Nanticoke Homes, Inc.

National Labor Relations Board - Board Decisions

May 7, 1982

261 N.L.R.B. 736 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nanticoke Homes, Inc. and Chauffeurs, Warehouse-
men and Helpers, I.B.T.C.W.H. of America,
Local Union No. 876. Cases 5-CA-11273, 5-
CA-11555, and 5-RC-10937
May 7, 1982
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On January 5, 1981, Administrative Law Judge
George Norman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, 2
except as set forth herein.
Respondent manufactures single-family "pre-fab"
homes. In calculating Respondent's backlog (the
number of homes Respondent had orders to build)
as part of evaluating Respondent's economic de-
fense for its layoffs, the Administrative Law Judge
used the actual production figures for the months
in question rather than projected production fig-
ures. The General Counsel argues that Respondent,
in fact, used the projected figures in calculating its
backlog. While the record supports the General
Counsel's contention, we find that even viewing
the figures in the light most favorable to Respond-
ent, which is apparently what the Administrative
Law Judge did, the numbers, together with the
other findings set forth in the Administrative Law
Judge's Decision, do not support Respondent's
contention that the layoffs were economically mo-
tivated.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We also find totally without merit Respondent's allegations of bias and
prejudice on the part of the Administrative Law Judge. Upon our full
consideration of the record and the Administrative Law Judge's Deci-
sion, we perceive no evidence that the Administrative Law Judge pre-
judged the case, made prejudicial rulings, or demonstrated a bias against
Respondent in his analysis or discussion of the evidence.
2 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962),
for the rationale on interest payments.
261 NLRB No. 107
The General Counsel also excepts to the Admin-
istrative Law Judge's failure to state in the Conclu-
sions of Law that Respondent violated Section
8(a)(3) and (1) of the Act by the unlawful action it
took against its employees. That is, the General
Counsel contends that Respondent laid off employ-
ees because of the protected work stoppage and be-
cause of their membership in and activities on
behalf of the Union. The General Counsel contends
that the Administrative Law Judge made this
8(a)(3) finding but inadvertently failed to put it in
the Conclusions of Law. We agree and hereby
amend the Conclusions of Law.3
Finally, the General Counsel contends that the
Administrative Law Judge erred in ruling that a
surreptitiously recorded conversation, and tran-
script thereof, would only be admitted into evi-
dence for the purposes of credibility and refreshing
the recollection of witnesses. The General Counsel
is correct. See East Belden Corporation, 239 NLRB
776, 782 (1978). However, the General Counsel
stated, on the record, that the evidence which was
contained on the tape was admitted by way of the
direct testimony of Moore, the employee who re-
corded the conversation. Accordingly, the Admin-
istrative Law Judge's ruling is not reversible error.
Respondent contends that it was unaware of the
union activities of its employees until August 5 or
6, 1979.4 It also contends that under the circum-
stances of this case the small-plant doctrine is inap-
plicable. We agree that the small-plant doctrine is
inapplicable. However, we note that the Adminis-
trative Law Judge also found, based on the record
as a whole, that Respondent had direct knowledge
of the employees' organizational activity. Thus, the
Administrative Law Judge specifically found that
as of July 27 Respondent's president, Mervine, had
in his possession a map directing the employees to
a union meeting and that he asked various employ-
ees if they were aware of the meeting. On July 28
Mervine told employee Hughes that "whoever at-
tends the meeting will be fired." Accordingly, on
July 30, while discussing employee Dawson's 3-day
suspension, Mervine told her that it was because of
her union activities. Finally, also on July 30, Mer-
vine asked employee Moore if he had attended the
union meeting on Saturday. Accordingly, we agree
with the Administrative Law Judge that as of at
least July 27 Respondent was aware of its employ-
ees' union activities.
Respondent also argues that the work stoppage
that occurred on July 20 was an unprotected sit-
s Respondent excepts to the Administrative Law Judge's finding that
between August 3, 1979, and February 22, 1980, it hired 60 new employ-
ees instead of 16. We agree and hereby correct that typographical error.
4Unless otherwise specified, all dates herein are in 1979.
736
NANTICOKE HOMES, INC.
down strike. We disagree and find, as did the Ad-
ministrative Law Judge, that the work stoppage
was protected and that Respondent violated Sec-
tion 8(a)(1) of the Act by its conduct as set forth in
the attached Decision. See Pepsi-Cola Bottling Co.
of Miami, Inc., 186 NLRB 477 (1970);5 Lewittes
Furniture Enterprises, Inc., 244 NLRB 810 (1979).
Finally, Respondent argues that the election
should not be set aside because there was only one
instance of unlawful interrogation after the election
petition was filed on August 9. However, we note
that the Administrative Law Judge also found that
on August 9 and 10 and October 19 Respondent
engaged in unlawful interrogation and threats.
These occurred during the critical period and we
agree with the Administrative Law Judge that the
election should be set aside and a second election
conducted.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 5:
"5. Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act by terminating, discriminating against, and re-
fusing to reinstate or failing to reinstate the follow-
ing employees because they engaged in protected
concerted activities for their mutual aid and protec-
tion by engaging in a work stoppage and because
of their membership in, and activities on behalf of,
the Union:
Jeffrey Baker
Craig Beebe
Ronald Bounds
William Butcher
Timothy Chambers
Frank Chaloupa
Norman Coverdale
Dean Drosky
Benjamin Ewing
Carol Goodhand
Thomas Greenlee
Lawrence Grimm
Myron Hayes
Harry Haynes
Eugene Hughes
Michael Johnson
Martin Joseph
Paul Kenton
Lloyd King
Lucas Lewis
Steve Marsh
Jim McIntyre
Kenneth Mills
William Mack
David Moore
Paul Moore
Paul Morris
David O'Neal
Kevin Passe
Thomas Parks
Cindy Phelam
Eugene Price
Jefferson Rew
Ronald Ryall
John Shackley
Eric Smith
James Snow
Wayne Sumpter
Loretta Tapscott
David Virdin
N. J. Walsh
Richard Warfield
James White
Ruby Williams
6 Chairman Van de Water, while agreeing that the circumstances here
do not indicate that the work stoppage was an illegal sitdown strike, does
not approve the Board's decision in Pepsi-Cola Bottling Co. of Miami, Inc.,
supra, and does not rely on it.
Charles Michaels
Curtis Millman
Edwin Williamson
Robert Worthington"
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Nanticoke Homes, Inc., Greenwood, Delaware, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph 2(e):
"(e) Post at its offices and places of business in
Greenwood, Delaware, copies of the attached
notice marked 'Appendix.'1 6 Copies of said notice,
on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's
authorized representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election be, and
it hereby is, set aside, and that Case 5-RC-10937
be, and it hereby is, remanded to the Regional Di-
rector for Region 5 to conduct a second election.
[Direction of Second Election and Excelsior foot-
nore omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had a chance to
give evidence, it has been found that we, Nanti-
coke Homes, Inc., have violated the National
Labor Relations Act, as amended, and we have
been ordered to post this notice and to abide by
the following:
WE WILL NOT terminate, discriminate
against, refuse to reinstate, or fail to reinstate
employees because they engaged in protected
concerted activities for their mutual aid and
protection by engaging in a work stoppage.
WE WILL NOT terminate, discriminate
against, refuse to reinstate, or fail to reinstate
737
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees because of their membership in or
because they engage in activities on behalf of
Chauffeurs, Warehousemen and Helpers,
I.B.T.C.W.H. of America, Local Union No.
876, or any other labor organization.
WE WILL NOT threaten to discharge employ-
ees if they engage in protected concerted ac-
tivities for their mutual aid and protection or
in any protected concerted work stoppage.
WE WILL NOT question employees concern-
ing their participation in protected concerted
activities, including strikes and work stop-
pages, for their mutual aid and protection.
WE WILL NOT question employees concern-
ing their attendance at union meetings.
WE WILL NOT question employees concern-
ing their sympathy for and activities on behalf
of any labor organization, including Local
Union No. 876.
WE WILL NOT create an impression that we
are spying on our employees by telling them
that we will watch them to learn if they con-
tinue to engage in activities on behalf of any
labor organization, including Local Union No.
876.
WE WILL NOT offer pay increases to em-
ployees in exchange for information concern-
ing activities of employees on behalf of any
labor organization, including Local Union No.
876.
WE WILL NOT offer pay increases to em-
ployees to discourage activities on behalf of
any labor organization, including Local Union
No. 876.
WE WILL NOT threaten to suspend employ-
ees because of their activities on behalf of
Local Union No. 876.
WE WILL NOT threaten to close the plant in
order to discourage employee activities on
behalf of Local Union No. 876.
WE WILL NOT threaten to discharge employ-
ees if they engage in activities on behalf of
Local Union No. 876.
WE WILL NOT suspend employees because
they engage in protected concerted activities
with other employees for their mutual aid and
protection by participating in a work stoppage.
WE WILL NOT suspend employees because
they engage in activities on behalf of Local
Union No. 876.
WE WILL NOT spy on our employees who
attend union organizing meetings.
WE WILL NOT cease the operation of work
shifts in retaliation for employees' membership
in or activities on behalf of any labor organiza-
tion, including Local Union No. 876.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL retract the work suspension suf-
fered by Linda Diane Dawson, and WE WILL
expunge from all our personnel and employ-
ment records the reference to the discriminato-
ry suspension of Linda Diane Dawson.
