Westville Homes Corp.

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 i n v o 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.