Fuqua Homes, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 399 (N.L.R.B. 1974)

FUQUA HOMES (OHIO), INC. 399
Fuqua Homes (Ohio), Inc . and United Steelworkers of
America, AFL-CIO. Cases 9-CA-7739 and
9-1.C-9948
1' June 12, 1974
DECISION AND ORDER AND ORDER
REMANDING IN PART
requiring that the representation case be remanded
for the purpose of further hearing to take evidence
improperly excluded and for him to make rulings
and findings thereon. A remand is also necessary for
the purpose of having the Administrative Law Judge
rule on Respondent's objections to the election. The
matters summarized here are treated in detail below.
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On November 12, 1973, Administrative Law Judge
James V. Constantine issued the attached Decision in
this proceeding. Thereafter, all parties filed excep-
tions and supporting briefs.
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 attached
Decision in light of the exceptions and briefs and has
decided to affirm the Administrative Law Judge's
rulings, findings, and conclusions' only to the extent
consistent herewith.
The complaint alleges that the Respondent violated
Section 8(a)(1), (3), and (4) of the Act; the consoli-
dated representation case involves certain challenges
to ballots cast in a May 25, 1973, election and the
Respondent-Employer's objections to that election.
The Administrative Law Judge found certain of the
alleged violations, dismissed some, and failed to
consider others. He did pass on the challenges-rec-
ommending some be upheld, others overruled-but
he did not pass on the Company's objections to the
election. For the most part, the parties in effect
except to all of his findings that are adverse to their
respective positions, with the Respondent also
vigorously excepting to certain evidentiary rulings
made by him at the hearing.
With respect to the unfair labor practice aspect of
this proceeding we agree with the Administrative
Law Judge's findings that the Respondent violated
the Act through certain conduct and disagree with
his conclusions in other respects that it did not;
hence, we also make additional findings of viola-
tions. As for the representation issues, we conclude
that certain rulings made by the Administrative Law
Judge at the hearing did constitute prejudicial error
1 The Respondent excepts to the Administrative Law Judge 's failure to
enforce a subpena against the Union seeking the production of various
documents and records allegedly bearing on the Respondent's claim that
supervisory personnel improperly participated in the Union's organizing
drive and in its acquiring a showing of interest to support the petition
filed in the instant representation case . Respondent was given the
opportunity to file , and did file, a special appeal with the Board
requesting that it reverse the Administrative Law Judge 's ruling granting
a motion to quash the subpena . The Respondent 's request was denied by
the Board on September 26, 1973. The Respondent has advanced no
The Facts
The Union, after being approached by employee
Danny Allbritain, began organizing the Respon-
dent's employees in January 1973 2 and, on February
1, filed the petition in the instant representation case
seeking a unit of production and maintenance
employees. On February 28 a hearing in that case
was held and certain persons employed by the
Respondent appeared as witnesses . At that time, the
hearing was continued to March 8.
On the morning of March 7, Ronald Wehr and
James Archer told their foreman, Greg Stapleton,
that they would not be in the next day as they were
going to attend the representation case hearing as
witnesses for the Union. Stapleton raised no objec-
tion. However, shortly after noon, Production Man-
ager Andrew Garrett told the two that as the hearing
did not start until 10 a.m. they would have to work
from 7 a.m. until 9 a.m., which were regular working
hours.3 They remonstrated that they had to be off
those hours in order to talk to the Union's lawyer
with respect to their testifying at the hearing.
Garrett's response was to the effect that their absence
for the 2 hours would be unexcused. Later in the day
Stapleton called Archer, Wehr, and Carl Parsons into
his office and asked them to report in from 7 to 9 the
next morning. But they again said they could not as
they had to talk to the Union's lawyer. Stapleton's
reply was: "If you can't work, you can't." 4 Also on
March 7, Allbritain and Fred Kress told their
supervisor, Jerry Clark, that they would be out all of
the next day because of the hearing. Clark made no
comment, but later Garrett told them he would like
them to come in between 7 and 9 the next morning.
Allbritain said they would be off the whole day to
which Garrett replied: "We've got to cut this stuff
out, its interfering with our work . . . . It was cutting
down production." Archer, Wehr, Parsons,Allbrit-
ain, and Kress were absent all of March 8, talked to
persuasive reasons why we should reverse our previous ruling and it is
hereby affirmed.
2 All dates occurred in 1973.
3 It would take only about 15 minutes to travel from the Respondent's
plant to the place where the hearing was to be held.
4 Parsons testified, and his testimony is not discredited , that Stapleton
said, "All right."
5 The General Counsel contends that this statement by Garrett violated
the Act. Though the statement is some evidence of Respondent's opposition
to persons attending the hearing, we find nothing unlawful in such a
(Continued)
211 NLRB No. 46
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union counsel that morning, attended the heating,
and, except for Parsons,6 were called as witnesses.
The Alleged 8(a)(1) and (4) Violations
On March 9 the five returned to work at their
regular starting time. Early in the day, Foreman
Stapleton told Archer that there was "no s.o.b. that
was going to cause him to lose his job and that
[Archer] would be going before [Stapleton] was and
that Archer would be back in Woodville mounting
tires again." Later, as credibly testified by Wehr,
Stapleton told him with respect to those who had
attended the hearing that now he, Stapleton, and the
Company "was going to watch everything that we
did and the first little mistake they were going to
write us up for it, and after three reprimands we
would be fired." Also that day, Stapleton told
Parsons and Archer that "This was it . . . he'd be
watching for us and the first mistake we'd be out the
door," and when Archer, Wehr, Parsons, Allbritain,
and Kress went to get their checks at the plant office
later in the day, they were met by Garrett, Stapleton,
and two other supervisors and given written repri-
mands for-the forms stated-being absent the
previous day between 7 and 9 a.m. At that point,
they were told: "Two more of these and you are
out."
We clearly do not have here a situation-as the
Administrative Law Judge appears to have viewed
it-where the Respondent simply adopted and
announced on March 9 a new policy concerning
reprimands and also happened to reprimand certain
persons for absenting themselves from work between
7 and 9 a.m. the previous day. Thus, Stapleton's
comment to Wehr was that management was going
to watch closely those who attended the hearing, not
those who had been out for the 2 hours. And his
threat of close observation on the job and picking up
the "first little mistake" can hardly be explained as
an appropriate response to remedy or to prevent
absence from the job or for that matter any other
conduct that Wehr or others of the five had been
warned against at the time. Also, if management had
been solely concerned on March 9 with simply
statement where, as here, it involved no threats or promises . ascribed by
the Act
6 Insofar as the applicability of Sec 8(a)(4) is concerned Parsons'
appearing to testify places him in the same pos-tion as he would have been
had he in fact testified. See N L R B v Scrivener, d/b/a AA Electric Co, 405
US 117 (1972), N L R B v Dal-Tex Optical Company, Incorporated, 310
F.2d 58, 60-61 (C A. 5, 1962)
1 That "discrimination" under Sec 8(a)(4) embraces "all forms of
discrimination" including threats of discharge, see John Hancock Mutual
Life Insurance Company v NLRB, 191 F 2d 483 (C A D C, 1951)
8 There are unresolved issues, discussed below, concerning Archer's and
Kress' status as supervisors or employees For purposes limited to
consideration of this issue only, we assume they are supervisors Neverthe-
less, we find that the threats of discharge directed to them for giving
reprimanding these individuals for the 2-hour ab-
sences it could have done so without adopting an
entirely new reprimand policy and without stressing,
while handing out the reprimands, the three-repri-
mands-and-you're-out theme.
Here, as in the case of Stapleton's comments, there
appears an emphasis not on simply remedying a
situation but rather on putting those who attended
the hearing in fear of their jobs. Stapleton's com-
ments reflect an inappropriate reaction to the alleged
dereliction; management's reaction generally reveals
an exaggerated overreaction to that dereliction. In
sum, then, we believe it is apparent that Respon-
dent's conduct on March 9 was not intended to
remedy what it considered employee misconduct but
rather was intended in whole or in part as retaliation
against Archer, Wehr, Allbritain, Parsons, and Kress
because of their appearing as union witnesses at the
representation hearing the previous day. Conse-
quently, as such retaliatory action would clearly tend
to restrain and coerce the five with respect to
participating in the various proceedings established
by the Act to protect and give meaning to employees'
secured rights, we find that the following conduct of
Respondent violated Section 8(a)(1) and (4) of the
Act: 7
(1) Stapleton's threat to employee Wehr and his
similar threat to Archers and Parsons,9 concerning
on-the-job surveillance and possible discharge, as
such threats were made in response to the individuals
appearing as union witnesses at the representation
hearing;
(2) Stapleton's comment to Archer on March 9 to
the effect that he, Archer, would be going before
Stapleton, as such comment was, we find contrary to
the Administrative Law Judge, a clear threat of
discharge occasioned-and no other explanation was
even proffered-by Archer's appearing as a union
witness;
(3) Garrett's telling Allbritain, on handing him his
written reprimand, that "Two more of these and
you're out," as that statement was a threat of
discharge made as a result of Allbritain's having
appeared as a union witness; and
(4) Respondent's giving Archer, Wehr, Allbritain,
testimony at the Board hearing are unlawful under Sec 8(a)(I) as such
discrimination against supervisory personnel infringes on the right of rank-
and-file employees to "a congressionally provided, effective administrative
process " N L R B v Southland Paint Company, Inc, 394 F 2d 717, 720-721
(C A 5, 1968); and cases cited in In. 14 below Consequently, our findings
here insofar as they relate to Archer and Kress are limited to Sec 8(a)(1)
9 Initially, the Respondent contended Parsons was a supervisor
However, the Administrative Law Judge found him to be an employee and
the Respondent filed no specific exception to that finding We do not deem
that Respondent's general exception to all the Administrative Law Judge's
"adverse findings of fact and conclusions of law" properly raised the issue
of Parsons' supervisory status See Board's Rules and Regulations, Series 8,
as amended, Sec 102.46(b)
FUQUA HOMES (OHIO), LvC. 401
Kress, and Parsons written reprimands ostensibly for
being absent from 7 to 9 on the morning of March 8
but in fact given, we find, as part of its retaliatory
campaign against the five for having appeared as
union witnesses.10
We also find contrary to the Administrative Law
Judge that Respondent further violated Section
8(a)(1) through Stapleton's questioning Parsons on or
around March 9 concerning what he would have said
if he had been called to testify at the March 8
hearing. Such questioning was an unwarranted
intrusion by Stapleton into Parsons' union-related
activities and his right freely to participate in Board
proceedings and, in the coercive atmosphere created
by Respondent's conduct against Parsons and others
for appearing as union witnesses on behalf of the
Union, constituted, we find, interference, restraint,
and coercion under Section 8(a)(1) of the Act.