WE WILL offer Linda Diane Dawson imme-
diate and full reinstatement to her former posi-
tion or, if such position no longer exists, to a
substantially equivalent position, without prej-
udice to her seniority or other rights and privi-
leges, and WE WILL make her whole for any
loss of pay and other benefits suffered as a
result of her discriminatory suspension and ter-
mination, with interest.
WE WILL offer to the following employees
immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prej-
udice to their seniority or other rights and
privileges, and WE WILL make them whole,
with interest, for any loss of earnings suffered
as a result of their being discriminatorily termi-
nated and refused reinstatement:
Jeffrey Baker
Craig Beebe
Ronald Bounds
William Butcher
Timothy
Chambers
Frank Chaloupa
Norman
Coverdale
Dean Drosky
Benjamin Ewing
Carol Goodhand
Thomas Greenlee
Lawrence
Grimm
Myron Hayes
Harry Haynes
Eugene Hughes
Michael Johnson
Martin Joseph
Paul Kenton
Lloyd King
Lucas Lewis
Steve Marsh
Jim McIntyre
Charles Michaels
Kenneth Mills
William Mack
David Moore
Paul Moore
Paul Morris
David O'Neal
Kevin Passe
Thomas Parks
Cindy Phelam
Eugene Price
Jefferson Rew
Ronald Ryall
John Shackley
Eric Smith
James Snow
Wayne Sumpter
Loretta Tapscott
David Virdin
N. J. Walsh
Richard Warfield
James White
Ruby Williams
Edwin Williamson
738
NANTICOKE HOMES, INC.
Curtis Millman Robert Worthington
NANTICOKE HOMES, INC.
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge: This
case was heard in Georgetown, Delaware, on February
25, 26, 27, and 28, March 12, and April 8, 9, 10, 28, 29,
and 30, 1980. By order consolidating cases issued on De-
cember 12, 1979, the Regional Director for Region 5
consolidated the complaint and notice of hearing in Case
5-CA-11555 with the complaint and notice of hearing in
Cases 5-CA-11273 and 5-RC-10937. The complaint in
Case 5-CA-11273 is based on a charge filed by Chauf-
feurs, Warehousemen & Helpers, I.B.T.C.W.H. of Amer-
ica, Local Union, No. 876, herein the Union or the Peti-
tioner, on August 3, 1979, and the complaint in Case 5-
CA-11555 is based on a charge filed by the Union on
October 2, 1979. By order of the Board, dated December
7, 1979, the Board ordered that the issues raised by ob-
jections to conduct affecting the results of the election
filed by the Petitioner on October 25, 1979, be processed
pursuant to the Regional Director's order consolidating
cases and notice of hearing.' The complaints allege that
Respondent violated Section 8(a)(l) and (3) of the Act
by, inter alia, threatening to discharge employees if they
engage in protected concerted activities for their mutual
aid and protection by participating in a work stoppage;
interrogating employees concerning their participation in
a protected concerted work stoppage; interrogating em-
ployees concerning their attendance at union meetings
and/or their sympathy for and activities on behalf of the
Union; creating the impression of surveillance by telling
employees that Respondent would watch them to learn if
they continued to engage in activities on behalf of the
Union; offering pay increases to employees in exchange
for information concerning the activities of employees on
behalf of the Union and to discourage activities on behalf
of the Union; threatening to suspend the employment of
employees because of their activities on behalf of the
Union; threatening to close the plant in order to discour-
age employee activities on behalf of the Union; threaten-
'Objections I, 2, and 3 are as follows:
1. The Employer, by its agents and servants, interrogated employ-
ees concerning their attendance at union meetings and/or their sym-
pathy for and activities on behalf of Petitioner.
2. The Employer, by its agents and servants, threatened to close
the plant in order to discourage support of Petitioner.
3. The Employer, by its agents and servants, threatened to dis-
charge employees if they engaged in activities on behalf of the
Union.
In support of these objections, the Petitioner relied on the evidence sub-
mitted in the investigation of the unfair labor practice charge in Case 5-
CA-I 1273. The Petitioner submitted no additional evidence in support of
these objections. The Employer did not submit any additional evidence in
reply to the allegations raised by these objections, but also relied on the
evidence presented in the investigation of the unfair labor practice charge
in Case 5-CA-11273. The Regional Director concluded that substantial
and material issues had been raised with regard to the Petitioner's Objec-
tions I, 2, and 3 which could best be resolved by a hearing. The issues
involved in the complaints and the objections will be resolved in this De-
cision.
ing to discharge employees if they engage in activities on
behalf of the Union; engaging in surveillance of employ-
ees in attendance at a union organizing meeting; discrimi-
nating against an employee by suspending her employ-
ment because she engaged in protected concerted activi-
ties; and interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed them in Sec-
tion 7 of the Act and discriminating against them by ter-
minating their employment and refusing to reinstate them
because they engaged in protected concerted activities.
Upon the entire record in this case and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is now, and has been at all times material
herein, a Delaware corporation engaged in the business
of manufacturing and erecting single-family homes at its
Greenwood, Delaware, location. During the preceding
12 months, a representative period, Respondent received
gross revenues in excess of $500,000. During the same
period, Respondent sold and shipped, in interstate com-
merce, products valued in excess of $50,000 to points lo-
cated outside the State of Delaware.
The complaint alleges, the answer admits, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
1I. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that Chauffeurs, Warehousemen and Helpers,
I.B.T.C.W.H. of America, Local Union No. 876, is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent, Nanticoke Homes, Inc., is a Dela-
ware corporation engaged in the business of selling and
building single-family homes and offices at its Route 13,
Greenwood, Delaware, plant. The Company was origi-
nally founded in 1971 by John Mervine and Al Tanyer
to build homes for speculation, a practice which is no
longer followed. Initially, the Company intended to con-
struct homes in a traditional manner, i.e., built on site,
but severe weather problems in early 1971 delayed con-
struction of the Company's first houses and forced Nanti-
coke to devise an alternative method of construction.
Mervine, the company president, developed the con-
struction process whereby houses were built in two sepa-
rate construction phases before being completed. The
basic construction of the home is performed at the
Greenwood, Delaware, plant. Prior to February 1979,
the Company constructed homes on two production lines
at its original plant, a converted chickenhouse located on
property owned by company president Mervine. As busi-
ness improved and the demand for the Company's houses
increased, the need for expansion lead the Company to
acquire additional land to build a new facility in the fall
of 1978. The new plant, which became operational in
November or December 1978, was intended to supple-
739
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment the production of houses at the Company's original
plant. Initially, the Company's goal was to produce 2
houses a day at each plant, for a total of 20 houses a
week from the 2 plants.
In February 1979, the Company's original plant
burned to the ground and, as a result, two-thirds of the
Company's production capability at that time was de-
stroyed leaving only the newer plant with a single pro-
duction line producing 5 houses instead of the average 15
houses per week.
Until the time of the fire, both plants had operated on
a single-shift basis. After the fire a second shift was put
into effect resulting in the productivity of that plant's
single-line operation increasing to 10 houses per week or
double what it had been. The company backlog time of
houses on order was reduced from II months to 5.5
months with the institution of the second shift.
A. The Union Organizational Campaign
On Monday, July 23, 1979,2 Union Agent Bob Reyn-
olds contacted employee Paul Moore, who was then on
the night shift, and a meeting was set for the next day.
On the next day, Moore, Anthony Taylor, Greg Poore,
and Lawrence Grimm met with union representatives at
Moore's home. They discussed the problems at Nanti-
coke and the idea of having a larger meeting with more
of the employees present. They set up a date and place
for the next meeting, Saturday, July 28, at Ellendale
Forest Pavillion. Moore's wife prepared a map to the
place of the meeting and, after copies were made, Moore
passed them out to the five individuals who showed up
at the first meeting at Moore's home. After that, the
maps were distributed by them to other employees in the
plant. Also at that first meeting Anthony Taylor re-
ceived a "smile the Teamsters are coming" sticker which
he began wearing in the plant about a week later, ap-
proximately July 30. The map was accompanied by an
announcement which read, "Anyone interested in seeing
improvements at Nanticoke homes for employees, you
are encouraged to attend an employee meeting on Satur-
day July 28, at 10 AM."
On Friday, July 27, the day before the Saturday meet-
ing, Moore, who was working on the late shift, reported
to work around 4 p.m., and around 4:15 p.m. John Mer-
vine entered the plant through the warehouse door.
Moore testified that Mervine spoke to Bill Smith, a su-
pervisor. He said Mervine spoke loudly and called some-
one a liar. Mervine then went into the plant and pro-
ceeded to the sheetrock area, where he asked the sheet-
rockers, including Grimm, Poore, and Erik Smith, "Did
you see the map?" Grimm replied, "What map?" Mer-
vine then said, "It's hanging right up there. There is no
way you could miss it. Wait a minute." Mervine then
went to get the map and, with the map in his hand, he
asked if the employees wanted to look at it. Grimm re-
plied in the negative. Mervine laughed, folded the map,
and left. Grimm later related to Moore that conversation
with Mervine. On Saturday, July 28, the first union
meeting open to all employees was held. About 20 em-
' All events herein occurred in 1979 unless otherwise indicated.
ployees attended and 19 signed a petition supporting the
Union.
John Mervine testified that he first saw the map on
Friday afternoon, July 27, but that it came onto his desk
too late on Friday to mention anything about it to
anyone until the Monday after the meeting, or July 30.
