Lebanon Homes of New England, Inc.

LEBANON HOMES OF NEW ENGLAND 717 Lebanon Homes of New England, Inc. and Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Allied District Local Union No. 128. Case 1-CA-9918 February 26, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On October 31, 1974, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions I of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Lebanon Homes of New England, Inc., Oxford, Maine, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I In reaching his conclusion that Fred Carpentier was not a managerial employee, the Administrative Law Judge relied on United Federal Savings and Loan Association of Puerto Rico, 209 NLRB 1078 (1974). Shortly after the issuance of United Federal Savings on April 4, 1974, the Supreme Court. on April 23, 1974, handed down its decision regarding managerial employees in N L.R.B v. Bell Aerospace Company, Division of Textron Inc, 416 U.S. 267 (1974). We do not rely on United Federal Savings to reach our decision but rather on Westinghouse Broadcasting Company, Inc. (WBZ-TV), 215 NLRB No. 26 (1974), and General Dynamics Corporation v. Convair Aerospace Division, San Diego Operations, 213 NLRB 856 (1974), considered after the Supreme Court decision . Member Kennedy agrees that Carpentier is not a managerial employee and, therefore , he concurs in the result. DECISION STATEMENT OF THE CASE PAUL E. WEIL, Administrative Law Judge: On June 25, 1974, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Allied District Local Union No. 128, hereinafter called the Union, filed with the Regional Director for Region 1 of the National Labor Relations Board, hereinafter called the Board, a charge alleging that Lebanon Homes of New England, Inc., hereinafter called Respondent , violated Section 8(a)(1) and (3) of the Act by discharging an employee, Fred Carpen- tier, because of his membership in and activities on behalf of the Union. On July 24, 1974, the said Regional Director, on behalf of the Board's General Counsel, issued a complaint and notice of hearing alleging that Respondent violated Section 8(a)(1) and (3) of the Act by Carpentier's discharge. Respondent filed an answer admitting the discharge but denying any unfair labor practices. Thereaf- ter on August 23, 1974, counsel for the General Counsel filed a notice of intent to amend the complaint to allege that Respondent had interfered with, restrained, and coerced its employees by asking Carpentier why he had attended a union meeting and discharging him and telling him he was discharged for attending that meeting and by informing employees that he had discharged Carpentier for attending a union meeting. On the issues thus joined, the matter came on for hearing before me at Auburn, Maine, on September 4, 1974. The Charging Party did not attend the hearing; however, the General Counsel and Respon- dent were present and were represented by counsel. At the opening of the hearing the General Counsel moved to amend the complaint in the particulars set forth in the notice of intent to amend the complaint, which motion was granted, and Respondent filed an amendment to its answer denying the alleged content of the discussion between Respondent President Weber and Mr. Carpentier, and admitting that Mr. Weber told the employees that Carpentier had been discharged, but denying the allegation with respect to the reasons for such discharge. At the close of the hearing the parties were afforded an opportunity to argue orally on the record and General Counsel did so. A brief has been received from Respondent. Upon the entire record in the case and in consideration of the argument and brief, I make the following: FINDINGS OF FACT 1. BUSINESS OF THE EMPLOYER It is alleged and admitted that Respondent is engaged in the manufacture, sale, and distribution of mobile and modular homes in the State of Maine. Respondent annually ships goods directly from its plant in Maine to points located outside the State of Maine valued in excess of $50,000, and annually receives goods at its Maine plant directly from points outside the State of Maine valued in excess of $50,000. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 216 NLRB No. 111 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED newspaper to which Mr. Carpentier responded. He was interviewed both by Weber and Sherwood, they checked some of the work that he brought with him to display his talent, told him that he would be expected to learn to read the codes and apply them, especially with regard to plumbing and electricity, fields in which he had not theretofore worked, and hired him. Sherwood asked Carpentier what pay he expected and he said he wanted $3 an hour; Sherwood agreed with that figure before consulting with Weber. Weber informed Carpentier that all of his "management" personnel were paid on a weekly salary and that he would be paid $120 a week, which was satisfactory to Carpentier. Carpentier commenced his employment doing drafting work for Respondent. During the month that he was employed Sherwood would lay out the work for Carpentier to do, changes to be made to basic models. Carpentier would take the blueprints of the basic models out of the file, draw in the changes required by Sherwood's orders, and take copies of the blueprints to the production department where they would be built under Sherwood's supervision. Respondent admits that Carpentier had none of the attributes of a supervisor; indeed he had no one to supervise and had no supervisory authority in the pro- duction shop. He was called a management trainee; the only evidence of any job for which