The Alleged Unlawful Discharges
Archer was discharged on April 12 and Wehr on
May 11 because, Respondent contends, of their each
having accumulated three written reprimands. The
Administrative Law Judge found Archer's discharge
to be unlawful on the ground that two of his three
reprimands were undeserved; Wehr's discharge he
found lawful because all three of his reprimands
were, he concluded, warranted. We agree with the
Respondent that the distinctions the Administrative
Law Judge draws between the two are wholly
unrealistic . However, contrary to the Respondent's
position, we find both of the discharges were
unlawful as having been motivated, at least in
substantial part, by Archer's and Wehr's appearing
as witnesses for the Union at the March 8 representa-
tion hearing.
The first of the three written reprimands accumu-
lated by the two were those handed out on March 9
assertedly because of the 7 to 9 a.m. absences
occurring the previous day. We have found these
reprimands unlawful. Consequently, as Archer's and
iu The Administrative Law Judge found Archer's reprimand to be
unlawful as it was motivated, he held, by Archer's union activities In
adopting that result, we do not adopt his reasons for so finding In reaching
his result , the Administrative Law Judge held that Archer had beer xcused
for the hours of 7 to 9 on March 8 This conclusion must rest on Stapleton's
comment at the meeting he called on March 7 of Archer, Wehr, and Parsons
at which, in answer to their statement they could nct work from 7 to 9 a m
the next day, he replied, "if you can't, you can't", or as Parsons testified, he
simply stated, "All right " But if Archer had permission, then it would seem
necessarily to follow that so did Wehr and Parsons But that was not the
Administrative Law Judge's finding, and we are not prepared to conclude
that Stapleton 's language was a clear grant of permission Yet at least it was
a rather noncommittal response which certainly seemed to suggest no
strong, firm opposition to the three being absent all of the next day, and
represented a relaxed position quite inconsistent with , and in contrast to,
Stapleton's conduct on March 9 when, in handing out the reprimands, he
threatened various persons with discharge. This change in Stapleton's
attitude does, in our view, reflect adversely upon the good faith of his
Wehr's discharges were at least in part caused by
these unlawful reprimands, the discharges were, we
find, themselves unlawful. However, a finding of
illegality here need not be left to rest solely on that
ground, for it is, we believe, evident that Respon-
dent's conduct with respect to the reprimands
subsequently given Archer" and Wehr reflects a
primary concern not with their conduct but rather
with building a case against them to justify their
eventual discharge, assertedly under the three-repri-
mand rule.
Archer's third reprimand and Wehr's second
involved a common incident on April 10 in which
they were alleged to have engaged in "horseplay"
while fetching some cardboard for installation on a
mobile home they were working on. Foreman Weber,
Stapleton's successor, testified he helped the two cut
the cardboard and roll it up and then observed them
as they carried it some distance through the plant to
their work station. He further stated that during their
trip back they engaged for the whole distance in
horseplay, culminating in one of them standing on an
end of the cardboard with the other jerking it out
from under him and causing him to fall. Throughout
the whole incident, Weber, who according to his own
testimony was only 2 or 3 feet from the two, said
nothing to them except to ask if the fallen one was
hurt, and when it was done left them. Sometime later
he went to his office, wrote up the two for engaging
in "horseplay," and then called them into the office
and handed them the written reprimands. Neither
Archer nor Wehr, according to Weber, offered any
defense to the reprimands. As for their own testimo-
ny, the two denied they had engaged in any
horseplay, but did testify that while carrying the
cardboard Archer fell when he stumbled over an
open tool chest on the floor.
The Administrative Law Judge did not resolve the
conflict in testimony. Rather, he held in effect that
whether or not Archer and Wehr engaged in
horseplay Weber believed they did, and thus Weber
was acting in good faith and not for unlawful reasons
March 9 conduct and thus provides additional support for our conclusion
that the reprimands were not given for the reason stated
ii Archer's second written reprimand was for failing to call in on March
28 that he was going to be absent that day Archer testified that he had his
sister call in for him and that she told him she had Weber, Archer's
supervisor , claimed he never received a call on that day The Administrative
Law Judge concluded that Archer's sister had indeed called in and that in
consequence Archer's second repnmand , like his first, was unwarranted We
agree with the Respondent that there is no evidence to support the
Administrative Law Judge' s conclusion that the sister called in All we
have is Archer's testimony that she said she did and that is clearly hearsay
as to the ultimate fact The sister did not testify Consequently, we do not
find that the call was made However, we reach no conclusion as to whether
or not Archer's second reprimand was justified for Weber assertedly
predicated issuance of the reprimand on the ground no call was made
directly to him. Nevertheless , he conceded that the written rule did not
require telephoning one's foreman but rather just calling in, and the
accepted practice appears to have involved just that and no more
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when he reprimanded them . We find this result
unwarranted.
Weber himself testified that throughout the period
of the above incident he was only a few feet from
Archer and Wehr. Consequently, he must have
known what was going on unless it is supposed that
he was not paying attention , a supposition quite at
variance with his testimony . In these circumstances,
we see no basis for concluding , as did the Adminis-
trative Law Judge , that whatever the facts covering
Archer's and Wehr's conduct Weber in truth thought
they were engaged in horseplay and acted according-
ly. Rather we conclude that , as he himself insisted, he
knew what was going on. Indeed , he testified that the
two were in fact "horsing" around . We are also
skeptical of this claim , for as described, Weber
observed the two closely during the incident and they
knew he was watching them. Yet he contends that,
under these circumstances , and despite their assert-
edly having been previously criticized for horseplay
on the job , they nevertheless openly engaged in such
proscribed conduct. We find the inherent probabili-
ties of the situation far more in keeping with Archer's
and Wehr's denials of misconduct than with Wehr's
claim of horseplay under his watchful eye.
Furthermore , even accepting Weber's testimony
that Archer and Wehr were engaged in horseplay
-or accepting the Administrative Law Judge's
conclusion that Weber really believed they were-we
find little to support the Respondent 's position, for in
such circumstances Weber's conduct appears patent-
ly suspect . Thus, reduced to essentials his testimony
is that he observed misconduct bordering on the
unsafe , that he did nothing and said nothing at the
time to stop it or to criticize its perpetrators, and that
he thereafter silently walked away only to hand out
the reprimands several hours later . Such behavior
does not strike us as the conduct of a foreman
particularly concerned about the alleged improper
conduct of his subordinates . On the contrary,
Weber's actions are more consistent with the conclu-
sion that he was not unduly concerned with the
horseplay-or that it in fact did not occur-but
rather that he was mainly concerned with letting a
situation develop or with creating one that would
provide a plausible justification for giving Archer
and Wehr reprimands . Accordingly, we find no basis
for concluding , as did the Administrative Law Judge,
that Weber was acting in good faith in reprimanding
the two . Quite the contrary, we find that the alleged
horseplay, whether or not it in fact occurred, was in
either case a pretextual basis for giving Archer and
Wehr a reprimand reflecting Stapleton 's threat to
employees that Respondent was going to watch
closely those who attended the hearing and on their
first little mistake give them written reprimands.
The situation with respect to Wehr's third repri-
mand involved some screws that somehow had fallen
onto the floor . According to Weber's testimony, the
screws had to be picked up before a mobile home
could be moved along the production line; the screws
presented some hazards to employees walking in the
area; he asked Wehr four times to pick up the
screws ; Wehr failed to do so ; and, 2 hours after his
last request to Wehr , employee Kerns , without being
requested to do so , picked up the screws . Shortly
thereafter, Weber presented Wehr with a written
reprimand for insubordination , suspended him, and
3 days later discharged him. Wehr, on the other
hand, testified that Weber asked him to pick up the
screws , that he said he would as soon as he finished
nailing up some siding, and that some 5 minutes later
when he was free Kerns had already done it. As for
Kerns, he testified he picked up the screws 5 to 15
minutes after they spilled and that Weber later
thanked him for doing so, adding , "That's all I
needed."
The Administrative Law Judge made no clear
credibility findings concerning the foregoing versions
of the incident where they are in conflict, but would
seem to have accepted primarily that of Weber. At
least , he concluded the reprimand was given for
insubordination . However, Weber's conduct, as he
himself describes it, again places in doubt the good
faith of his own actions . Again , as in the horseplay
incident, we are faced with a situation involving a
somewhat hazardous condition and alleged miscon-
duct by Wehr which , it is claimed , warranted giving
Wehr a written reprimand , but which, nevertheless,
was not deemed sufficiently serious to evoke any
response from Weber , according to his own testimo-
ny, to correct it for over a period of 2 hours. Once
more Weber's behavior does not strike us as the
conduct of a foreman particularly concerned about
the allegedly hazardous conditions or the alleged
misconduct of a subordinate . Instead it appears to be
that of a foreman mainly intent on being presented
with a situation that would provide him with a
plausible ground for issuing a written reprimand.
Such a conclusion is wholly consistent with Kerns'
uncontradicted testimony that after he picked up the
screws Weber thanked him, adding the comment,
"That's all I needed."
However , from our close review of the record, we
believe that Weber's testimony is almost inherently
incredible , especially in view of its conflict with
Kerns' description of events which in all essentials
accords with that of Wehr . Consequently, we are
disposed to conclude that the alleged insubordina-
tion did not occur. But it is unnecessary to go that
far, for whatever testimony is accepted it is clear, and
we so find, that the insubordination offered to justify
FUQUA HOMES (OHIO), INC. 403
the reprimand was, in our view, a pretext designed to
enable Respondent to discharge Wehr.
There remains one final, troublesome aspect to
Respondent' s defense to Archer's and Wehr's dis-
charges . It is claimed that Archer and Wehr were
discharged "pursuant to the Company's established
policy" requiring discharge on receiving three repri-
mands. However, neither Archer nor Wehr was
discharged on receipt of their third reprimand: they
were suspended , and their discharges did not follow
until several days later. At that time, the reasons
given them for their final separations were not
ascribed to the number of written reprimands they
had accumulated. Thus, with respect to Archer,
Weber testified that, after giving Archer his third
reprimand and suspending him, he thought the
matter over and discharged Archer several days later
when he came to get his paycheck. Archer's testimo-
ny, which, on this point, is not inconsistent with
Weber's and is uncontradicted, was that when he
came in for his check he was met by Weber and
Garrett 12 who discharged him saying "that they
could not have anybody fooling around with horse-
play." 13 As for Wehr's exit interview, he was simply
told that Respondent no longer needed him. Thus, in
neither case was the person told what is now claimed
to be the real reason for his discharge. This
inconsistency, though perhaps not of major dimen-
sions , is, nevertheless, under the circumstances,
further evidence that Respondent was not dealing
candidly with Archer and Wehr. Accordingly, we
find additional support for our conclusion reached
above that the reasons advanced by Respondent in
explanation of Archer and Wehr's discharges were
pretextual.
In sum we find that Archer and Wehr were not
discharged for accumulating three written repri-
mands nor for having engaged in any misconduct.
On the contrary, we believe the record fully shows,
and we so find, that they were discharged because of
their prounion activities and especially because of
their testifying as union witnesses at the March 8
representation hearing. Consequently, we further
find that the discharge of Wehr, a conceded
employee, violated Section 8(a)(1), (3), and (4) of the
Act.