At that time, he engaged Larry Grimm in a lengthy con-
versation in which he inquired as to whether there was a
meeting over the weekend, to which Grimm responded
in the affirmative.
According to Moore and Grimm, approximately 19
employees attended the meeting on July 28 at the Ellen-
dale Forest Pavillion, where they were addressed by
Union President Reynolds and were given a number of
petitions to have signed by other employees in the plant.
During the following week, employees, including Moore
and Grimm, attempted to get their fellow workers to
sign the union petitions. Moore and Grimm testified that
their efforts were conducted secretly and that they did
not engage in any organizational conduct on company
time or in the presence of company officials.
B. The July 20 Work Stoppage
On Friday, July 20, employees Greg Poore, Erik
Smith, and Lawrence Grimm, while riding to work in
their carpool, discussed the possibility of engaging in a
work stoppage that day. Upon arriving at the plant, each
spoke with other employees that morning. They arrived
at a decision to engage in a work stoppage around 9:15
a.m., after the morning break, in the area where decks
for houses were being constructed. After the morning
break, the employees on the day shift gathered in the
deck area. The number of participants in the work stop-
page grew rapidly to about 100. Company Plant Superin-
tendent Maynard Nisley informed Company President
Mervine that "all employees are sitting down." Mervine
left his office, went to the plant floor, and observed
nearly every employee on that shift "sitting in the deck
area."a
When Plant Superintendent Nisley was informed of
the work stoppage and of the employee's desire to talk
with President Mervine, Nisley left and quickly returned
with Mervine to the deck area. Mervine asked the em-
ployees if they were on or off the clock and what their
problems were. Grimm stated that the problems included
wages and working conditions. Greg Poore said that the
employees wanted to talk and find out what was going
on. Mervine responded by calling Poore a "smart
mouth" and said, "Greg, we could do without you and
we will dismiss you right now." Poore started to leave
to get his tools but was told by his supervisor, Virgil
Joseph, not to leave. 4
s When called by the General Counsel on the first day of the hearing,
John Mervine testified that about 75 people were participants in the gath-
ering on the deck and that a few employees did not engage in the work
stoppage. When called on direct examination on April 20, 1980, Mervine
testified that about 100 people participated in the work stoppage and that
all employees sat down.
4 Mervine described the sitdown incident as follows:
I asked the first questions, are you on . .. our time or on your
time, and without exception I think they were on our time.
Continued
740
NANTICOKE HOMES, INC.
Moore spoke up after Poore was fired and told Mer-
vine to fire him also. Other employees voiced similar
sentiments. Mervine then asked them what their com-
plaints were. Employees Moore, Steve Marsh, Anthony
Taylor, Linda Diane Dawson, and Grimm voiced their
complaints. Mervine asked Grimm if he was the spokes-
man. Grimm said he could be. Mervine then told him to
get a list of complaints together. Grimm testified that
Mervine said, "No young people would run [his] place"
and that he "just would not stand for something like that
to go on in the manner that we were handling it."
Grimm compiled a list of employee complaints and went
into an office location in the plant building to meet with
Respondent's representatives, John Mervine, Embleton,
Nisley, Paul Collins, and Billy Mervine (John Mervine's
son).
Grimm presented the grievances, including the desire
for better working conditions, a paved driveway and
parking lot, and annual raises. In response, Mervine
pulled out Grimm's work record and reviewed it com-
menting that a factor in Grimm's favor was that he
worked even after he had injured his finger. Grimm
cited the training time he had put in at Respondent's
without pay. Mervine then noted a 50-cent-an-hour raise
which Grimm had been granted after the February fire.
Mervine then stated that if Grimm was not happy with
that raise he should immediately get up, leave, and look
for work elsewhere without wasting any time. Accord-
ing to Mervine, "We discussed the three items that Mr.
Grimm had written down as complaints from the em-
ployees. The parking lot, number one; the ability of lead-
men and foremen to grant wage increases or to hire their
own employees and doctor bills." Mervine told Grimm
of the Company's financial problems, including the
recent discovery of Company Controller Don Warnick
that the Company was excessively overdrawn at the
bank. When Grimm requested a wage increase for the
employees, Mervine offered to show Grimm the Compa-
ny's financial records in order to demonstrate the Com-
pany's inability to afford any raises at that time.
At the conclusion of their conversation, which lasted
over an hour, Mervine and Grimm went back out to the
And then I asked, why are you here? What is the problem? And
many things were bantered back until-there was maybe 100 people
there, until nothing was very clear. One man complained about his
medical bills ....
Larry Willey complained that his baby was sick and we hadn't
paid the medical bills. Because, at Nanticoke Homes we pay all
medical bills for them and their whole family ....
Then I asked them if they would please let's find somebody to be
a spokesman. Greg Poore made some very smart remark. I can't
recall the remark, but I said to him, Greg, we could do without you,
and we'll dismiss you right now ....
Then Grimm spoke up, and I said, Mr. Grimm, are you going to
be the spokesman, and he said, I can be. And he conversed with a
few of the others and stepped forward as a spokesman. And so I
said, all right tell us what is the problem.
And he said, I think three things. We have not been in the new
plant many months, and we have not paved the parking lot. And
there was one complaint about the parking lot, it was a bad place to
park their cars, it was muddy at times ....
The other thing was they complained-Mr. Grimm complained
that the leadman did not have the authority to grant raises. One
other item, was the third one, I can't recall, and they-then I sug-
gested they come in for personal contacts and they agreed for Mr.
Grimm to talk for the group.
deck area of the plant where the employees were still
seated. Grimm explained Mervine's responses. Mervine
then informed the employees that he would be willing to
discuss any personal problems with any employee on an
individual basis, and directed them to take an "extended"
lunchbreak of I hour after which they were to report to
work at 12 noon.5 He asked them if they were off the
clock and the employees replied that they were. At one
point, Paul Moore stood up to say something and Mer-
vine instructed him to sit down and be quiet, that Moore
had already said too much that day.
During the lunchbreak, groups of employees engaged
in discussions. About 10 to 15 congregated in the parking
lot and concluded that Mervine's answers were unaccep-
table. That group included Greg Poore, Erik Smith,
Mike Faulkner, Paul Moore, Diane Dawson, Mark
Murphy, and Lawrence Grimm. Mervine approached
them and asked if they would be returning to work.
Grimm told Mervine that they were not satisfied with
his answers to their complaints and that they wanted to
do more talking. Mervine replied that he "didn't know
how he could give him any better answers than that at
the moment" and that they would have to decide "if
you're going to go to work or not." Grimm responded
that "he though he could get the people to go back to
work."
Mervin returned to his office and the "parking lot"
group of employees reentered the plant where they
found about 25 other employees already gathered around
the deck area. An announcement came over the loud-
speaker that the employees should meet in the deck area.
Mervine arrived with the employees' paychecks (it hap-
pened to be payday). Mervine announced that whoever
wanted his check could come and get it and leave. When
the first person stepped up to take his paycheck, Mervine
added, "You know, if you take this check and walk out,
you're gone." The check was returned and the other em-
ployees rfused to accept their checks and returned to
work. Respondent's version follows:
Shortly after Mr. Mervine returned to his office fol-
lowing this conversation, plant manager Nisley re-
ported to him that the employees had still refused
to return to work. Since it was the company's
payday, Mr. Mervine instructed his secretary to
bring all of the week's paychecks to him, which he
placed in a box and took to the timeclock in the
plant. Mr. Mervine handed the box of paychecks to
Mr. Nisley, and informed the employees "that . . .
the time for discussion has finished. Either we are
going to get back to work or pick up your pay-
checks." Mervine warned the employees that if they
picked up their paychecks at that time, they could
leave the plant since in his opinion it would consti-
tute a voluntary resignation on their part. No one
chose to accept their paycheck and leave the plant,
and everyone returned to work shortly thereafer.
Mr. Mervine spent the rest of the day speaking to
During Grimm's meeting with Respondent, the employees continued
their work stoppage. Most of them punched out on the timeclock around
10:15 a.m., continuing their sitdown strike.
741
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
individual employees. About an hour after the em-
ployees returned to work, Mervine approached Paul
Moore and said, "I'm surprised at you, Paul."
Moore responded "Oh yeah." Mervine said, "I still
don't understand your complaint." When Moore
began giving an explanation Mervine walked away.
C. Linda Diane Dawson 's July 20 Conversation With
Mervine
Among the employees who met with Mervine on his
invitation to a one-to-one discussion with the employees
was Linda Diane Dawson, who was called in to speak to
Mervine around 2:30 p.m. on July 20. She met with Mer-
vine and Nisley. Mervine asked Dawson what her com-
plaint was. She told him she deserved a pay raise. Mer-
vine told her she had agreed to her July 13 pay raise and
therefore he did not understand her gripe. Dawson then
discussed with Mervine the problems she was having
with the other insulators on the assembly line and that
she had told his son, Paul Mervine, and Nisley about the
problems several times but nothing had been done. Mer-
vine then told Dawson that he had heard that she was
the instigator of the sitdown. Dawson said that she had
arrived late, around 9:20 a.m., and did not know about
the sitdown until that time. Mervine told her that she
had a big mouth and a problem. He then said that she
had to learn to keep her mouth shut and do her work if
she wanted to keep her job. When Dawson was asked if
she had other problems she began to discuss fixing the
house she bought from Respondent. Mervine told her to
discuss the house on her own time. Before ending the
meeting, Mervine again warned Dawson to keep her
mouth shut, to go back to work, and to do her job.
