
make available to authorized agents of the Board all
records necessary or useful in determining compliance with
the Board's order, or in computing the amount of backpay
due.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:13
ORDER
Westville Homes Corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Carpenters Local 82,
United Brotherhood of Carpenters and Joiners of America,
or any other labor organization of its employees by
discriminating in any manner with respect to the hire and
tenure of employment of its employees, or any term or
condition of such employment, except to the extent that
such discrimination is permitted by the first proviso in
Section 8(a)(3) of the National Labor Relations Act, as
amended.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their, right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the National
Labor Relations Act, as amended:
(a) Make whole Robert Johnstone, Dale Lafayette, and
Romain Taylor, severally, for any loss of pay they suffered
by reason of the discrimination against them, in the manner
set forth in the section hereof entitled "The Remedy."
(b) Notify immediately Robert Johnstone, Dale Lafay-
ette, and Romani Taylor, respectively, if presently serving
in the Armed Forces of the United States, of their right to
reinstatement as provided in the Selective Service Act and
the Universal Military Training and Service Act, as-
amended, after discharge from the Armed Forces.
shall, as provided in Section 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.
WESTVILLE HOMES CORP.
(c) Preserve and, upon request, make available to
authorized agents of the National Labor Relations Board,
for examination and copying, all payroll records, social
security payment records, timecards, personnel records and
reports, and all other records necessary or useful in
determining compliance, with this Order, or in computing
the amount of backpay due, as herein provided.
(d) Post at its plant in Westville, New Hampshire, copies
of the attached notice marked "Appendix." 14 Copies of
said notice, on forms provided by the Regional Director for
Region 1, shall, after being signed by an authorized
representative, be posted as herein provided immediately
upon receipt thereof and be maintained by it for a period of
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of receipt of this Decision,
what steps it has taken to comply herewith.15
REPORT ON CHALLENGES
Having found that Johnstone, Lafayette, and Taylor were
discriminatorily discharged on December 7, under the
provisions of the Act they remained in employee status and
were entitled to vote in the election held January 7, 1971.
Accordingly, I recommend that the challenged ballots of
Johnstone, Lafayette, and Taylor, as well as that of Steve
Eccleston who was found eligible to vote in the Acting
Regional Director's Report on Challenges dated February
10, 1971, all be opened and counted, that a revised Tally of
Ballots be prepared and served upon the parties, and that
certification issued in accordance with such results.
14 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF
A UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD."
15 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified by
deleting the words "receipt of this Decision ," and substituting therefor the
words "this Order."
APPENDIX
117
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we, Westville Homes Corporation, violated
the National Labor Relations Act, and ordered us to post
this notice. We intend to carry out the order of the Board,
the judgment of any court, and abide by the following:
As the Board has found that we violated the law
when we discharged Robert J. Johnstone, Dale
Lafayette, and Romaine A. Taylor, wE wILu offer each
of them their old job back, if the same exists, and if not,
a substantially equivalent job, and we will make up to
each of them the pay they lost, together with 6 percent
interest.
WE WILL NOTIFY Robert J. Johnstone, Dale
Lafayette, and Romaine A. Taylor, if serving in the
Armed Forces of the United States, of their right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
Section 7 of the Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT in any manner interfere with, restrain,
or coerce employees in the exercise of their rights
guaranteed by Section 7 of the Act.
WESTYILLE HOMES
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office,
Bulfinch Building, 15 New Chardon Street, Boston,
Massachusetts 02114, Telephone 617-223-3300.