Archer's situation, however, presents a problem.
The Respondent, as we have mentioned, contends
12 Garrett did not testify.
13 Of course , if that were the real reason then presumably Wehr also
should have been discharged at that time as he was, according to Weber,
guilty of the same horseplay.
14 N. L. R.B. v. Southland Paint Company, Inc., 394 F.2d 717, 720-721
(C.A. 5, 1968), finding an 8(a)(1) violation for demoting a supervisor to
rank-and-file status for supplying a Board agent with affidavits used in
opposition to the Company' s position at a Board hearing. See also King
Radio Corporation v. N.L.R.B., 398 F.2d 14 (C.A. 10, 1968), finding an
8(a)(l) violation in the discharge of a supervisor for testifying at a Board
that Archer, being a group leader, is a supervisor. If
that is so, then his discharge, insofar as it was based
solely on his union activities would not, of course, be
unlawful. The Administrative Law Judge, however,
found Archer to be an employee and, in concluding
his discharge was unlawful, rested his result in part
upon that finding. But as explained below, the
Administrative Law Judge erroneously excluded
certain testimony which the Respondent sought to
introduce in support of its claim that Archer was a
supervisor. We cannot on the record now before us,
therefore, affirm the employee finding with respect to
Archer. However, it is well established that employee
rights under the Act include "the right to have the
privileges secured by the Act vindicated through the
administrative procedures of the Board." Conse-
quently, discrimination against supervisors for testi-
fying before the Board, or otherwise cooperating in
Board proceedings, "directly infringes the right of
rank-and-file employees to a congressionally provid-
ed, effective administrative process" and thus vio-
lates Section 8(a)(1) of the Act.14 Therefore, as a
substantial factor causing Respondent to discharge
Archer was, as we have found, his participating as a
union witness at the March 8 representation hearing,
we find that, whether Archer is ultimately deter-
mined to be an employee or supervisor, his discharge
in either case violated Section 8(a)(1) of the Act and
that a full and proper remedy requires that he be
ordered reinstated to his former position of employ-
ment.15 As a result of this finding, therefore, it is
unnecessary for us to defer final determination of the
unfair labor practice allegations respecting Archer
until after further hearing on his alleged supervisory
status, is ordered below, in connection with the
representation portion of this proceeding.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent is an employer within the meaning
of Section 2(2) and is engaged in commerce as
defined in Section 2(6) and (7) of the Act.
3. By threatening James Archer with discharge
and by giving him a written reprimand for participat-
ing in a Board hearing, Respondent has engaged in
hearing and in the discharge of another for indicating a willingness to testify
in such hearing ; N.L.R.B. v. Electro Motive Mfg. Co., Inc., 389 F.2d 61 (C.A.
4, 1968), affirming a Board 8 (aXl) finding based on the discharge of a
supervisor for giving a signed statement to a Board agent that he, the
supervisor, had unlawfully threatened certain employees; and Oil City Brass
Works v. N.L.R.B., 357 F.2d 466 (C.A. 5, 1966), finding an 8(a)(1) violation
in the refusal to recall a supervisor from layoff for having testified adversely
to the company at a Board hearing.
15 N.L.R.B. v. Electra Motive Mfg. Co., supra.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By threatening employees with discharge and
by giving them written reprimands for engaging in
union activities and for participating in a Board
hearing, Respondent has engaged in conduct viola-
tive of Section 8(a)(1) and (4) of the Act.
5. By coercively interrogating employee Carl
Parsons concerning what testimony he would have
given if called to testify at a Board hearing,
Respondent has violated Section 8(a)(1) of the Act.
6. By discharging employee Ronald Wehr for
engaging in union activities and for testifying at a
Board hearing, Respondent has violated Section
8(a)(1), (3), and (4) of the Act.
7. By discharging James Archer for testifying at a
Board hearing, Respondent has violated Section
8(a)(1) of the Act.
8. The above-described unfair labor practices are
unfair labor practices within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
We adopt basically the remedy as set forth in the
Administrative Law Judge's Decision with, however,
the following additions and modification. We shall
order that Ronald Wehr, as well as James Archer, be
reinstated and made whole in the manner and to the
extent set forth for Archer in that section of his
Decision entitled "The Remedy."
In view of the Respondent's multiple violations of
the Act, including unlawful discharges, we find in
agreement with the General Counsel, but contrary to
the Administrative Law Judge, that a broad order is
fully warranted and we shall so provide.
The Representation Proceeding
As described above, the election was held on May
25, 1973. The Union received 20 votes, 16 were
against it, and 10 ballots were challenged. The
Employer filed timely objections to conduct affecting
the results of the election and on June 27, 1973, the
Regional Director issued his order directing that a
hearing be held on the issues raised by the challenges
and objections and consolidating the representation
case with the unfair labor practice case. The
Regional Director's order specified, inter alia, that
the Administrative Law Judge in his Decision make
recommendations as to the disposition of the issues
raised by the challenged ballots and the Employer's
objections. As we have already mentioned, the
Administrative Law Judge ruled on all the challenges
but in his Decision failed to give any consideration
whatsoever to the Employer's objections.
The challenged ballots: There were 10 challenged
ballots. Eight of these were the ballots of group
leaders James Archer, Stanley Greathouse, Carl
Parsons, Robert Rossiter, Mitchell Perkins, Fred
Kress, Dave Matthews, and James Reed which were
challenged by the Board agent on the ground that
their supervisory status was in issue atthe time of the
election. The ballots of Ronald Wehr and Robert
Flowers were challenged, respectively, by the Em-
ployer and the Union on the basis that they were no
longer employees on the date of the election.
The Administrative Law Judge concluded that
Matthews, Rossiter, Perkins, Kress, and Greathouse
were supervisors and thus ineligible. The Union
excepted to these conclusions with respect to Perkins
and Kress, but no exceptions were filed with respect
to the others. Accordingly, in the absence of
exceptions thereto, we adopt the Administrative Law
Judge's recommendations to sustain the challenges to
the ballots of Matthews, Rossiter, and Greathouse.
The Administrative Law Judge also recommended
that the challenge to Wehr's ballot be sustained as he
had been lawfully discharged prior to the election.
However, in view of our finding above that Wehr's
discharge was unlawful, we find that Wehr was an
employee and thus an eligible voter on the date of
the election. Accordingly, we hereby overrule the
challenge to his ballot.
The Administrative Law Judge, for various rea-
sons , concluded that the challenges to the ballots of
Archer, Parsons, Reed, and Flowers were without
merit. The Employer excepts to this conclusion with
respect to Archer; there are no exceptions to the
others. Accordingly, in the absence of such excep-
tions, we adopt the Administrative Law Judge's
recommendations that the challenges to the ballots of
Reed, Parsons, and Flowers be overruled.
There are thus at this stage of the proceeding three
challenged ballots still in dispute-those of Archer,
Kress, and Perkins-and four overruled challenged
ballots-those of Wehr, Parsons, Reed, and Flowers.
Irrespective of their designation, the ballots of the
last-named four employees cannot, if counted,
resolve or render moot the issues raised by the yet
disputed challenges or by the Employer's objections.
Consequently, a remand limited to opening and
counting those ballots would serve no useful purpose
at this time.
As to the remaining disputed challenges, Archer,
Perkins, and Kress are all group leaders which, as the
current record shows, entails their having some
responsibilities for seeing that the work of their
groups, composed of two to possible as many as nine
employees, is done properly and on time. It can be
said that in general the Employer maintains that
these group leaders exercise responsible direction
and also have certain other supervisory powers. The
FUQUA HOMES (OHIO), INC. 405
Union contends that the work of these group leaders
is essentially routine and does not involve the
exercise of any supervisory authority. As noted
previously the Administrative Law Judge found
Archer to be an employee and Perkins and Kress to
be supervisors.
With respect to Archer and Perkins, the Employer,
in support of its position that they were supervisors,
sought to place in evidence testimony by employees
in Archer's and Perkins' groups for the purpose
generally of showing what the group leaders did on
the job, what they said to employees in their groups
concerning the quality of their work, and basically
what was the relationship between the group leader
and employees in the group. The Administrative Law
Judge, however, took the position that a group
leader's supervisory status could not be established
through the testimony of an employee under him but
only through that of a superior. Consequently, upon
the Union's objections, he barred rank-and-file
employees from testifying with respect to the on-the-
job activities of Archer and Perkins. In doing so, we
find he acted erroneously and committed clear,
prejudicial error both with respect to their not being
allowed to testify as to such matters and in not
admitting their testimony to that effect into the
record. The employees were competent to testify to
what they knew about the duties of Archer and
Perkins; and there can be no doubt that such
evidence is germane with respect to the supervisory
status of an individual. Accordingly, the ruling of the
Administrative Law Judge barring such testimony
and its admission as record evidence is hereby
reversed.
The supervisory issue concerning Kress does not
involve the foregoing evidentiary ruling as the
Employer did not seek to introduce testimony
concerning Kress' supervisory status through rank-
and-file employees. Consequently, the issues raised
by the Union's exceptions to the Administrative Law
Judge's finding that Kress is a supervisor can be
decided on the record before us (except as the
evidence in the remand hearing might indirectly bear
on his status). Nevertheless, as we shall remand the
representation case for, inter alia, further hearing, we
shall permit the parties to introduce any other
evidence they may have to present concerning Kress'
status , and we shall defer passing on his status at this
time.
The Employer's objections: The Employer filed 14
numbered objections. The Administrative Law Judge
as stated , did not pass on any of them. The General
Counsel and Employer except to his failure to do so
16 See , e.g., Turner 's Express, Incorporated 189 NLRB 106, enforcement
denied 456 F.2d 289 (C.A. 4, 1972).
17 The rulings upheld certain objections made by the Union. The
and their exceptions in this regard are plainly
meritorious.
The Employer also excepts to certain rulings of the
Administrative Law Judge at the hearing which it
claims effectively and improperly prevented it from
developing its case in support of its objections. The
rulings complained about did preclude the introduc-
tion of testimony concerning the extent and type of
activity by alleged supervisors during the critical
period in support of the Union's organizing activities.
Such testimony was patently relevant16 and admissi-
ble and the Administrative Law Judge' s rulings
excluding the testimony was, we find, prejudicial
error.17
In view of all the foregoing, it is necessary that the
representation case be remanded for further hearing
before the Administrative Law Judge and for
issuance by him of a supplemental decision covering
the challenged ballot issues outlined above, and the
issues raised by all of the Employer's objections.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Fuqua Homes (Ohio), Inc., Caldwell, Ohio, its
officers, agents, successors, and assigns, shall:
1. Cease and desist:
(a) Giving employees written reprimands and
threatening them with discharge because they engage
in union or other protected concerted activity.
(b) Giving employees or supervisors written repri-
mands and threatening them with discharge because
they appear at a Board-conducted hearing for
purposes of testifying or because they testify at such
hearing.