D. Moore's July 30 Conversation With John Mervine
Moore testified that on July 30 Mervine approached
him in the warehouse while Moore was on his forklift
and said, "I heard you're for the Union." Moore replied,
"I don't know what you're talking about on company
time." Mervine then asked Moore what he meant, and
Moore told Mervine that he did not want to give Mer-
vine a reason for firing him (Moore). Mervine then asked
if Moore "really thought that he needed a reason to fire
[Moore]." Moore replied, "I guess not." Moore then
started the forklift as if to go back to work whereupon
John Mervine raised his voice, pointed his finger at
Moore's chest and nose at close range, and said, "Shut
that thing off and don't start it until I tell you to."
Mervine then asked Moore, "Did you go to the union
meeting on Saturday?" Moore told him he had, and Mer-
vine then said, "So you're for the Union?" Moore said,
"John, you don't give me much choice." Mervine said,
"What do you mean?" Moore said, "The way you treat
people around here." Mervine then raised his voice again
and told Moore that he did not want to hear him speak-
ing a word about the Union on company time. Moore
said, "You know I won't, John." At that point Mervine
walked off and Moore went back to work.
Employee Gene Hughes testified that on July 28,
around 10:30 a.m., he was in Mervine's office, and Mer-
vine told him that he heard "they was having a meeting
and I told him I ain't never heard nothing about it. He
said, 'Good. Whoever attends the meeting will be fired.'
So I told him I was going on vacation and he signed my
check and I left." Hughes then went on a 2-day vacation
and sometime after his return he had a conversation with
John Mervine inside the plant. He testified as follows:
I came out of the house to talk to Mr. Mervine. He
asked me about my hardhat. I didn't have any hard-
hat on. I told him I left it in my house. He said he
heard I liked the word Union around here. The
next time he hears the word Union I was done.
Then I told him that Shirley Crenshaw had called
me, a "black nigger." He laughed and said he
couldn't believe she said nothing like that. He said
he would talk to her. I don't know if he ever did.
Hughes was asked if Shirley Crenshaw ever apolo-
gized to him for that remark and he replied that, on the
following Monday while he was speaking to John Mer-
vine, Crenshaw came up to him and apologized.
E. Linda Diane Dawson's July 30 Conversation With
John Mervine
Linda Diane Dawson testified that she had a conversa-
tion with president Mervine, concerning a 3-day suspen-
sion she received on July 30 for spending excessive time
away from her work area. According to Dawson, she
encountered Mervine in the office waiting room that
morning while awaiting a meeting to discuss her suspen-
sion with Company Personnel Director Lester Kraft.
When Dawson explained to Mervine why she was wait-
ing for Kraft, Mervine said, "You don't have to talk to
him about your suspension, I'm the one that authorized
it." When Dawson asked Mervine why he did so, Mer-
vine replied, "For your union activities."
Mervine's version of that conversation follows:
I said, Diane, what can I do for you? She said, I
want you to erase my suspension and let me go
back to work-
I said, Diane, I cannot do that. We have a plant su-
perintendent who suspended you, and he feels like
he has just reasons to do so, and I would hold no
credence with my plant superintendent if I were to
rescind whatever he did, so that's not possible
She said, why was I suspended? I said, It was very
clear on your report, that you were suspended for
walking all through the plant, not at your work sta-
tion, and not doing your work ....
She said, that's not the case, why don't you tell me
that you suspended me because of my union activi-
ties?
And I said, what union?
She said, well, you're going to reinstate me or I'm
going to go to the Labor Board.6
6 I credit Dawson, who testified forthrightly, consistently, and without
hesitation. I also credit Gene Hughes, who also testified in a straightfor-
Continued
742
NANTICOKE HOMES, INC.
F. The Conversation of July 30 Between John Mervine
and Lawrence Grimm
On July 30, shortly after 7 a.m., Paul Moore and An-
thony Taylor were in the employee's parking lot collect-
ing signatures on the union petitions. Employees Grimm,
Poore, and Erik Smith arrived. John Mervine ap-
proached Grimm in the parking lot. At that point, all of
the employees except Grimm left the parking area and
reported to work.
Mervine said to Grimm, "Mr. spokesman, I'd like to
talk to you." Mervine then asked Grimm if he attended
the Saturday meeting. Grimm replied, "What meeting?"
And Mervine said, "You know what meeting." Grimm
then admitted attending the meeting, after which Mer-
vine asked what was said and who was there. Grimm re-
sponded that he did not have to reveal that information,
and asked if he could be excused to report to work inas-
much as he was already late. Mervine told Grimm that
he could not work there anymore and that, if Grimm
was not willing to work with Mervine by giving the
names and information on the meeting, Grimm was not
part of Respondent anymore. Grimm asked if he was
fired. Mervine said, "No, you have a week off." Again,
Mervine asked why Grimm was not willing to work
with Respondent and why Grimm was disrupting the
plant and the employees. Grimm tried to explain that he
was not solely responsible and Mervine again informed
Grimm that, if he was not willing to work with Mervine
or to tell him anything, then the week's suspension stood.
Mervine also stated that the week off was for disrupting
employees on July 20 and for making them sit down.
After a pause, Mervine said, "I'll give you a 75 cent
raise if you can go inside the plant and get me 100 names
of people willing to organize against me." Grimm said,
"Sure, so you can go through and fire them all. That
would be it for them." Mervine responded, "Well, you're
pretty smart, aren't you?" Grimm responded, "Yes, I'm
pretty smart." After Grimm turned the offer down, Mer-
vine told Grimm he would still have a week off and in-
quired as to how he got to work. When he was told that
Grimm rode with Greg Poore, Mervine told him that he
would go get Greg and make him stop work, punch out,
and take Grimm home.
Grimm further testified that Mervine took a few steps
towards the building and stopped and there was a long
ward, plain, and clear manner. I credit Paul Moore and Larry Grimm for
substantially the same reasons. Whenever their testimony conflicted with
that of John Mervine, who was alert, intelligent, and aware of more that
was going on in the plant among his employees than he apparently was
willing to admit, I credit them and not him. I surmise that, although he
was not totally aware of his employee's rights to engage in union activity
before consulting with counsel about the hearing in this matter, he was
quick enough and intelligent enough to grasp most of what was involved
and what legally could have or should have been done or said by the
time of the hearing. Although counsel for Respondent attempts to make
much of the fact that the word "Union" was not mentioned during the
discussions of the employee meetings, and attempts further to translate
that into lack of company knowledge of union activities, I am convinced
both by the testimony of the credited witnesses and by the admissions of
Respondent that Respondent was aware of the employee's protected con-
certed and union activities during the time they were occurring or short-
ly thereafter. In addition, I believe the small-plant doctrine is applicable
in the circumstances of this case. Florida Cities Water Company, 247
NLRB 755 (1980); Syacuse Dy-Dee Diaper Service, 251 NLRB 945 (1980).
pause. He said that Mervine then walked back to him
and said, "If I was willing to go in and not say anything
to anybody, and keep my mouth shut, and that during
this time he would have people watching me, I could go
back to work. I wouldn't have a week off." ?7 Mervine
told Grimm that if he would go in and keep quiet and
not say anything that he would pay him for the 2 hours
that they had stood out there and that everything would
be all right. Grimm said that when he returned to work
his fellow employees asked him many questions but he
answered none.
Grimm completed his testimony in this regard by stat-
ing that Mervine told him in the parking lot that Grimm
was one of his best workers, and that he had a good
record, but "[a]s far as anybody's concerned, this is hap-
pening to you because you disrupted my workers on
July 20 and that is, as far as anybody else is concerned,
why I am doing this to you." Grimm said, "Well, me
and you both know that you're doing it because we're
trying to organize in the plant." And Mervine respond-
ed, "Yes, but that's just between me and you."
G. Paul Moore's Conversation With McKy Mervine
On July 30 during a lunch break McKy Mervine,
Company President John Mervine's son who was also
employed at the plant, asked Moore to speak with him
privately. He and Moore walked outside and, after some
words concerning McKy's law school plans, McKy said
he was going to work for his father for a year and try to
get into law school again the following year. McKy then
told Moore, "I heard you're for the Union." He then
asked Moore if Moore knew he was number one to go
out the door. Moore responded by trying to explain his
situation in the plant which brought about the union ac-
tivities. McKy then said, "My dad is not going to be in
the plant anymore. He's making me a grievance person."
McKy told Moore that he thought Moore was a pretty
good guy and would relay his impressions to his father.
McKy then asked Moore if Moore could give him the
names of other employees that were at the meeting Sat-
urday. Moore refused to divulge any of the names to
McKy.
H. Paul Moore's Conversation With Merle Embleton
Vice President Merle Embleton requested that Moore
meet with him. Upon meeting, Embleton asked Moore if
he was a born again believer. Moore replied that he was.
Embleton asked Moore how he could get himself into
such a mess and Moore asked if he was referring to the
Union. Embleton replied in the affirmative and then pro-
ceeded to tell Moore that his actions were against his re-
ligion and that they were wrong. Embleton then told
Moore that if he would change his mind he would have
I In his testimony, Grimm recalled that he asked Mervine after being
informed that he was to be off a week whether he was to come in fol-
lowing that week and go back to work or whether he was to report to
Mervine personally. He said that Mervine replied, "No. Before you can
come back to work, you come see me next Friday in my office. We'll
write up a piece of paper that you have to sign stating that you will have
nothing to do with organizing in my plant. You have to sign that paper
before you can come back to work for me."