he was being trained was that of a design engineer. The task of a design engineer is to keep up with the changes of codes and change the basic blueprints to conform with the codes, take the orders from salesmen which required some change in the basic construction of the mobile homes, and change the blueprints to enable the production people to build according to the changed characteristics of the basic mobile homes. While there is no question that the design engineer or draftsman (and the words are used inter- changeably) affected Respondent's business in a funda- mental way, there is no evidence that he had any basic discretion in so doing. Weber testified that the design engineer had no function regarding the basic design of the product; his function was to apply to the basic design of the product such changes as the law or the customer required. In order to do so necessarily he would have had to draft in additional equipment, or construction materials, or perhaps draft them out depending on changes required which in its turn would have led to a greater or smaller cost in building the product, but he had no function to redesign the product other than within these limitations. Carpentier's work either at the time of his discharge or in future contemplation did not involve participation in the formulation, determination, or effectuation of policy with respect to employee relations matters. He had neither real nor apparent authority to speak for the Employer on a labor relations or employee relations context; he exercised no discretion and made no recommendations; he had no power to pledge the Employer's credit. Weber testified that Sherwood had exercised authority to purchase from $20 to the mobile homes were constructed reflected design features required by the building codes of various States in which the product is sold. The design engineer or draftsman was also responsible for making changes in basic designs to accommodate requirements of customers who wanted a window changed or an additional bathroom or other changes in the product they buy The Union is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES The central issue in this case is whether Carpentier was a management trainee and as such part of management in the sense that he lacks the protection of the Act under the decision of the United States Supreme Court in the Textron case.' There is no issue of fact as to what was done with Mr. Carpentier. It is admitted that on June 19, during the course of a union organizational campaign, Respondent by its president, Weber, called together all the members of its "management team" and informed them that a union meeting would take place that night and that he did not want any of them to attend the meeting or take any part in it. Nevertheless, Carpentier attended the union meeting. The following day Weber was informed of Carpentier's presence at the union meeting, called him into his office and asked him if he had attended the meeting . Carpentier at first denied and then admitted his attendance , whereup- on Weber discharged him for disobedience of his direct orders. If Carpentier is indeed a managerial employee under the Act as Respondent contends , his discharge is not unlawful inasmuch as the Supreme Court has determined in the above-cited Textron case that managerial employees are denied the protection of the Act. On the other hand, if he is not a managerial employee , as the General Counsel contends, it is clear that Respondent violated Section 8(a)(3) and (1) by his discharge and Section 8(a)(1) by the warning to him and the other employees present in the office on June 19 not to attend the meeting. From the testimony of President Weber and of Wayne Sherwood, the production manager of Respondent, and as stated by Respondent's counsel in his brief, all persons employed by the Company are divided into two groups: a management team and hourly employees. The "manage- ment team" consists of all personnel other than the production employees. All production employees, that is to say the employees who make the product of Respondent and work in the factory, are hourly paid. All other employees including the officers of Respondent, buyers, salesmen, and engineering, accounting, and clerical em- ployees work in a separate small building and are paid on a weekly salary. The business of Respondent has increased somewhat, requiring some increase in the number of employees and in the managerial hierarchy. As a result Wayne Sherwood, who had been the design engineer,2 testified that he was promoted from the position of design engineer to that of production manager but continued to do the engineering work while Respondent searched for a draftsman to take his place. An advertisement was placed in the local I N L R B v. Bell Aerospace, Co (Textron, Inc), 416 U.S 267 (1974). 