(c) Coercively interrogating employees concerning
how they would testify at a Board hearing.
(d) Discouraging membership in or activities on
behalf of United Steelworkers of America, AFL-CIO,
or any other labor organization, by discharging
employees for engaging in protected union and other
concerted activities.
(e) Discriminating against employees by discharg-
ing them for having testified at a Board-conducted
hearing.
(f) Interfering, restraining, and coercing employees
with respect to their rights protected under the Act
by discharging supervisors for having testified at a
Board-conducted hearing.
(g) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
Administrative Law Judge did not explain on what basis he upheld the
objections and the Union offered no basis for objecting.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights of self-organization, to form, join, or assist the
United Steelworkers of America, AFL-CIO, or any
other labor organization, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from engaging in all such activities.
2. Take the following affirmative action which
the Board finds is necessary to effectuate the policies
of the Act:
(a) Offer Ronald Wehr and James Archer immedi-
ate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent ones, without prejudice to their seniority
or other rights or privileges enjoyed by them, and
make them whole for any loss of pay they may have
suffered by reason of Respondent's discrimination
against them, with interest at the rate of 6 percent, as
provided in the sections of the Board's and Adminis-
trative Law Judge's Decisions entitled "The Reme-
dy.„
(b) Preserve and, upon reasonable request, make
available to the Board or its agents, for examination
and copying, all payroll records, personnel records
and reports, and all other records necessary to
analyze the amount, if any, of backpay due under the
terms of this Order.
(c) Post at its premises at Caldwell, Ohio, copies of
the attached notice marked "Appendix." 18 Copies of
said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter,in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 9, in
writing, within 20 days from the receipt of this
Decision, what steps the Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the record in this
consolidated proceeding insofar as it relates to Case
9-RC-9948 be, and it hereby is, reopened, and that a
further hearing be held before Administrative Law
Judge James V. Constantine for the purpose of
receiving additional evidence relevant to the supervi-
sory status of James Archer and Mitchell Perkins
and to Respondent-Employer's objections.
IT IS FURTHER ORDERED that this proceeding be,
and it hereby is, remanded to the Regional Director
for Region 9 for the purpose of arranging such.
further hearing, and that the said Regional Director
be, and he hereby is, authorized to issue notice
thereof.
IT IS FURTHER ORDERED that, upon the conclusion
of the supplemental hearing, the Administrative Law
Judge shall prepare for Case 9-RC-9948 and serve
on the parties a supplemental decision therein
containing findings of fact, conclusions of law, and
recommendations concerning the supervisory status
of Archer and Perkins and the merits of Respondent-
E_mployer's objections, and that following the service
of such supplemental decision upon the parties, the
provisions of Section 102.46 of the Board's Rules and
Regulations, Series 8, as amended, shall be applica-
ble.
18 In the event that this 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
We hereby notify our employees that:
WE WILL NOT give our employees written
reprimands or threaten them with discharge
because they engage in union or other protected
concerted activities.
WE WILL NOT interrogate employees concern-
ing how they would testify at a Board hearing.
WE WILL NOT discourage membership in or
activities on behalf of the United Steelworkers of
America, AFL-CIO, or any other labor organiza-
tion, by discharging employees for engaging in
protected union and other concerted activities.
WE WILL NOT give employees or supervisors
written reprimands or threaten them with dis-
charge or discharge them because they appear at
hearings held by the National Labor Relations
Board for purposes of testifying, or because they
do testify, at such hearing.
WE WILL NOT interfere with, restrain, or coerce
employees with respect to their rights protected
under the Act by giving supervisors written
reprimands or by threatening them with discharge
or by discharging them because they testify at
Board hearings.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights of self-organization, to
form, join, or assist the United Steelworkers of
America, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representa-
FUQUA HOMES (OHIO), INC. 407
tives of their own choosing , to engage in concert-
ed activities for the purpose of collective bargain-
ing or other mutual aid or protection , or to refrain
from engaging in all such activities.
WE WILL offer James Archer and Ronald Wehr
immediate and full reinstatement to their former
positions or, if such positions no longer exist, to
substantially equivalent ones , without prejudice
to their seniority and other rights and privileges
enjoyed by them , and make them whole for any
loss of pay they may have suffered by reason of
their discharges , with interest at the rate of 6
percent per annum.
All our employees are free to become , remain, or
refuse to become or remain members of said United
Steelworkers of America , AFL-CIO, or any other
labor organization.
FUQUA HOMES (OHIO),
INC.
(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 compli-
ance with its provisions may be directed to the
Board 's Office , Federal Office Building , Room 2407,
550 Main Street, Cincinnati, Ohio 45202 , Telephone
513-684-3686.
DECISION
STATEMENT OF THE CASE
JAMES V . CONSTANTINE , Administrative Law Judge: This
is a consolidated case consisting of an unfair labor practice
case and a representation case brought under the National
Labor Relations Act, 29 U.S.C. 150 , et seq. In the unfair
labor practice proceeding , Case 9-CA-7739, a charge was
filed on April 30, and an amended charge on May 21, 1973,
against Fuqua Homes (Ohio), Inc., herein called the
Respondent or the Employer, by United Steelworkers of
America , AFL-CIO, herein called the Union. Upon such
charge and amended charge the General Counsel of the
National Labor Relations Board , by the Acting Regional
Director of Region 9 (Cincinnati, Ohio), issued a com-
plaint on June 27, 1973, alleging in substance that
Respondent committed unfair labor practices violating
Section 8(a)(1), (3), and (4) and affecting commerce as
defined in Section 2(6) and (7) of the National Labor
Relations Act, herein called the Act . Respondent has
answered admitting some facts but denying that it
committed any unfair labor practices.
In the representation case, 9-RC-9948 , the Union filed
with the Board a petition to be certified as the bargaining
representative of the Employer's employees in a specified
unit . At the election held on May 25 , 1973 , the ballots of 10
voters were challenged. In addition, the Employer filed
timely objections to the conduct of the election and to
conduct affecting the results of the election . On June 27,
1973, the Acting Regional Director directed a hearing on
the issues raised by said challenges and objections before
an Administrative Law Judge and a decision thereon by
said Administrative Law Judge . On said June 27, said
Acting Regional Director further ordered that the hearing
on the above unfair labor practice case be consolidated
with the hearing on said challenges and objections; and he
also ordered that after said Administrative Law Judge has
issued his decision that the representation case be
transferred to and conducted before the Board.
Pursuant to due notice this consolidated case came on to
be heard, and was tried before me , at Cambridge, Ohio, on
August 28 , 29, and 30 , 1973. All parties were represented at
and participated in the trial and had full opportunity to
introduce evidence , examine and cross-examine witnesses,
file briefs , and present oral argument . Briefs have been
received from all parties.
In the unfair labor practice case the issues are:
1. Whether Respondent threatened employees with
discharge for engaging in union activity.
2. Whether Respondent gave written reprimands to,
and also discharged , James Archer and Ronald L. Wehr
for giving testimony in a Board proceeding.
3. Whether James Archer is an employee or a supervi-
sor; and, if an employee , whether he was discharged
lawfully or for his union sympathies , membership, and
activities.
4. Whether Ronald Wehr is an employee or a supervi-
sor; and , if an employee , whether he was discharged
lawfully or for his union sympathies , membership, and
activities.
In the representation case the issues are:
1. Whether the challenges to the 10 voters, or any of
them , are meritorious.
2. Whether the objections , or any of them , should be
sustained.
Upon the entire record in this case , and from my
observation of the demeanor of the witnesses , I make the
following:
FINDINGS OF FACT
I. AS TO JURISDICTION
Respondent, an Ohio corporation , is engaged at Cald-
well, Ohio, in manufacturing mobile homes. During the
year preceding the issuance of the complaint herein, a
representative period, it purchased goods and products
valued in excess of $50 ,000 directly from points outside the
State . I find that Respondent is an employer within the
meaning of Section 2(2) and is engaged in commerce as
defined in Section 2 (6) and (7) of the Act, and that it will
effectuate the purposes of the Act to assert jurisdiction
herein.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material has been , a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
1. The discharge of Ronald L. Wehr
Ronald Wehr was hired by Respondent about September
10, 1972, as a metalsmith in its metal department. His
supervisor at that time was Greg Stapleton. Later one
Weber replaced Stapleton as his supervisor. In late January
1973, he aided the Union, "as an organizer for" it, by
passing out stickers, bumper stickers, pocket-savers,
pencils , and badges, and by wearing stickers , badges, and
pocket-savers on his clothes. At the time the Union was
conducting an organizing drive at Respondent's plant.
About January 22, 1973, in the evening, he attended a
union organizational meeting held in Caldwell, at which he
signed a union card. He also invited a couple of employees
at the plant to this meeting . In addition, he attended all
subsequent meetings , about five or six in all.
On February 22, 1973, he reported that he would be off
the next day to Greg Stapleton, his foreman, telling the
latter it became necessary as he was to attend an NLRB
"labor relations hearing for the Union" on February 23. As
Stapleton said nothing in response , Wehr did go to that
hearing . Wehr also attended another NLRB hearing about
March 8, this being a continuation of that on February 23.
On March 7 he also reported off for the next day to
Stapleton, but the latter said nothing. It was stipulated that
these were representation hearings held in Case
9-RC-9948.
In the afternoon of March 7, Production Manager
Andrew Garrett told Wehr that Wehr would have to work
from 7 a.m. to 9 a .m. the next day. But Wehr replied that,
as he had to "meet with my lawyer that morning before the
hearing" he would not be able to work at all on March 8.
Garrett insisted that if Wehr failed to work from 7 to 9 a.m.
"it would be an unexcused absence." Wehr did not work at
all on March 8, but, instead, went to the hearing that day
and testified as a witness for the Union. It was held at 10
a.m. in Caldwell, about three-fourths of a mile from the
plant.
About March 9, 1973, when Wehr went to get his check
that evening he found that his was missing . Upon asking
Foreman Stapleton for its whereabouts the latter replied
that Wehr would have to go to Stapleton's office to receive
it. So Wehr went to that office. Thereupon Stapleton
handed Wehr a written reprimand "for an unexcused
absence" on March 8 from 7 to 9 a.m., and requested Wehr
to sign it . Wehr then signed it . (See G. C. Exh. 2.) Stapleton
also told Wehr on this occasion that "the company and
[Stapleton] were out to get everyone of us that went to the
hearing . . . . They was going to watch everything we did,
and the first little mistake they were going to write us up
for it, and after three reprimands we would be fired." Prior
I In his affidavit to the General Counsel of the Board Wehr asserted that
Weber did not instruct him to pick up the screws, but Wehr on the stand
to this Wehr had never received a reprimand while working
for Respondent. On the other hand he had been compli-
mented by his superiors for "doing real good work."