743
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strong pull with the Company. Moore replied that he did
not feel that there was any alternative considering John
Mervine's attitude. Embleton said that before Mervine
would let the Union in he would close down and pull
out, and concluded by asking Moore to think about
changing his mind. Moore said he would think about it.
I. The Layoff of August 3
Respondent contends that the layoff of August 3
which resulted in the second shift being dropped com-
pletely was caused by the following, as stated by Re-
spondent:
By the end of July the company was faced with
poor quality homes, which were reflected in cus-
tomer complaints and fewer final settlements, a de-
clining housing market which showed in poor sales
and concomitant decline in the backlog of houses
on order, and an alarming cash shortage. 8
The General Counsel, on the other hand, contends
that the August 3 layoffs were unlawful; that, "after the
numerous unsuccessful attempts at reasoning, bribing, ca-
joling and threatening employees to get them to 'work
together' with Respondent, Respondent decided to lay
off employees on the shift which, coincidentally, had
participated in the July 20 work stoppage."9 On August
3, Bill Smith told Paul Moore that Plant Superintendent
Nisley had told him that Moore had been laid off. Also
on August 3, drywall, roof, and siding boss Virgil Joseph
talked with some of his crew after work. According to
Poore and Grimm, Joseph told them that the following
week, the week beginning August 6, the night shift
would be laid off for that week but would return the
week after that and work on the day shift while other
groups of employees would be off; and that no one
would work at night anymore. Joseph told them that the
action was necessary because the employees were build-
ing too many houses for the field crew to set up.
On Monday, August 6, and Tuesday, August 7, certain
employees, including Grimm, Moore, Eugene Hughes,
Erik Smith, and Steve Marsh, were told that they were
permanently laid off. Other employees, including Greg
Poore, Buddy Walls, and Anthony Taylor, were asked to
report to work and did.
Insulator Linda Diane Dawson, who had been permit-
ted to work full-time days rather than on an alternating
schedule between day and night, was told by her super-
visor, Shirley Crenshaw, on August 3, that she thought
the night shift was going to be laid off. On August 6,
Dawson reported to work on the day shift as usual. And
at or about 7 a.m., Crenshaw told Dawson that the su-
pervisors were going to be called in to decide which em-
ployees they wanted to keep and which to lay off. Cren-
shaw also told Dawson that, although she was leaving
' It seems more than mere coincidence that this situation would occur
so soon after the July 20 sitdown and July union meetings. It appears that
the Company doth protest too much.
9 Most employees who worked in the plant worked the day shift one
week and the night shift the following week on a continuing alternating
basis. The group of employees who had worked during the day shift on
July 20 also worked the day shift on August 3, and would have worked
at night the following week beginning August 6.
Dawson's name on the list to be retained, she did not feel
that Dawson would be retained because John Mervine
had the overall say on who would be retained and who
would be laid off. At the end of her shift on August 6,
Dawson was told by Plant Manager Nisley that she
would be laid off. Dawson asked the reason, inasmuch as
she had seniority, but Nisley told her that she would be
given the reason by a phone call and by written notice
which would follow.
Dawson returned to the plant on August 7 and told
John Mervine that she needed a written reason for her
layoff in order to get food stamps. Mervine and Dawson
went to see Lester Kraft, personnel director. Mervine
asked Kraft if he knew anything about putting in writing
the reasons for the layoff. Kraft said that he did not and
that he did not plan on giving anybody any written rea-
sons. Dawson then went to see Nisley and told him that
she had received neither a phone call nor a written ex-
planation for her layoff. Nisley referred Dawson to Kraft
but Dawson told him she had just seen Kraft. Nisley
then volunteered to telephone Kraft. Dawson returned to
Kraft's office where she heard Kraft telling Nisley that
he was not going to give any written reasons for layoffs
and that if Nisley wanted to do so he could. Kraft then
told Dawson that he was not going to give anything in
writing and that if she wanted something in writing she
should see his secretary, "Emily." Dawson told Kraft
that he was giving her the runaround.
Dawson called Emily, who referred her to McKy
Mervine. She talked to McKy Mervine, explaining to
him the need for a written explanation of her layoff.
McKy replied that they were not going to put anything
in writing. Dawson asked him why she was laid off.
McKy responded that the night shift was laid off.
Dawson told him she worked days only and that she had
seniority over all the other insulators. McKy told her
that the supervisors had listed who would be kept and
who would be laid off. Dawson told McKy that her su-
pervisor, Crenshaw, had told Dawson she would not be
laid off, whereupon McKy responded that Respondent
had "to consider our troublemakers" and cited Dawson's
3-day suspension. Dawson told McKy that the suspen-
sion had been for union activities and was illegal, and
asked if she was laid off permanently because of the ear-
lier 3-day layoff. McKy said, "No. Wait a minute. You're
putting words in my mouth."
Also on August 3, just before the end of the day shift,
Bill Smith told Moore that Nisley told him that Moore
was laid off. Smith told Moore that, when he was told
that, he asked Nisley if Moore "could be kept on and
Doc." Nisley replied, "No way, if I do it with one, there
will be others complaining to do it."1 °
'o As previously indicated, I credit Moore, who testified without hesi-
tation and in a calm straightforward manner. Nisley's response reveals
that, contrary to Respondent's contention, the better workers were not
left on the payroll, nor did Respondent follow its own immediate super-
visors' recommendations with respect to the layoffs.
744
NANTICOKE HOMES, INC.
J. The August 7 Union Meeting at the Farmington
Fire Hall
On August 7, Paul Moore, who was one of the perma-
nently laid-off employees, talked to Union Representa-
tives Bob Reynolds and Bob Brown and they agreed that
Moore and a couple of others should go to the end of
the lane at the plant and invite employees to a meeting
that was scheduled for the Farmington Fire Hall that
day starting at 3:30. They did go to the plant and invite
many employees to attend the meeting. At 3:30, at the
Fire Hall, they saw Bill Smith and Paul Collins, who
were wearing yellow shirts with the word "Supervisor"
written on them. Moore warned Larry Grimm, who had
been speaking with them, that he should not be saying
too much to them. Collins and Smith asked if they could
come in to the meeting. Moore replied in the negative.
According to Moore, Paul Collins said to Bill Smith,
"Come on, let's go in and find out what's going on."
Moore then went into the Fire Hall and told Union Rep-
resentative Bob Reynolds that Collins and Smith were
threatening to come in and asked whether Reynolds was
going to allow them in. Reynolds instructed Moore to
tell Collins and Smith that Reynolds would file charges
against them if they attempted to come in and that he
would have them thrown out. Moore went out and told
Collins and Smith what Reynolds had said and one of
them replied, "We're not going to cause any trouble.
Why can't we come in?" Moore repeated what Reynolds
had told him. Collins and Smith then went back to the
parking lot and remained there at a distance of about 100
to 150 yards from the firehouse for about an hour.
K. The August 9 Taped Meeting Between Paul Moore
and John Mervine
On Thursday, August 9, Paul Moore met with John
Mervine in Mervine's office. Moore surreptiously carried
a tape recorder in his boot and taped the first 20 minutes
of his conversation with Mervine." Moore testified that,
in the meeting, Mervine asked him if he was a "born-
again believer" and that he replied that he was; where-
upon Mervine asked him how he could get himself into
such "a mess like this." Moore asked Mervine if he was
referring to the Union and Mervine said, "Yes." Mervine
told Moore why he thought that what Moore was doing
was against their religion and wrong. Mervine then said,
"I forgot. McKy wanted to be in on this conversation."
Mervine asked Moore if he knew that McKy Mervine
had been put in charge of personnel.
Mervine asked whether Moore had cards to get signed
and Moore replied that they had petitions. Mervine
asked, "You carried a petition, didn't you?" Moore re-
" Counsel for the General Counsel offered the tape into evidence.
Counsel for the Respondent objected to the offer of admission. The tape
was received, not as primary evidence, but only for the purposes of de-
termining credibility or, if needed, to jog the witnesses' memories. The
ruling was based on the fact that the two participants in the conversation
that was recorded were present and able to testify regarding that conver-
sation and indeed did so testify. The tape was played at the hearing by an
employee of the Federal Bureau of Investigation who qualified as an
expert in removing interferences from tapes. Although he considered the
tape (after being processed in the Bureau's laboratories) to be of good
quality, I found it to be for the most part unintelligible and therefore not
usable in resolving credibility issues.
plied in the affirmative and said that he was one of six
employees who carried nine petitions. Mervine then
asked him how many signatures he had gotten on the pe-
titions. Moore said "about a fifth of them." Mervine then
asked him how many signed and Moore said "a little
over 100, I think 116." At that, Mervine raised his voice
in surprise and said, "116 names? You got almost the
whole plant." Moore replied, "Basically, but not really."
Moore then told Mervine, "You've laid off half of the
ones that were for the Union, so that you don't have to
worry about majority now, right? You can't hardly take
me back now because I will help make a majority,
right?" Mervine did not respond. Moore asked him what
the chances were of his getting back after this was all
blown over and Mervine replied, "I didn't want to fire
anybody, Paul. I couldn't fire you. I couldn't fire Diane
Dawson. I know that you know that."