2 The term design engineer as explained by Mr. Sherwood does not denote a person with a college degree in engineering but in the frame of reference of Respondent 's employment was the sole occupant of the "engineering" staff, a draftsman with the responsibility to keep up with changes in code provisions in order to assure that the blueprints from which LEBANON HOMES OF NEW ENGLAND 719 $50 worth of material for use in the drafting room, mostly having to do with blueprint machines , which he, Weber, normally approved without consultation. It appears from this testimony that not even Sherwood had any independ- ent authority to pledge any part of Respondent 's credit, at least over $20. Also there is nothing in the record that suggests any inconsistency or any conflict of interest between the design engineer's proper performance of his duties and the implementation of his right to engage in, or refrain from engaging in, concerted activities . The fact is the design engineer is clearly shown to be a technical employee who would be included or excluded from the unit of production and maintenance employees in accor- dance with normal Board handling of that issue but as to whom there is no real issue of employment status . In short, although all employees including clerks and accountants, were called managerial by Respondent, the design engineer or draftsmen had no managerial characteristics .3 As I have found that Carpentier was an employee within the meaning of the Act and not a managerial employee and accordingly is protected by the National Labor Relations Act, and as I have found that he was discharged because he attended a union meeting in violation of instructions not to do so by Respondent, I find that his discharge violates Section 8(a)(3) and (1) of the Act and that the instructions given to him interfered with, restrained, and coerced him and other employees within the meaning of the Act, in violation of Section 8(a)(1) of the Act. I further find that by informing other employees that Carpentier had been discharged because he disobeyed Weber's orders not to attend a union meeting , which is admitted by President Weber, Respondent further interfered with, restrained, and coerced employees in the exercise of their protected rights in violation of Section 8(aXl) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE of its employees, thereby discouraging membership in a labor organization and thereby engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) of the Act. 4. By the discharge of Frederick Carpentier, by warning and ordering him not to attend a union meeting, and by informing employees that Carpentier had been discharged for disobeying instructions and attending a union meeting, Respondent interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them by Section 7 of the Act in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has discharged and has failed to recall Frederick Carpentier, I shall recommend that Respondent offer him reinstatement to his former job or, if his job no longer exists, to a substantially equivalent job, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned, from the date of his discharge to the date of a valid offer of reinstatement, less net earnings during such period to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest as prescribed in his Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: The activities of the Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. Lebanon Homes of New England, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Allied District Local Union No. 128, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging and refusing to recall Frederick Carpentier, Respondent discriminated with regard to the hire and tenure and terms and conditions of employment 3 See United Federal Savings and Loan Association of Puerto Rico, 209 NLRB 1078(1974). 4 In the event no exceptions are filed as provided by Sec . 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, ORDER4 Respondent, Lebanon Homes of New England, Inc., its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Discouraging membership in and activities on behalf of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Allied District Local Union No. 128, or any other labor organization, by discriminating in regard to the wages, hours, and working conditions of its employees because of their activities on behalf of said labor organization. (b) Urging and ordering its employees not to attend union meetings, and informing employees that fellow employees had been discharged for disobeying such orders. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through repre- conclusions, and recommended Order herein , shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentatives of their own choosing, to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or to refrain from any or all such activities. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Offer to Frederick Carpentier immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent job, and make him whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and receipts, and all other records necessary to analyze the backpay due under the terms of this recommended Order. (c) Post at its plant in Oxford, Maine, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by its representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. S In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present their evidence, it has been found that we violated the National Labor Relations Act, and we have been ordered to post this notice and to keep our word about what we say: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT discourage membership in Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Allied District Local Union No. 128, or any other labor organization, by discriminatori- ly discharging any employee because of his activities on behalf of said labor organization. WE WILL NOT tell our employees not to attend union meetings, nor inform them that fellow employees had been discharged for disobeying such orders. WE WILL reinstate Frederick Carpentier to the job he formerly held or, if this job no longer exists, to a substantially equivalent job, and WE WILL make him whole for any loss of pay he may have suffered as a result of our discrimination against him by payment to him of the amount of money he lost as a result of our action. LEBANON HOMES OF NEW ENGLAND, INC.