About April 10, 1973, Wehr, while carrying heavy
cardboard about 12 feet long with James Archer, bumped
into a scaffold and tripped over a toolbox which lay in his
path. About quitting time that dayForeman Bobby Weber
handed Wehr another written reprimand for horseplay
causing this bumping and falling. Wehr protested that it
was not horseplay because he hurt his back in this incident
and had to consult a doctor therefor.
On May 8, 1973, Foreman Weber "started riding us as
soon as we got to work . . . . He rode us all that morning."
Shortly after luncheon that day the leg of the table on
which Wehr had placed his tools fell off, so that the table
fell and some screws and his tools fell to the floor.
Although he picked up the tools he "paid no attention to"
the screws "because there's always screws and nails and
everything laying on the floor. So I just went right back to
work." Soon Weber "came around" and directed Wehr "to
pick up those screws." As Wehr "was right in the middle of
nailing a piece of siding [and] standing up on the table," he
replied that he would comply with this order as soon as he
completed nailing the siding. About 3 or 4 minutes later
Wehr observed Kerns and Martin sweeping the floor, so
that said screws had thus been removed by the time Wehr
finished his task. Wehr testified that "they [always] sweep
the floor before they move every coach," and that a coach
was moved past his work station very soon after his screws
were swept up.'
Soon Foreman Weber asked Wehr to come to Weber's
office. Upon arriving there Wehr was presented with a
written reprimand by Weber "for not following instruc-
tions . . . disobeying orders . . . [for not] picking those
screws up." Thereupon Weber suspended Wehr "until
further notice and to come back Friday to pick up" Wehr's
paycheck. On Friday, May 11, when Wehr went to the
plant for his check, production manager Garrett and
Foreman Weber informed him that they no longer needed
him at Fuqua Homes. In a few minutes he was handed his
final paychecks.
2. The discharge of James Archer
James Archer started working for Respondent on
February 7, 1972, as a metalsmith in its metal department,
under Foreman Curt McDaniels. Later he was transferred
to final finish under the same foreman. Sometime later
Greg Stapleton, and after that Bob Weber, became his
foreman, in the same department. From final finish he was
promoted to group leader while Stapleton was his foreman,
and was so informed by Stapleton and Production
Manager Bob Amidon. They informed him that, as group
leader, his duties involved "to make sure everything was
done, and it was to have a good looking coach when it
come out, and to see the people were busy, and to help out
when I was needed." As such group leader he also received
a wage increase of 10 cents an hour.
Both before and after he became a group leader Archer
testified , as recited in this paragraph , that Weber did tell him to pick up said
screws from the floor.
FUQUA HOMES (OHIO), INC. 409
punched a timeclock and was paid by the hour. In
addition, as such leader he devoted about 95 percent of his
work day to "physical work activities" and 5 percent to
"checking on materials and stuff like that." When an
employee was absent Archer, as group leader, "filled in for
him." When engaged in "physical work" as group leader
Archer daily used staple guns , hammers, nails sets, saws,
and drills, just as other employees used these same tools.
But as group leader Archer lacked authority to hire or fire,
or to recommend the same , or to transfer or recommend
the transfer of an employee from one department to
another, or to discipline or recommend the discipline of an
employee. Further, both Archer and the employees knew
"what to do on a particular product" from a "production
card" attached to the front of it, but he had no part in
preparing said card.
About January 22, 1973, Archer attended a union
meeting, and went to an additional four or five of them. In
addition, he solicited employees to come to said meetings
and gave out union pocket protectors, bumper stickers,
pencils, pins, and stickers to employees.
About March 7, 1973, Archer informed Production
Manager Andrew Garrett that he had to be off the next
day "because we had a hearing with the Union and the
Labor Relations Board." Later that day Garrett instructed
Archer to work from 7 to 9 a.m. on March 8 because "they
needed [Archer] to work." Archer replied that he "had to
go talk with the union lawyer" in the morning of March 8.
Still later on March 7 Attorney Miles , in the presence of
other officials of Respondent, interrogated Archer as to his
duties as a group leader . Then just before quitting time on
March 7 Foreman Greg Stapleton asked Archer, Wehr,
and Parsons to work the next day but they replied they
were unable to do so "because we had to meet with our
lawyer the next day." Stapleton then said, "If you can't
work, you can't." On March 8 Archer testified on behalf of
the Union in the Board hearing. Previously that morning
about 7:30 a.m. he met with Union Attorney Jaffey and
Union Organizers Weaver and Worthington.
About 7:30 a.m. on March 9 Foreman Greg Stapleton
told Archer that "there was no s.o.b. that was going to
cause him to lose his job and that [Archer ] would be going
before [Stapleton] was, and that [Archer] would be back in
Woodsville mounting tires again." At quitting time the
same day, i.e., 3:30 p.m., Archer was told to go to his
foreman's office to receive his paycheck. When he arrived
there he was handed a written reprimand by Foreman
Stapleton in the presence of two other foremen and
Production Manager Garrett. Prior thereto Archer had
never received a reprimand.
On March 19, 1973, Archer was ill. So he told his sister to
call in for him that he would be out that day on account of
sickness . She, as well as his mother, had sometimes so
called in for him in the past. However, Foreman Bob
Weber gave Archer a reprimand because Archer had not
called in and that "it would be an unexcused absence." But
Archer replied that he had called in and would not sign the
reprimand. Nevertheless he signed it "so [he] could get out
of there." This was Archer's second reprimand.
At quitting time on April 10, 1973, Archer received still
another reprimand, this time "for horseplay during
working hours . Danger to other employees ." (See Resp.
Exh. 2.) Circumstances surrounding this incident are
recited above in the testimony of Ronald Wehr , and need
not be repeated here as Archer's version substantially
corresponds to that of Wehr. Archer denies he engaged in
any horseplay. In addition Foreman Weber informed
Archer that Archer was suspended until further notice and
that if Archer was not called by Friday to come in to pick
up his paychecks. But at or about 6:30 p.m. on Thursday
Weber asked Archer to come to the plant. When he arrived
there Archer was confronted by Weber and Production
Manager Andrew Garrett, both of whom said "they
couldn't have anybody fooling around with horseplay and
that they didn't want to hold [Archer] back from
something else better ." On this occasion Archer was
discharged by Foreman Weber.
On cross-examination Archer admitted that he knew that
engaging in horseplay could result in his being terminated
and that "failure to call in was a violation of company
rules." He also testified that the NLRB hearing started at
10 a.m. on March 8, and that he could drive to said hearing
in "10-15 minutes."
3. Alleged other violations of Section 8(a)(1) of
the Act
In addition to the pertinent testimony of Archer and
Wehr, set forth above, evidence as recited below was
introduced by the General Counsel on this issue.
Danny Allbritain was hired by Respondent in March or
April 1972, as a plumber under Supervisor Melvin Thomas.
He left Respondent's employ in April 1973. On March 9,
1973, the day after he testified in a Board representation
proceeding, Allbritain and employee Fred Kress inquired
at the office why they did not receive their paychecks.
Foremen Jerry Clark and Greg Stapleton and Production
Manager Andrew Garrett, to whom said question was
directed, had them sign a reprimand and then handed them
their paychecks and admonished them "two more of these
[reprimands] and you're out." At the same time Allbritain
was handed a written reprimand for "not reporting to work
from 7:00 a.m. until 9:00 a.m. March 8, 1973." (See G.C.
Exh. 4.)
In the forenoon of March 7, 1973, Allbritain and Fred
Kress informed their supervisor, Jerry Clark, that they
would not work the next day. Nothing was said by Clark at
the time. At or about 3:30 p.m. on said March 7, Clark and
Production Manager Andrew Garrett told Allbritain and
Kress, "We'd like for you to come tomorrow . . . from 7
a.m. to 9 a.m." When Allbritain replied that he had
"reported off for the whole day" of March 8, Garrett
remarked, "We've got to cut this stuff out, it's interfering
with our work . . . . It was cutting down production."
Allbritain also attended the previous Board hearing in the
same case and took the day off for that purpose, but he did
not testify then. Yet he was not reprimanded for not
working that day.
Further, Allbritain explained that an employee who
intended not to work on any day was "supposed to call in
that morning before, I believe it was 7:00 o'clock. They
had it on the wall." He also stated that the hearing for
March 8 was scheduled to open at 10 a.m., and that he
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could reach it in 3 or 4 minutes from the plant "if you don't
go home and clean up." Finally, he admitted that he told
Garrett on March 7 that he was going to take off the entire
day on March 8 and "didn't care what Mr. Garrett said at
all."
Carl Parsons was hired by Respondent in the first week
of August 1972, to build inwalls under Supervisor Melvin
Thomas. An adequate summary of his testimony follows.
Later he was transferred to the job of a carpet layer. On
March 7, 1973, Parsons reported to Greg Stapleton that
Parsons would be off on the next day. Stapleton replied
"All right." Later Stapleton told Parsons that Parsons
would have to work from 7 a.m. to 9 a.m. on March 8 and
that he "could go from there to court." Parsons protested
that he "had to be up there early in the morning . . . to
meet with the attorney." And Parsons did meet with
Attorney Jaffey the morning of the NLRB hearing.
Although Parsons attended the hearing at the Union's
request he did not testify at it.
On March 9, Stapleton asked Parsons if he had been
called as a witness what Parsons would have testified on
the stand. Parsons replied, "I would just tell the truth."
Later that day Stapleton told Parsons, Archer, and Jim
Lawrence, "This was it . . . [I'd] be watching for [you] and
that the first mistake, [you] was out the door." Still later
that day, when Parsons went to pick up his paycheck,
Stapleton served him with a written reprimand for being
absent from 7 to 9 a.m. on March 8. It is worded like
General Counsel's Exhibit 4. Then Stapleton added that
Parsons would be fired "after three" reprimands.
B. Respondent's Defense
From January 1972 until late August 1973, Robert E.
Weber worked for Respondent. A conspectus of his
testimony follows. For some time he served as a group
leader . As such group leader he "had two other men
under" him and "was a leader for the men" who were
under him . Additionally he "had the right to correct .. .
and also had the authority to write reprimands"; he
assigned work; he "transferred employees from one job to
another" ; "had the duty of releasing any employee who
could not do his job."
In March 1973, Weber was promoted to foreman. In this
capacity group leaders Jim Archer and Stanley Greathouse
reported to him. Sometime in late March 1973, Weber
"told [Jim Archer] what the responsibilities of the group
leader were." These included the authority to write a
reprimand on "anyone not contributing their load."
Continuing, Weber testified that he issued more than one
reprimand to Archer and Wehr and that he discharged
both Archer and Wehr. On April 5, 1973, Weber gave
Archer a written reprimand for "not calling to report
absence on 3-26-73 to supervisor." (See Resp. Exh. 4.) Nor
did anyone else call in on Archer's behalf on March 26.