Mervine then told Moore "about how he had been
through it [union organizing] two years ago and had paid
a lawyer $5,000 to keep him out of trouble." At one
point Mervine mentioned James Hoffa and how terrible
unions were-how they slash people's car tires and kill
and hang people. And then Mervine told him that "the
last time there was union trouble he had received phone
calls at home saying how that-threatening his family
and stuff." He repeated, "Before I'd let the Union in
here, I'd close down, sell the place, and move away.
What good is all this without my life?" Moore then
asked Mervine who had made threats on him and Mer-
vine replied, "You." Moore said, "You mean the
Union?" Mervine said, "No, the people from the plant."
Then there was further conversation leading up to
Moore's asking Mervine, "You mean I was fired for
what happened two weeks ago?" Mervine replied,
"That's what you were fired for, Paul; that's why Diane
Dawson was fired; that's what nearly all the ones that
were dismissed were for, an illegal sit down strike."
Moore asked Mervine why he had waited 2 weeks.
Moore said, "I had worked two weeks; worked my butt
off two weeks. Why did you wait two weeks?" Mervine
replied that he had to check with what he could do le-
gally. Mervine said, "We did what we had to do, when
we knew we were in the right." Mervine then told
Moore, "I didn't put you on the street, you put yourself
on the street, you put yourself out there."
Moore told of his conversation with Billy Smith
wherein he was told that Smith asked Nisley if he could
keep Moore on and let Doc go because Moore could run
circles around Doc. Mervine responded, "Doc did have
more time than you, didn't he?" Moore said, "Yes, he
did; but Billy could have said the same thing about
Mickey Faulkner. He'd only been there three or four
months."
As the meeting ended Mervine told Moore that if he
would change his mind he would have strong pull with
the Company. Moore responded that he did not feel that
"there was any other way, with John Mervine the way
he was." Moore said that Mervine also told him, "Before
I let a union in here, I'd close down; pull out." Mervine
then asked Moore again about changing his mind and
Moore told him he would think about it. Moore thanked
745
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him "for talking to me like a human being" and then left
Mervine's office.12 Employee Anthony P. Taylor testi-
fied that, on or about August 7, he overheard a conver-
sation between Supervisors Virgil Joseph and Joe
Hayward. He heard Joseph tell Hayward that it did not
do any good for Joseph to pick out the people he
wanted to lay off because John Mervine changed it the
way he wanted it. Employee Joseph "Buddy" Walls tes-
tified that he overheard Joseph tell Hayward that, after
he submitted his list of names of people he wanted to
keep and people he would be willing to lay off, the list
was changed.
On or about August 10, Taylor was in the breakroom
when John Mervine entered and asked Taylor how he
felt about the Union. Taylor said he felt it was the only
way employees would get ahead. Mervine responded the
Union could not do Taylor any good. When Taylor said
he did not believe that, Mervine said, "Well, can the
Union find you a job . . . no, the Union can't find you a
job, ask Steve Marsh." 13 John Mervine recalled having a
conversation with Anthony Taylor. He said he had asked
Taylor what the sticker on his hat meant and Taylor re-
sponded that there was going to be an election and the
Union was going to get in. Mervine admitted that he
asked, "What will the Union do for you Mr. Taylor that
Nanticoke is not doing?" Mervine testified as follows,
"He said the Union would guarantee him jobs, and I
said, 'If you think the Union would guarantee your jobs,
ask the people who don't have jobs."'
Mervine said that Walls was present during that con-
versation. When Mervine was asked whether he recalled
asking Walls whether he had gone to union meetings, he
responded, "Not to my knowledge, I certainly did not
do that, that I would never do because we were well
versed at the time what we could discuss and what we
could not discuss." Mervine denied asking Walls that
question but he admitted discussing the advantages and
disadvantages of unions.
Shortly after his talk with Mervine, Supervisor Virgil
Joseph kept prodding Walls to produce more, telling him
that they had to produce three houses a day or he would
find soneone else to do it. Such prodding had not oc-
curred prior to the advent of the organizational drive.
The following Monday Joseph apologized to Walls
about his (Joseph's) behavior Friday stating that he was
out of line. Walls acknowledged the apology but then
Joseph asked Walls what the Union would be doing for
him. Walls replied that the Union would get employees
raises and sick leave. Joseph closed by saying it was
Walls' decision.
L. Mervine's Statements in October and December
Anthony P. Taylor testified that, at or about a week
before the October 19 Board-conducted election, he
heard that a union representative and one of Nanticoke's
supervisors had a fight. At or about 10 a.m., Taylor said
he was standing in the warehouse when Mervine walked
" As previously indicated, I credit Moore whose memory was good
and who testified without hesitation, candidly, and unevasively. The same
cannot be said of John Mervine.
"S Marsh was a roofer who had been permanently laid off on August
3.
up to him and said, "You are the cause for this." Taylor
responded, "Cause for what?" Mervine said, "For the
fight this morning." Taylor said, "How do you figure I
am the cause for it?" Mervine responded, "You brought
those people here, you are the leader." When Taylor
denied being the leader or being present Mervine said,
"Oh, you are the leader, that is why you were at the
hearing."' 4 Taylor told Mervine he was subpoenaed and
had no choice. Mervine then poked at the Teamsters
stickers that Taylor had on his hat and told Taylor that
he would not have "these kind of people" in his plant
and "I will remember you for this" and walked away.
Mervine admitted pointing his finger at Taylor's head
and touching the sticker on Taylor's helmet. The sticker
read, "Smile, the Teamsters are coming."
Roy Austin and Bob Reynolds, Teamsters representa-
tives, and employee Paul Moore were at Respondent's
gate on the morning of the election (October 19). John
Mervine approached them and told them that the laid-off
employees would not be permitted on the premises or
nearby. Moore asked John Mervine about going back to
work and Mervine stated, "No way, under no circum-
stances will you ever work for me again. You chose the
wrong side, you chose the Union and that's the wrong
side."
Later that day, Mervine again approached discharged
employees Moore, Grimm, Eric Smith, and David
Vernon, who were at the gates, and asked them how
they had been and, directing his remarks to Moore,
asked him what he thought the chances were of getting
back in to work for Respondent. Moore replied that it
really did not matter. Mervine called him a liar; where-
upon Moore said that he would not be there voting
unless he thought the chances were pretty good. Mer-
vine then said, "You will never, never get in there . . .
it'll be you or me, but not both of us in the plant."
Walls testified that, at a meeting in December, John
Mervine told the group that he had enough house orders
to last through June 1980.
M. The Supervisory Status of McKy Mervine, Shirley
Crenshaw, Paul Collins; Carl "Billy" Smith, Virgil
Joseph, and Paul Mervine
Respondent denies that Paul Mervine, McKy Mervine,
Paul Collins, Carl "Billy" Smith, Shirley Crenshaw,
Virgil Joseph, and Paul Mervine are supervisors.
McKy Mervine is John Mervine's son who was put in
charge of personnel and appointed Respondent's employ-
ee grievance representative. John Mervine stated that
McKy Mervine had asked to be present during the
August 9 taped conversation between Mervine and
Moore. McKy Mervine did not wear a blue shirt as
worn by workers or a yellow shirt as worn by supervi-
sors. He wore street clothes in the plant as did Respond-
ent's top management.
Respondent's position is that McKy was not paid any
salary and that he worked when he "felt like it." McKy
Mervine testified that he spent no more than 4 to 5 hours
a week at the plant. Respondent's organization chart
" The NLRB preelection hearing.
746
NANTICOKE HOMES, INC.
shows that for July and August McKy Mervine was part
of Respondent's organization as "John Mervine II." John
Mervine testified that McKy Mervine "was in every part
of the plant, in offices, everywhere. He may have been
in the personnel office for a day or two, I don't know."
The testimony reveals that McKy Mervine was con-
sidered by the employees to be a member of management
and, indeed, McKy Mervine held himself out to be a
member of management and not a rank-and-file worker. I
find that McKy Mervine is an agent of Respondent.
Paul Mervine is John Mervine's brother. On Respond-
ent's organization chart Paul Mervine appears as an as-
sistant to Plant Manager Maynard Nisley and on the
same level on the chart with admitted supervisors John
Meredith and Barry Groton. Respondent's computer
printout for all employees as of August 8 shows Paul
Mervine as part of Department 101, plant supervisor. Re-
spondent denies that Paul Mervine was a supervisor.
Diane Dawson testified that, when she met with John
Mervine, Personnel Director Lester Kraft, and McKy
Mervine, Paul Mervine was her supervisor. Kraft agreed
that Meredith and Paul Mervine had arranged that Paul
Mervine would be the supervisor for the day shift and
Meredith would supervise the night shift. Paul Mervine
was introduced to Diane Dawson as her supervisor. She
went to Paul Mervine when she needed help or when
she wanted permission to arrive late or leave early. Paul
Mervine gave her an immediate answer to those requests.
Dawson approached Paul Mervine when she requested a
raise. Paul Mervine also supervised the performance of
the work and saw to it that it was accomplished, and
was responsible for the protection from weather when
the houses were taken to the sites. I find that Paul Mer-
vine is a supervisor within the meaning of the Act.