On April 10, 1973, Weber issued a reprimand to Wehr
for "horseplay during working hours. Danger to other
employees." (See Resp . Exh. 5.) It is based on the same
incident which resulted in the issuance of a reprimand (see
Resp . Exh. 2) by Weber to Archer. These two reprimands
are based on the fact that Weber observed Archer and
Wehr "laughing , carrying on ... one stepped on the other
end of the paper and the other one jerked it and the other
one fell, and in the process of coming up the line .. .
someone could have gotten hurt. . . . Archer was standing
on the paper and Wehr pulled the paper out from under
him." Further, Weber insisted that he had in the past
"warned or reprimanded" both Archer and Wehr "about
horseplay ... quite frequently." Following "this particular
reprimand" Archer was first suspended and on the
following Thursday was terminated. But Weber did not
call Archer to the plant on that Thursday.
On May 9, 1973, Weber issued another reprimand to
Wehr for "Refusal to follow orders. Suspended until
further notice." (See Resp. Exh. 6.) It was prompted as a
consequence of Wehr's "spilling of screws off the scaffold"
and failing to pick them up after Weber four times told him
to do so. About 2 hours later Kerns removed the screws
from the floor. As a result of this refusal Wehr was
dismissed by Weber the following Friday.
On cross-examination Weber stated he observed Archer
distributing union literature and wearing union insignia on
his safety helmet. Also, Archer gave him pencils carrying
the legend "Vote United Steelworkers." Additionally, on
cross-examination Weber admitted that as a group leader
he "basically followed a production order in doing what
was to be done" and that he was a "working group leader"
doing physical work 60 percent of the time. The other 40
percent of the time he helped the two men working under
him by "working together with them ... under me." He
also stated that Respondent does not put out any written
material describing the duties of a group leader; and that
after Archer was discharged no one replaced him as a
group leader.
Respondent's cabinet shop foreman, Thomas Moore,
testified in substance as follows. Group leader David
Matthews was informed by Moore that the duties of
Matthews as such group leader included "responsibility for
the production that came out of the shop, and the quality
that came out of the shop, and as he could write a person
up, give them a reprimand, if he thought it necessary."
Moore not only introduces new employees in his depart-
ment to the group leader, but also explains to them to refer
their problems to such group leader. Such leader then
introduces the new employees to the other employees. As a
group leader Moore once issued a reprimand after
consulting his foreman.
Continuing, Moore affirmed that his group leader,
Matthews, (a) "decides whose job it is to do, and then to
discuss it with me, and then that's who works overtime,"
(b) "has the responsibility to keep the quality up" and (c)
requires the employee who makes "mistakes or shoddy
work" "to fix it or straighten it up, or whatever it might
be." Also, before becoming a foreman Moore served as a
group leader. Then Matthews succeeded him as such group
leader, performing the same duties Moore had as such
leader. As such leader, Moore "was to take care of the
shop, the production that come out of it, and the quality,
and that I was responsible for what went on back there,
and that if anyone need wrote up that I could do that." As
group leader, Moore and other such leaders attended
meetings of foremen with management, but group leader
Dave Matthews did not attend such meetings. However,
FUQUA HOMES (OHIO), iNC.
group leaders James Archer, Robert Rossiter, Mitchell
Perkins, Fred Kress, and Carl Parsons did attend such
meetings . Finally, Moore averred that Matthews as group
leader could not excuse an employee from work during the
day after said employee started the day unless Matthews
first "reported it to" Moore and obtained Moore's
sanction.
Jerry Clark, another witness for Respondent, testified in
substance as follows. Clark is the foreman in the framing
department. Three group leaders, Robert Rossiter, Fred
Kress, and Mitchell Perkins, "reported to" him. When said
group leaders "had a problem with an employee not doing
exactly what they wanted [the employee] to do" they
talked to Clark about it. Clark instructed them "to talk
with the employee. If it didn't help, write them up . . . for
not doing their work." Before being promoted to foreman,
Clark worked as a group leader under Foreman Melvin
Thomas.
Clark stated that Kress as group leader was over 6
employees, Rossiter over 10 employees, and Perkins over 7
employees. In addition, Rossiter "issued oral warnings" to
employees which Clark personally heard. Further, Clark
stated it was his practice to introduce a newly appointed
group leader to the employees and informed them that
such leader "will be telling you what to do and how to do
it. And he's like if I was telling you." Thereafter the group
leader "more or less has a full say over what [an employee]
does in his department."
At one time Clark served as a group leader. As such he
recommended that an employee be discharged. As such
leader Clark also recommended the hiring of employees
but only after Foreman Thomas asked for his opinion of
them. Clark also attended meetings of foreman with
management . Further, Clark testified that as a foreman he
observed James Archer, Fred Kress, Mitchell Perkins, and
Carl Parsons "distribute or display union literature to
employees at Fuqua Ohio." Finally, Clark stated that
group leaders "worked along the side of the group they
worked with ... . They assign to the men under them
what they want them to do"; that group leaders punch a
timeclock and are paid on an hourly basis; that foremen,
but not group leaders, are provided with the company
parking spaces; that foremen enjoy a different health and
accident insurance program than that provided for group
leaders; that the group leaders are granted the same
insurance program extended to hourly paid employees;
that an employee may not take off during working hours or
fail to report to work without the approval of the foreman;
that group leaders and employees, but not foremen, "share
in the same way" in a bonus plan.
Another witness for Respondent, Larry Thomas, testified
that, as an employee in its finishing department, he was
introduced by his foreman, Greg Stapleton, to his group
leader, James Archer. Thereafter Archer, as group leader,
directed Thomas what jobs to perform. Later Thomas
himself became a group leader, but no one challenged his
vote when he voted in the election in Case 9-RC-9948.
Thomas also testified that in May 1973, he heard Robert
Weber ask Ronald Wehr to "pick up . . . or clean up"
some screws on the floor. Replying that he didn't drop the
screws on the floor, Wehr not only did not comply with
411
Weber's request but also stated that he would not pick up
the screws.
Group leader Robert Lee Rossiter also gave testimony
on behalf of Respondent. A summary thereof follows.
When he was made a group leader he was told by Foreman
Thomas and Production Manager Amidon that his duties
as such leader were "to see that the work was done, and
... to see that the quality and the quantity was put out."
They also told him he could give oral or written warnings,
"or could recommend a written warning," or "could
recommend a firing of an employee . . . and the hiring of
an employee ." He also could recommend a raise in pay for
employees and did do so at least three times. He also
recommended a discharge. Then Thomas introduced
Rossiter to the employees as their group leader , informing
them that they would be working for Rossiter, that Rossiter
would be over them, and that if they needed anything to
see Rossiter about it . As a group leader Rossiter , together
with other group leaders and foremen , attended meetings
with Production Manager Amidon. In some of these
meetings , at which no employees were present , Amidon
told the group leaders that they were responsible for the
quality of the work and performance of any changes in
work orders.
As noted above Rossiter did testify that he was vested
with certain powers which he there described. He also
testified that he reprimanded employees by obtaining a
written, signed reprimand from Foreman Thomas and
handing it to an employee; and often gave oral warnings to
employees and then reported such incidents to Foreman
Thomas.
Respondent 's final witness , Robert Amidon , its pro-
duction manager from December 1971 to January 1973,
gave testimony in substance as follows. He "set up the
complete organization as far as the chain of command out
in the plant. Also the disciplinary system." Describing such
chain of command, he declared that it was "similar to the
Army . . . first line were the group leaders, second line the
foreman, third line myself." With the foreman, Amidon
selected the group leader for a group of employees "based
on the person's ability to direct other people." Among
others he recalled promoting to group leaders Mitchell
Perkins, James Archer, and Thomas Moore. Amidon also
stated new employees were given a handbook. (See G.C.
Exh. 7.)
When a group leader was appointed Amidon outlined
such leader 's duties to him . Such duties included "making
sure that the group did the work that was required; that all
people were kept busy; that the quality of the work that
was produced was first rate. They were also responsible for
recommending anybody for raises; anybody for termina-
tion or writing any written reprimands, either through
writing them themselves or asking a foreman to do so." He
also reminded the group leaders , including Archer , Kress,
Rossiter , Moore , and Perkins , at group meetings , of their
responsibilities as such leaders . At least one of those
meetings was called by group leader Rossiter . On this
occasion Rossiter complained that the foremen were
usurping his authority by dealing directly with employees.
All meetings were attended by Amidon, foremen, and
group leaders, but not by rank-and-file employees. Those
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attending such meetings discussed production problems , IV. THE RESPRESENTATION CASE
quality problems, and quantity problems. At all such
meetings Amidon told the group leaders that they were the
foremen's right hand.
According to Amidon a group leader's responsibility, "as
far as discipline went, was equal to that of the foremen
with the exception of the fact that the Group Leader could
not terminate an employee . He could recommend him
being terminated ...." They had the authority to disci-
pline an employee by writing a warning notice or
recommending such a notice to the foreman . Also "the
group leaders could recommend an employee for a raise
.... Further, Amidon asserted that he once treated the
group leaders to a lunch and once to a dinner . But he also
once took to a lunch a group which included rank -and-file
employees. Finally, he stated that if he observed a problem
arising in the plant he generally would not talk to the
employee involved about it but, rather, took it up with the
group leader or the foreman.
On cross-examination Amidon admitted that no space is
provided in the handbook in evidence as General Coun-
sel's Exhibit 7 to insert the name of the employee's group
leader , whereas said handbook does have a space preceded
by the legend "Your immediate Supervisor is Foreman
." (See p. 4, G.C. Exh. 7.) In fact he stated
that an employee 's group leader's name was never inserted
in said handbook by Respondent. He also did not deny
that Respondent had no written statement of a group
leader's duties or responsibilities.
C. General Counsel's Rebuttal Evidence
James Archer was recalled by the General Counsel as a
witness in rebuttal. His testimony in this capacity may be
succinctly stated as follows . Initially, he insisted that no
"management official" told him he had the authority to
hire or discharge , or discipline employees , or to recom-
mend a discharge . But when as a group leader he was once
asked about Hupp, an applicant for employment who had
used his name as a reference , Archer recommended said
Hupp. Also Archer testified that Foreman Stapleton,
Archer's foreman , was over two other group leaders, and
that Archer was a group leader over five employees.
However, when a layoff became necessary, and Foreman
Stapleton asked him what Archer thought about a certain
employee, Archer replied "it would be all right." Said
employee was then let go.
Continuing, Archer claimed he could not "send an
employee home for disciplinary reasons," and that he
could transfer an employee from one department to
another only when he "had instructions to." However,
Archer conceded he had been specifically authorized to
direct employees in his final finish department "to do
particular jobs within that department ... as [he] saw the
need arising ." He also "filled in" for an absent employee
by doing such employee's work. But he lacked authority to
promote employees or grant wage increases, or to recom-
mend the same , or to give an employee permission to take
time off or to leave work early.
A. Respondent's Evidence
In presenting evidence in the unfair labor practice case
Respondent also adduced evidence in support of its
position in the representation case . As this latter evidence
is related above as part of Respondent's defense in the
unfair labor practice case , it need not be repeated at this
point.