Shirley Crenshaw had been an insulator during the
day shift and had an accident which affected her abilities
to work with insulation. During late July, she kept time
and performace records for work done by the insulators
and assigned insulators to work areas for a particular
day. She wore street clothes rather than working clothes
or uniforms and, according to Diane Dawson, Crenshaw
made the preliminary decision on which insulators would
be laid off and which would be kept on the payroll. On
Respondent's organization chart Crenshaw is placed on
the same level as those wearing yellow shirts with the
word "supervisor" written on them. Although she is
listed on the employee roster for August 6 as "lead
person on days" in the insulation section of Department
110 and Meredith is listed as the department's foreman,
Crenshaw signed the employee warning slip which was
issued to Dawson on July 27 over the space for "super-
visor's signature." Nisley testified that Crenshaw's job
was to keep track of employees' time and performance,
to place employees into specific areas, and to talk with
employees if their work performance was deficient. I
find that Crenshaw was a supervisor within the meaning
of the Act.
Paul Collins, Carl "Billy" Smith, and Virgil Joseph
wore Respondent's uniform yellow shirts which had the
word "supervisor" printed on them. Collins supervised
framing, Smith the warehouse, and Joseph headed the
dry wall roof and siding department. Joseph was intro-
duced to employee Taylor by Nisley in August of 1977
as Taylor's supervisor. Taylor has since worked under
Joseph. Taylor testified that Joseph has disciplined em-
ployees, recommended that employees be disciplined or
terminated, kept their record of absences, told employees
what jobs to do, and made intradepartmental transfers.
Taylor also testified that Joseph gave permission to em-
ployees to leave early, issued written employee warn-
ings, suspended employees for disobeying direct orders,
and told employees that if they did not produce more
work he would terminate them.
Employee Walls testified that he has approached
Joseph for raises from time to time, who in turn spoke to
Nisely, who obtained final approval from John Mervine.
When Walls asked Joseph for a raise, Joseph replied that
he would see what he could do. Joseph signed recom-
mendations for employee raises which were transmitted
through the plant manager and finally approved by John
Mervine. Moreover, counsel for the General Counsel ad-
duced exhibits showing Joseph's approving his own va-
cation requests. As in the case of Crenshaw, Joseph kept
employee time and production records.
Paul Collins' job functions were similar to Joseph's but
in a different department. Collins was present as part of
the management team on July 20 when employee spokes-
man Grimm met with Mervine and other management
people. There is also uncontroverted evidence that,
when Moore was first hired by Respondent in July of
1977, Nisley introducted Collins as Moore's supervisor.
Carl "Billy" Smith's authority was similar to that of
Joseph and Collins but in a different department. Al-
though these employees wore yellow shirts with the
word "supervisor" on them they did not have the direct
authority to hire or fire. Nothwithstanding, they did
have the authority to recommended promotions, layoffs,
and retentions at times of layoff, to report rule infrac-
tions, and to fill out disciplinary forms recommending di-
cipline. They assigned work and evaluated employees'
performance. They had authority to permit an employee
to come in late or to leave early.
Respondent's position is that the plant production area
is headed by Nisley, with the assistance of Meredith and
Groton, and that they were the only supervisors over the
160 employees who worked two shifts in the plant. It
further contends that, even though the word "supervi-
sor" is on the yellow shirts and yellow shirt wearers
were set apart from the rank-and-file employees, they
were merely "leadmen" and the word "supervisor" is a
misnomer.
I find that Respondent's position is wholly without
merit and that Paul Collins, Carl "Billy" Smith, and
Virgil Joseph are indeed supervisors within the meaning
of the Act.
I find the following conduct by John Mervine to be
violations of Section 8(aXl) of the Act: the July 20 state-
ment to Grimm that Grimm should leave if he was not
happy with his raise (in the circumstances of the work
stoppage of that day which I consider to be protected
concerted activity); the July 20 statement that if employ-
ees took their paychecks they were fired for participat-
ing in the work stoppage; the July 30 statement condi-
747
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tioning Grimm's return to work on his pledging to re-
frain from organizing Respondent's employees; the July
30 statement that the suspension was due to Grimm's dis-
ruptive July 20 action (the work stoppage); the July 30
statement to Dawson that she was suspended for her
union activities; the July 20 interrogation of Dawson
concerning her participation in the work stoppage and
the possibility of her being the "instigator" of the work
stoppage; the July 27 interrogation of Grimm regarding
the map and the Union's July 28 meeting; the July 30 in-
terrogation of Grimm regarding the Union's July 20
meeting; the July 30 interrogation of, and threats to,
Grimm regarding the July 20 work stoppage and
Grimm's participation in the work stoppage; the July 30
interrogation of Dawson regarding the Union's July 28
meeting and the informational flyer for the meeting; the
July 30 interrogation of Dawson regarding her sympa-
thies with respect to the Union; the July 30 interrogation
of Moore regarding his sympathies with respect to the
Union; the August 9 interrogation of Moore regarding
his activities on behalf of, and sentiments with respect to,
the Union; the August 10 interrogation of Taylor and
Walls regarding their sympathies with respect to, and ac-
tivities on behalf of, the Union; the October interrogation
of Taylor regarding Taylor's attitudes toward, and activ-
ities on behalf of, the Union; the July 20 threat to
Dawson to fire her unless she kept her mouth shut and
did her work (in the framework of the work stoppage);
the July 30 threat to Grimm to terminate him unless he
gave Mervine names and information on the meeting; the
July 30 suspension, or threat to suspend, Grimm because
of Grimm's refusal to supply the information on the July
28 meeting; the July 30 threat to Dawson to discharge
employees because of their protected and/or union activ-
ities; the July 26 and 31 threats to Hughes to fire anyone
who attended the employees' meeting; the August condi-
tioning of Hughes' reemployment on the election out-
come; the August 9 threat to Moore to close the plant
because of the Union; the August 9 statement to Moore
that the protected concerted July 20 work stoppage was
the cause of the employees' permanent layoff; the August
9 statement to Moore that Respondent would take retali-
atory action against the employees because of the pro-
tected July 20 work stoppage; the August statements to
Taylor and Walls regarding the futility of choosing a
union; the August threats to Taylor to lay off employees
for engaging in activity in support of the Union; the
August statement to Walls imposing a more restricted
work condition because of Walls' prounion sympathies;
the October threats to Taylor that Mervine would "re-
member" Taylor because of Taylor's prounion sympa-
thies and activities; the October 19 threats to Moore that
he would not be reemployed because of his prounion
sympathies and activities; the July 30 creation of an im-
pression of surveillance by engaging in said interrogation
and by threatening to watch Grimm's activities in the
plant; the July 30 attempt to bribe Grimm in returi. .or
information regarding the employees' protected and/or
union activity; and the July 26 statement to Hughes
which created an impression of surveillance.
The following conduct of McKy Mervine constituted
violations of Section 8(a)(l1) of the Act: the July 30 inter-
rogation of Moore regarding Moore's sympathies with
respect to, and activities on behalf of, the Union; and the
August 7 statements to Dawson that persons were laid
off because they were "troublemakers" referring to the
employees' protected concerted union activities.
I also find Supervisors Collins' and Smith's August 7
activities which created an impression of surveillance of
employees' union activities to be violations of Section
8(a)(1), and Supervisor Embleton's August 2 interroga-
tion of Moore about his sympathies regarding and activi-
ties on behalf of the Union and Embleton's August 2
threat to close the Company before letting a union in to
be violations of Section 8(a)(1). Finally, I find Supervisor
Joseph's August interrogation of Walls regarding Walls'
sympathies and attitudes towards the Union to be viola-
tions of Section 8(a)(1) of the Act.
N. Discussion and Conclusions
Respondent contends that production inefficiencies and
increased customer complaints concerning poor quality
workmanship on houses completed in May and June, re-
sulting in a drop in the number of homes settled, sold,
and paid for in June and July, caused a termination of
the second shift and the big layoff on August 3. Re-
spondent also attributes the August 3 layoff to a declin-
ing housing market, poor sales, and an "alarming" cash
shortage. However, Respondent does not explain why,
just prior to the alleged economic layoffs, Respondent
was busy hiring new employees. According to Respond-
ent's pay records, 60 new employees were hired between
July 16 and August 3. Three were hired within I or 2
days of the economic layoff. In addition, Respondent
began hiring new employees within a short time after the
August 3 layoffs and, contrary to past practice, did not
recall its laid-off employees. Between the August 3 layoff
and February 22, 1980, Respondent hired 60 employees
in its various departments.
From the above and based on my other findings
herein, I conclude that Respondent's permanent layoff of
49 employees and its refusal to recall them was not for
the reasons stated by Respondent but for the purpose of
thwarting the union organizational campaign and to de-
prive its employees of a possible majority vote for the
Union in the then upcoming Board-conducted election.
I also find merit in the Union's objections to that elec-
tion. I find that Respondent's illegal conduct affected the
results of the October 19, 1979, election and, according-
ly, I shall recommend that the election be set aside and
that the Regional Director be ordered to arrange and
conduct a new election.
Respondent's sales records from October 1978 through
January 30, 1980, reveal that 2 months before the layoff,
June 1979, it received the largest number of orders (76)
of any month during that period. In August 1979, the
month of the layoff, it received 71 orders. In June 1979,
Respondent had built 65 houses and had a backlog of
orders on hand of 252 houses which translates to 3.9
months' production. In July 1979, it received 43 orders,
built 67 houses, and had a backlog of 247 houses (3.6
months' production). In August 1979, it received 71
orders, built 47 houses (a dramatic drop from the 67 built
748
NANTICOKE HOMES, INC.
the previous month), and had a backlog of orders on
hand of 272 (5.8 months' production). In September
1979, the orders received were 54, houses built 46, and
backlog of orders on hand 249 (5.4 months' production).