B. The Union's Evidence
Danny Allbritain worked under group leader Robert
Rossiter . In about October 1972, Rossiter told him that
when Allbritain first started to work Rossiter tried to get
him fired because he "wasn't doing too good," but that
Rossiter later told him, in connection with an impending
layoff, "I think we're going to keep you." Then in about
February 1973, Rossiter "just kept yelling, `get to work"'
at Allbritain. When the latter suggested that Rossiter fire
him if his work was unsatisfactory, Rossiter replied, "I
can't.,,
It was stipulated at this stage of the proceeding that
Robert Flowers, whose vote was challenged by the Union,
notified the employer prior to May 25, 1973, that he was
terminating his employment on May 25, that he punched
out at 4:30 p.m. on said May 25, and that after said May
25 his employment at Fuqua Homes ceased.
J. D. Kerns served as a group leader in the metal
department for about 2 or 3 months beginning about
February 1, 1972. When Kerns was appointed a group
leader Plant Manager Amidon told him that "three new
guys [were ] coming in Monday," that Kerns should "take
one ... and the other one would be working with
Stanley." But at no time was Kerns given any other
instructions concerning his duties as a group leader. When
an employee in his group was absent the foreman or
production manager provided a substitute for such vacant
job, but otherwise Kerns had no authority (a) over any
employee, or (b) to hire or fire or to recommend the same,
or (c) to "adjust ... or handle" an employee's problem
"with respect to the work." In fact Kerns devoted 95
to 100 percent of his working time performing physical
work on the job. According to Kerns, employees in his
group knew what work was to be done by reading a "hard
card" on a particular mobile unit, and they could
interchange or "swap" jobs in the group by merely asking
him for permission to do so because "it didn 't make any
difference as to who did what .9'
Kerns also witnessed an incident involving Ronald Wehr
and some screws. Although Kerns "heard the table fall and
the screws went on the floor" he "didn't think nothing
about it." With two others Kerns, about 5 to 15 minutes
later, raised the fallen scaffold and also he personally
picked up between 100 and 150 screws which he placed in
a little box on the table. Not long after this Foreman Bob
Weber thanked Kerns for picking up the screws. Kerns did
,not know where Wehr was during this time.
On cross-examination Kerns readily conceded that no
one from management informed him that he had been
FUQUA HOMES (OHIO), INC. 413
appointed a group leader . Nor did Kerns attend any
= m_eetings condu, ted by management for the group leaders.
Another witness for the Union upon this branch of the
consolidated case is James Reed. A conspectus of his
testimony follows. When asked on direct examination if he
is a group leader Reed replied , "I asked James Purvis .. .
about two or three weeks ago ... and he says, `I suppose
you are. You're making the top wage."' Reed first learned
that he might be a group leader when his vote was
challenged at the election of May 25, 1973. But up to that
time no one from the Company had informed him that he
was a group leader. After Reed's vote was challenged Reed
inquired of 'Production Manager Andrew Garrett as to
whether Reed was a group,leader, but Garrett "didn't give
me a straight answer ." At the trial, however, it was
stipulated that Reed is not.a group 'leader and that his
vote, may be counted.
Mitchell Perkins, who started to work for Respondent in
January 1972, was made a group leader in mid-1972, when
his foreman, Melvin Thomas, invited him to become one.
Eight or nine worked in his group with him. But at that
time Thomas did not discuss with him what was required
of Perkins as such group leader, nor did Thomas explain in
what way the "job requirements [of Perkins] might
change" in the role of group leader . Perkins also asserted
that 100 percent of his working time is devoted to
performing physical work with the employees in his group.
Nor does he tell such employees what work to do; they
ascertain what to do from "production sheets . . . on the
end of each coach." New employees were introduced by
the foreman to Perkins as their group leader, but they
would be trained by the other employees in the group.
Finally, if any employee requested Perkins for permission
to leave work early he would refer them to the foreman
"because I didn't have the right to send them home."
On cross-examination Perkins agreed that at meetings of
group leaders conducted by management such leaders were
instructed that it was their responsibility (a) to get the work
out in their departments, and (b) to see that such work was
of the proper quality. Also his foreman told employees "to
perform work for [Perkins ] just as if [the foreman] was
back there." And when the foreman isn't around "some-
times" the employees "come to [Perkins] with their
problems."
Fred Kress became a group leader in Respondent's plant
when his general foreman offered him the job. (This and
the remainder of Kress' duties as group leader is taken
from p . 97 - 137 of Resp. Exh. 8 .) The only instructions he
received as group leader was that he was "responsible for
my men, to see that my work was completed and [1] took
orders from my general foreman." But he did not possess
any authority to hire, fire, recommend promotions, or to
reprimand, or to adjust grievances. He is paid by the hour
as a group leader and works "right along with hourly paid
employees," devoting 100 percent of his time to "doing
production work." His only power over employees is to
"tell them what to do and see that it's done." However, he
did attend company meetings for group leaders, and it's his
job to keep everybody busy in his group.
Another witness upon this aspect of the consolidated
case is Carl Parsons, who was named a group leader in
October 1972, by Production Manager Amidon . However,
Amidon gave him no instructions as to the duties or
responsibilities attendant upon said position other than to
say that Parsons should keep busy the "two guys working
with me" and to tell them what work to do. Parsons spends
his entire working time in doing physical work. Neverthe-
less as group leader he attended meetings limited to such
leaders and foreman and from which rank-and-file
employees were excluded.
V. CONCLUDING FINDINGS IN THE COMPLAINT CASE
In arriving at the ensuing findings I have followed the
rule of law that the burden of proof is on the General
Counsel to establish the allegations of the complaint by a
preponderance of the evidence, and that no burden rests
upon Respondent to disprove such allegations.
A. As to the Reprimands Issued to
'Ronald L. Fehr
It is my opinion that the three reprimands issued to
Wehr were not motivated by antiunion considerations and,
therefore, do not contravene the Act. I find that the first
such reprimand , given to him for not reporting to work
from 7 to 9 a.m. on March 8 , 1973, was proper because he
was not excused for this period . It is true that he wanted to
be excused for the entire day of March 8 to attend an
NLRB hearing, and that he could not be lawfully
disciplined for going to it . But said hearing , which started
at 10 a.m., was held only 3/4 of a mile from the plant, so
that he could easily have arrived there by 10 a.m. if he
worked until 9 a.m. as directed by his supervisors.
Wehr insisted he could not have worked from 7 to 9 a.m.
because he had to consult with his attorney in connection
with the hearing which started at 10 a.m. But an employer
need not - grant time off to an employee to facilitate his
seeing a lawyer during the working time of such employee.
It is up to the employee to make arrangements to be
interviewed by an attorney during nonworking time.
Nor do I find that the reprimand given to Wehr on April
10, 1973 , for horseplay was inspired by union animus.
Initially, I do not make a finding as to whether Wehr's
conduct on this occasion actually did or did not amount to
horseplay. My function rather is to ascertain whether such
reprimand was a reprisal for Wehr's union activities
regardless of whether such conduct did or did not
constitute horseplay. I find that Foreman Weber sincerely
believed that Wehr had engaged in horseplay and that the
reprimand given to Wehr was not a pretext to dissemble
union animus.
Finally, I find that the last reprimand issued to Wehr by
Foreman Weber was for insubordination and was not a
pretext to disguise alleged retaliation against Wehr's union
activities. In this connection I rule that I may not inquire
into the severity of discipline or reproof administered by an
employer to an employee for dereliction of duties.
N.L.R.B. v. United Parcel Service, 317 F.2d 912, 914 (C.A.
1). I can only pass upon the question of whether such
reproof or discipline is a pretext to punish an employee for
his union activity or sympathy . I find no pretext here. And
I further find that Weber was justified in treating Wehr's
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to pick up the screws pursuant to Weber's order as
an act of insubordination.
B. As to the Discharge of Ronald L. Wehr
Upon an appraisal of the entire record I am of the
opinion, and find, that Wehr was lawfully discharged and
that the reason assigned therefor was not a pretext to cover
up antiunion motives allegedly behind said termination.
While I find that Respondent was opposed to unions, that
Wehr engaged in extensive union activity , and that
Respondent was aware of said activity, I also find that
these factors , without more , are insufficient to taint the
discharge as a discriminatory one. Rather, I find that Wehr
was discharged for cause , having received three lawful
reprimands, and particularly that the last reprimand, i.e.,
the one for being insubordinate, warranted his being
dismissed for refusing to obey a lawful command of
Weber. On this issue I find that the usual indicia of a
pretext are absent . Thus, for example , there is no past
misconduct which had been previously condoned or
overlooked; and also Wehr was immediately terminated
following his refusal to obey Foreman Weber's order to
pick up the screws.
As found elsewhere herein I find that Wehr was an
employee, and that he was not a supervisor, at the time he
was terminated.
C. As to the Reprimands Issued to James Archer
Although I have found, in discussing Wehr's reprimands,
that an employer need not grant an employee leave during
working time to enable him to be interviewed by a lawyer
in connection with a Board hearing . I find that on the facts
relating to Archer's reprimand of March 9, 1973, said
principle is inapplicable. It is undenied, and I find, that
Archer was informed on March 7 by Production Manager
Garrett to report to work from 7 to 9 a.m. on March 8, the
day on which he was scheduled to appear at a Board
hearing as a witness . But I further find , crediting Archer,
that when Archer later on March 7 told his foreman, Greg
Stapleton, that he could not work at all on March 8,
Stapleton authorized Archer to stay out the entire day. To
the extent that Respondent 's evidence is inconsistent with
Archer's on this issue I do not credit Respondent's
evidence . Since Stapleton sanctioned Archer's not working
from 7 to 9 a.m. on March 8, I find that Respondent's
reprimanding Archer in writing for not working during this
short period contravenes Section 8(a)(1) and (4) of the Act.
Further, I find that the written reprimand given to
Archer for his absence from work on March 19, 1973,
infringes upon Section 8(a)(1) and (3) of the Act. This is
because I find, crediting Archer's testimony and not
crediting Respondent 's evidence inconsistent therewith,
that Archer had his sister call Respondent to report that he
would be out that day on account of illness. Such call was
pursuant to Respondent's rules and practice and, conse-
quently, Archer's absence was excused in accordance with
such rules and practice. As found elsewhere herein
Respondent entertained union animus , Archer engaged in
union activity, and Respondent was aware of his said
activity. Also, I find that said reprimand was given to
Archer for engaging in said activity and that the reason
assigned by Respondent, i.e., failing to be excused for not
coming in to work on March 19 is a pretext to mask the
true reason.
However, I find that the written reprimand issued to
Archer on April 10, 1973, for horseplay during working
hours does not violate the Act. On this issue the facts and
reasons for finding no transgression of the Act have been
stated in discussing Wehr's being reprimanded for the
same incident, and are incorporated here by reference.
They disclose that Foreman Weber was warranted in
concluding that Archer and Wehr were engaging in
horseplay; that I would not decide whether in fact their
conduct actually amounted to horseplay; and that the
reprimand issued to Archer and Wehr on this occasion was
not utilized for antiunion purposes.
D. As to the Discharge of James Archer
Initially , I find that as a group leader Archer was an
employee and not a supervisor within the meaning of
Section 2(11) of the Act. This finding is derived from the
entire record and the following subsidiary findings which I
hereby find as facts . In arriving at such subsidiary findings,
recited in the next paragraph , I have credited Archer and
have not credited Respondent's evidence not consonant
therewith.
When Foreman Stapleton and Production Manager
Amidon appointed Archer as a group leader they informed
him that his duties as such required him "to make sure
everything was done . . . to have a good looking coach
when it came out, and to see the people were busy, and to
help out when I was needed ." However, both before and
after he became a group leader Archer punched a
timeclock and was paid by the hour, although as group
leader his wage was increased 10 cents an hour. Addition-
ally, as group leader he spent 95 percent of his work time in
"physical work activities," and filled in for absent
employees . But as a group leader he had no power to hire,
fire , transfer an employee to another department, to
discipline an employee, or to recommend the foregoing.
Finally , both Archer and the employees in his group
obtained their assignments from a production card
attached to the front of a "product ," but he did not
participate in completing said card.
Since Archer was an employee, I find that his discharge
violated Section 8(a)(1), (3), and (4) of the Act , and that the
reason assigned for terminating him, i .e., receiving three
written reprimands , is a pretext to cloak the actual reason.
Said finding is derived from crediting evidence consonant
therewith and not crediting evidence inconsistent there-
with . Itisderived from the entire record and the following
subsidiary findings which I hereby find as facts.
1. Respondent displayed union animus . Of course this
alone is insufficient to establish a finding that Respondent
violated the Act, for Section 8(c) of said Act guarantees an
employer freedom to be "unalterably opposed" to unions
and to express such a sentiment to his employees . N.L.R.B.
v. Consolidated Diesel Electric Co.,469 F.2d 1016,(C.A. 4,
1972); N.L.R.B. v. Threads, Inc., 308 F.2d 1, 8 (C.A. 4,
1962). Nevertheless, an employer's dislike of unions
communicated to his employees is a factor which may be
FUQUA HOMES (OHIO), INC.
evaluated, together with other evidence, in ascertaining the
true cause of an employee's discharge. Maphis Chapman
Corporation v. N.L.R.B., 368 F.2d 298, 304 (C.A. 4, 1966).
2. Archer was active on behalf of the Union and
Respondent had knowledge thereof. Such knowledge arises
because it is reasonable to infer-and I do so-that in a
small plant , such as Respondent's, an employer is aware of
who are the chief union protagonists in his plant.
"Obviously the discharge of a leading union advocate is a
most effective method of undermining a union organiza-
tional effort." N.L.R.B. v. Longhorn Transfer Service, Inc.,
346 F.2d 1003, 1006 (C.A. 5, 1965).
In such instances it is significant that employers rarely
divulge discriminatory tactics in discharging union adher-
ents ; but "such purpose may be shown by circumstantial
evidence." Corrie Corporation of Charleston v. N.L.R.B.,
375 F. 2d 149, 152 (C.A. 4, 1967). "Nowadays it is usually a
case of more subtlety.. .." N.L.R.B. v. Neuhoff Bros., 375
F.2d 372, 374 (C.A. 5, 1967). Hence it is not unusual for an
employer to stress an employee's doubtful deficiencies to
justify a termination prompted by antiunion motives. I find
that the above comments of the courts extend to Archer's
discharge.
3. Archer was precipitately discharged during the
height of the union campaign. While I recognize that
abruptness of a discharge, without more, does not establish
that such termination was not for cause (cf. Miller Electric
Manufacturing Co. v. N.L.R.B., 265 F.2d 225, 226-227
(C.A. 7, 1959)), nevertheless I find that in Archer's case the
suddenness of the decision to dismiss him as an employee,
when appraised together with the other facts found herein,
points to the conclusion, and I find, that his conduct would
not have resulted in his discharge if he had not been an
active proponent of the Union at Respondent's plant. "The
abruptness of a discharge and its timing are persuasive
evidence as to motivation." N.L.R.B. v. Montgomery Ward
& Co., 242 F.2d 497, 502 (C.A. 2, 1957), cert. denied, 355
U.S. 829.
4. Assuming valid grounds existed to discharge Archer,
it does not follow that he was lawfully discharged. For the
mere existence of valid reasons to discharge an employer is
no defense to a charge that such termination was
predicated in part upon, a desire to discourage union
activity if such charge is supported by the evidence.
N.L.R.B. v. Murray-Ohio Manufacturing Company, 358
F.2d 948, 950 (C.A. 6, 1966); N.L.R.B. v. Symons
Manufacturing Co., 328 F.2d 835, 837 (C.A. 7, 1964); Santa
Rita Mining Co. v. N.L.R.B., (C.A. 10) 474 F.2.d 1345 I find
that Archer' s alleged misfeasance "was seized upon by
Respondent to serve a discriminatory purpose." N.LR.B.
v. West Side Carpet Cleaning Co., 329 F.2d 758, 761 (C.A.
6, 1964).
5. Finally, in order to find Archer's discharge to be
discriminatory it is not necessary that his union activity
was the sole element responsible for his being terminated.
It is enough to determine that his discharge was prohibited
by the Act if his union activity was a motivating or
substantial ground for his discharge notwithstanding that a
valid ground may have arisen for applying disciplinary
measures . N.L.R.B. v. Lexington Chair Co. 361 F.2d 283,
295 (C.A. 4, 1966); N.L.R.B. v. Murray-Ohio Manufacturing
415
Company, 358 F.2d 948, 950 (C.A. 6, 1966). And I expressly
find that Archer's union activity played a substantial or
motivating-but not necessarily the only-part leading to
his discharge.
E. As to Alleged Threats To Discharge Employees
for Union Activity
About March 9, 1973, Foreman Stapleton told Wehr that
Respondent would be watching the work of those who
attended a Board hearing the day before so that they could
be discharged after making three mistakes. I credit Wehr
on this aspect of the case. But I find that this is not an
unlawful threat proscribed by the Act, as I find that it
amounts to no more than adoption of a new policy and the
giving of notice of such a policy by management.
On the same day Stapleton told Archer that no one was
going to cause Stapleton to lose his job and that Archer
would be going before Stapleton. Archer is credited on this
phase of the case . Nevertheless I find this statement to be
too indefinite to constitute a threat to discharge Archer or
any. other employee for engaging in union activity. Hence I
find that it does not transgress Section 8(a)(1) of the Act.
On the same day Production Manager Garrett gave
employee Danny Allbritain a written reprimand and told
Allbritain, "two more of these and you're out." I credit
Allbritain that he was so warned by Garrett. But since
Respondent had a right to reprimand employees for
derelictions of duty on failure to perform work properly, I
find that admonishing an employee that he risked
discharge for improper action does not constitute an
unlawful threat. Hence I find that Garrett's statement does
not violate the Act.
About March 7, 1973, Production Manager Garrett told
Danny Allbritain that "we've got to cut this stuff
[attending a Board hearing] out, it's interfering with our
work [and] . . . cutting down production." Not withstand-
ing that I credit Allbritain, I perceive no threat to discharge
anyone in this remark. At most it demonstrates displeasure
with employees who attend Board hearings, but does not
contain a threat of reprisal for such attendance.
About March 8, 1973, Carl Parsons was present at a
Board hearing at the Union's request but did not testify
while there. The next day Foreman Stapleton asked him
what would have been the nature of Parsons' testimony if
he had testified at such hearing. I find no unlawful
interrogation of Parsons in Stapleton's questioning of him.
About March 9, 1973, Foreman Stapleton told employ-
ees Parsons , Archer, and Lawrence that "This was it .. .
[I'd] be watching for [you] and that the first mistake, [you]
was out the door." I credit Parsons that this statement was
uttered. Since this did not reflect Respondent's policy of
discharging after three reprimands, it patently is a threat to
discharge for any mistake. Such threat, moreover, was
prompted by antiunion considerations, as it was made
contemporaneously with the Union' s organizing campaign.
Accordingly, I find that it contravenes Section 8(a)(1) of
the Act. Still later that day Stapleton told Archer that
Archer would be fired after receiving three reprimands. I
find this is but disclosing a new company policy and,
therefore, does not constitute a threat condemned by the
Act.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Those activities set forth in section V, above, found to
constitute unfair labor practices , occurring in connection
with its operations described in section I, above, have a
close , intimate , and substantial relation to trade , traffic,
and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and
the free flow of commerce.
VII. THE REMEDY
As Respondent has been found to have engaged in
certain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and that it take
specific action, as set forth below, designed to effectuate
the policies of the Act.
As Respondent has been found to have unlawfully
discharged James Archer, it will be recommended that it be
ordered to offer him immediate and full reinstatement to
his former position or, if such is not available, one which is
substantially equivalent thereto, without prejudice to his
seniority and other rights and privileges. It will also be
recommended that Archer be made whole for any loss of
earnings resulting from his discharge.
In making Archer whole Respondent shall pay to him a
sum of money equal to that which he would have earned as
wages from the date he was terminated to the date of his
reinstatement or a proper offer of reinstatement, as the
case may be, less his net earnings during such period. Such
backpay, if any, is to be computed on a quarterly basis in
the manner provided in F. W. Woolworth Co., 90 NLRB
289, with interest thereon at 6 percent per annum
calculated according to the formula prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716. It will also be
recommended that Respondent preserve and make avail-
able to the Board or its agents, upon reasonable request, all
pertinent records and data necessary to aid in analyzing
and determining whatever backpay, if any, may be due.
Finally, it will be recommended that Respondent post
appropriate notices , the form of which is related in the
Appendix, infra . [Omitted from publication.]
As the record does not reveal that Respondent has
exhibited a general hostility to the Act, I conclude and find
that a broad remedial order against it is not warranted.
Upon the basis of the foregoing findings of fact , and the
entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce as defined in
Section 2(6) and (7), of the Act.
3. By reprimanding in writing James Archer for being
absent to attend a Board hearing Respondent has engaged
in an unfair labor practice within the meaning of Section
8(aX4) and (1) of the Act.
4. By discriminatorily threatening to discharge employ-
ees who made one mistake , at a time when its policy was to
discharge after three mistakes , Respondent committed an
unfair labor practice forbidden by Section 8(a)(1) of the
Act.
5. By discriminating in regard to the tenure of
employment of James Archer, thereby discouraging mem-
bership in the Union, a labor organization , Respondent has
engaged in an unfair labor practice condemned by Section
8(a)(3) and (1) of the Act.
6. The above-described unfair labor practices affect
commerce within the contemplation of Section 2(6) and (7)
of the Act.
7. Respondent has not committed any other unfair
labor practices alleged in the complaint.
[Recommended Order omitted from publication.]