For the period of October 1978 through January 30,
1980, the averages were: orders received 48, houses built
5, and backlog of orders on hand 247 (5.0 months' pro-
duction).
Contrary to Respondent's contention, the above fig-
ures do not indicate a need for the big layoff of August
1979. Those statistics indicating the number of new hires
shortly before and after the layoff convince me that the
reasons offered by Respondent for the August 3 layoff
are pretextual.
The employees who engaged in the August 3 sitdown
strike did not lose the Act's protection under Sections 7
and 13. They had not seized the Employer's property or
engaged in violence against nonstrikers. They conducted
themselves peacefully, and did not use obscene language,
make abusive threats against nonstrikers, or engage in
other acts which would deprive them of the protection
of the Act. The Board in General Telephone Company of
Michigan, 251 NLRB 737 (1980), stated that the law is
clear that, when an employer disciplines an employee be-
cause he has engaged in an economic strike, such disci-
pline violates Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Nanticoke Homes, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Chauffeurs, Warehousemen and Helpers,
I.B.T.C.W.H. of America, Local Union No. 876, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Nanticoke Homes, Inc., has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act by
threatening to discharge employees if they engaged in
protected concerted activities for their mutual aid and
protection; interrogating employees concerning their
union participation and protected concerted activity, in-
cluding strikes and work stoppages for their mutual aid
or protection; interrogating employees concerning their
attendance at union meetings; interrogating employees
concerning their sympathy for and activities on behalf of
Chauffeurs, Warehousemen and Helpers, I.B.T.C.W.H.
of America, Local Union No. 876; creating an impression
of surveillance of its employees by telling them that it
would watch them to learn if they had continued to
engage in activities on behalf of any labor organization;
offering pay increases to employees in exchange for in-
formation concerning the activities of employees on
behalf of the Union; offering pay increases to employees
to discourage activities on behalf of the Union; threaten-
ing to suspend the employment of employees because of
their activities on behalf of the Union; threatening to
close the plant in order to discourage employee activities
on behalf of the Union; threatening to discharge employ-
ees if they engage in activities on behalf of the Union;
suspending an employee because she engaged in protect-
ed concerted activities with other employees for their
mutual aid and protection by participation in a work
stoppage; suspending employees because they engaged in
activities on behalf of the Union; surveillance of employ-
ees who attend union organization meetings; terminating
work shifts in retaliation for employee's membership in
or activities on behalf of the Union; and interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed by Section 7 of the Act.
4. Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act by sus-
pending and discharging employee Linda Diane Dawson
and failing and refusing to reinstate her because of her
membership in and activities on behalf of the Union and
because she engaged in concerted activities and activities
on behalf of the Union and because she engaged in con-
certed activities with other employees for the purpose of
collective bargaining and other mutual aid and protec-
tion.
5. Respondent engaged in unfair labor practices within
the meaning of Section 8(aX3) and (1) of the Act by ter-
minating, discriminating against, refusing to reinstate, or
failing to reinstate the following employees because they
engaged in protected concerted activities for their
mutual aid and protection
page:
Jeffrey Baker
Craig Beebe
Ronald Bounds
William Butcher
Timothy Chambers
Frank Chaloupa
Norman Coverdale
Dean Drosky
Benjamin Ewing
Carol Goodhand
Thomas Greenlee
Lawrence Grimm
Myron Hayes
Harry Haynes
Eugene Hughes
Michael Johnson
Martin Joseph
Paul Kenton
Lloyd King
Lucas Lewis
Steve Marsh
Jim McIntyre
Charles Michaels
Curtis Millman
by engaging in a work stop-
Kenneth Mills
William Mack
David Moore
Paul Moore
Paul Morris
David O'Neal
Kevin Passe
Thomas Parks
Cindy Phelam
Eugene Price
Jefferson Rew
Ronald Ryall
John Shackley
Eric Smith
James Snow
Wayne Sumpter
Loretta Tapscott
David Virdin
N. J. Walsh
Richard Warfield
James White
Ruby Williams
Edwin Williamson
Robert Worthington
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Objections 1, 2, and 3 are meritorious and are sus-
tained.
THE REMEDY
Inasmuch as it has been found that Respondent has
committed unfair labor practices, I shall recommend that
Respondent be ordered to cease and desist therefrom and
to take certain action necessary to effectuate the purpose
of the Act. I have found that Respondent committed
many violations of Section 8(aXl) of the Act, and sus-
749
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pended and discharged Linda Diane Dawson and dis-
charged other employees in violation of Section 8(a)(3 )
and (1) of the Act. I shall therefore recommend that Re-
spondent make them whole for any loss of pay which
they have suffered as a result of the discrimination prac-
ticed against them. Backpay provided herein with inter-
est thereon is to be computed in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977).
As I have found that Respondent engaged in conduct
violative of Section 8(a)(1) and Section 8(a) 3 ) and (1) of
the Act and that such conduct also interfered with the
holding of a free election, thereby effecting the results of
the election conducted in Case 5-RC-10937, I shall rec-
ommend that the election be set aside and that Case 5-
RC-10937 be severed from Cases 5-CA-11273 and 5-
CA-11555 and remanded to the Regional Director for
Region 5 for the purpose of conducting a new election at
an appropriate time to be fixed by the Regional Director.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER'
The Respondent, Nanticoke Homes, Inc., Greenwood,
Delaware, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Terminating, discriminating against, refusing to re-
instate, or failing to reinstate employees because they
engage in protected concerted activities for their mutual
aid and protection by engaging in a work stoppage.
(b) Terminating, discriminating against, refusing to re-
instate, or failing to reinstate employees because of their
membership in and/or because they engage in activities
on behalf of the Union herein or any other labor organi-
zation.
(c) Threatening to discharge employees if they engage
in protected concerted activities for their mutual aid or
protection or in a protected concerted work stoppage.
(d) Questioning employees concerning their participa-
tion in protected concerted activities, including strikes
and work stoppages for their mutual aid and protection.
(e) Questioning employees concerning their attendance
at union meetings.
(f) Questioning employees concerning their sympathy
for and activities on behalf of any labor organization, in-
cluding the Union herein.
(g) Creating an impression that Respondent is spying
on its employees by telling them that Respondent would
watch them to learn if they continued to engage in activ-
ities on behalf of any labor organization, including the
Union herein.
(h) Offering pay increases to employees in exchange
for information concerning activities of employeer on
" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
behalf of any labor organization, including the Union
herein.
(i) Offering pay increases to employees to discourage
activities on behalf of a labor organization, including the
Union herein.
O) Threatening to suspend the employment of employ-
ees because of their activities on behalf of the Union.
(k) Threatening to close the plant in order to discour-
age employee activities on behalf of the Union.
(1) Threatening to discharge employees if they engage
in activities on behalf of the Union.
(mi) Suspending employees because they engage in pro-
tected concerted activities with other employees for their
mutual aid and protection by participation in a work
stoppage.
(n) Suspending employees because they engage in ac-
tivities on behalf of the Union.
(o) Engaging in surveillance of employees who attend
union organization meetings.
(p) Ceasing the operation of work shifts in retaliation
for employee's membership in or activities on behalf of
any labor organization, including the Union herein.
(q) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Linda Diane Dawson immediate and full re-
instatement to her former position or, if such position no
longer exists, to a substantially equivalent job, without
prejudice to her seniority or other rights and privileges,
and make her whole for any loss of earnings suffered by
her suspension and termination in the manner set forth in
the Section herein entitled "The Remedy."
(b) Expunge from the employment record of Linda
Diane Dawson any reference to the 3-day suspension re-
ferred to herein.
(c) Offer to the following employees immediate and
full reinstatement to their former positions or, if such po-
sitions no longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings
suffered by them as a result of their suspension and ter-
mination in the manner set forth in the section herein en-
titled "The Remedy."
Jeffrey Baker
Craig Beebe
Ronald Bounds
William Butcher
Timothy Chambers
Frank Chaloupa
Norman Coverdale
Dean Drosky
Benjamin Ewing
Carol Goodhand
Thomas Greenlee
Lawrence Grimm
Myron Hayes
Harry Haynes
Eugene Hughes
Michael Johnson
Kenneth Mills
William Mack
David Moore
Paul Moore
Paul Morris
David O'Neal
Kevin Passe
Thomas Parks
Cindy Phelam
Eugene Price
Jefferson Rew
Ronald Ryall
John Shackley
Eric Smith
James Snow
Wayne Sumpter
750
NANTICOKE HOMES, INC.
Martin Joseph
Paul Kenton
Lloyd King
Lucas Lewis
Steve Marsh
Jim McIntyre
Charles Michaels
Curtis Millman
Loretta Tapscott
David Virdin
N. J. Walsh
Richard Warfield
James White
Ruby Williams
Edwin Williamson
Robert Worthington
(d) Preserve and make available to the Board or any
of its agents, upon request, all records necessary to ana-
lyze the amount of backpay due under the terms hereof.
(e) Post at its offices and places of business in Green-
wood, Delaware, copies of the attached notice marked
"Appendix."'6 Copies of said notice, on forms provided
'^ 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 Pursu-
by the Regional Director for Region 5, after being duly
signed by Respondent's authorized representatives, shall
be maintained for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Respondent shall take
reasonable steps to ensure that said notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that Objections 1, 2, and 3 be
sustained and that the election held on October 19, 1979,
in Case 5-RC-10937 be set aside and a second election
be held at an appropriate time to be fixed by the Region-
al Director.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
751