Skyline Homes, Inc.

SKYLINE HOMES, INC. 155 WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of their right to form, join, or assist said International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO, or any other labor organization , to bargain collectively. through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities. WE WILL offer to Clyde B . Richardson immediate and full reinstatement, and to William H . Miller immediate and full reemployment, to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay they may have suffered as a result of our discrimination against them. All our employees are free'to become or refrain from becoming members of the above union, or any other labor organization. MURRAY OHIO MANUFACTURING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Skyline Homes, Inc. and United Brotherhood of Carpenters and Joiners of America, Carpenters Union No. 2292.1 Case No. 12-CA-1517. November 14, 1961 DECISION AND ORDER On June 26, 1961, Trial Examiner W. Gerard Ryan issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto, and finding that it had not engaged in certain other unfair labor practices and recommending dismissal of the complaint pertaining thereto. Thereafter, the Respondent and the General Coun- sel filed exceptions to the Intermediate Report and briefs in support thereof 2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications and additions. ' Hereinafter referred to as the Union. 2 The Respondent's request for oral argument is hereby denied as the record , exceptions, and briefs adequately present the issues and the positions of the parties 134 NLRB No. 24. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We agree with the Trial Examiner that the Respondent interrogated and threatened employees in violation of Section 8(a) (1) of the Act, 'and that it unlawfully refused to bargain with the Union in violation of Section 8 (a) (5) and (1) of the Act. However, unlike the Trial Examiner, we are convinced upon a totality of the evidence that Respondent's demonstrated hostility to the Union, rather than eco- nomic considerations, moved it to lay off 16 employees on June 17, 1960, and 2 employees on June 20, 1960.3 We would therefore sustain the 8( a) (3) and ( 1) allegations of the complaint. Our reasons follow. As indicated more fully in the Intermediate' Report, the organiza- tional activity in the Respondent's plant began on June 13, and cul- minated in the Union's acquisition of majority status by the morning of June 17. On the morning of June 17, the Union met with Overman, Respondent's resident manager, and requested recognition and bar- gaining. Overman did not question the majority status of the Union, but stated only that he would need the permission of Respondent's home office at Elkhart, Indiana, before making any commitments on the Union's demands. The parties then arranged for a later meeting. Almost immediately thereafter Overman telephoned Decio, Respond- ent's president, and advised him of the developments. It is conceded that Decio instructed Overman not to meet further with the Union, and that no further meetings took place.- Later that same day : (1) Overman questioned almost all of the employees, either individually or in groups, about the Union; (2) someone in Respondent's home office at Elkhart telephoned Plant Manager Kreisher to ascertain whether Kreisher knew who "the instigators" were; and (3) at the end of the day, Kreisher precipitately laid off 16 of the 33 employees in the unit. At the beginning of the next working day, June 20, Kreisher laid off two more employees. Ten of the eighteen laid-off employees had signed union cards. While Respondent subsequently recalled 10 of the laid-off employees, only 2 of those recalled (Luzader and Haroff) were among those who had signed union cards. Signifi- cantly, both were reinstated after Kreisher had asked Luzader whether Luzader and Haroff had "signed up" and Luzader replied that he (Luzader) had signed up only after the layoff, and that he did not believe that Haroff had signed.' Later, Resident Manager Overman cautioned one employee (Hardin) not to sign anything "that would hurt him or that he would feel sorry for later on," and Kreisher ad- vised another employee (Watts) that "it would make no difference" Unless otherwise indicated, all dates referred to hereinafter are in 1960. The General Counsel contended that the testimony of Erick Anderson would corroborate the above findings He therefore excepted to the Trial Examiner 's failure to make cred- ibility resolutions regarding that testimony. In view of our conclusion herein,- based on other evidence, we do not find it necessary to pass on the General Counsel's exceptions thereon. SKYLINE HOMES, INC. 157 if he had signed a card so long as he did not vote "when the election came."' The complaint alleged that the Respondent laid off the above em- ployees on June 17 and 20, because of their union activities and/or in order to undermine the majority status of the Union, thereby vio- lating Section 8(a) (3) of the Act. The foregoing facts, including those found by the Trial Examiner in connection with the 8(a) (1) and (5) violation, supply, at the very least, prima facie evidence in support of the 8(a) (3) allegations of the complaint. While the. Respondent claimed that the layoff was economic in nature and had'_ been planned in advance of union activity and Respondent's knowledge. of such activity, the objective facts do not support this claim. We note in this connection that Overman and Kreisher testified that dur- ing the several weeks preceding the June 17 layoffs Respondent con- templated a mass layoff, allegedly due to a normal seasonal slump in the industry and to a failure of the employees to meet adequate pro- duction standards. They further testified that on Monday, June 13, Overman instructed Kreisher to prepare a list of employees to be laid off; that the list was completed and submitted to Overman on June 15; and that the criteria used for retaining employees were "capability" and "versatility." The Respondent thereby contends that the decision to lay off a group of employees was reached on June 13, that the em- ployees to be laid off were selected on June 15, and that its first knowl- edge of union activity took place on June 17. However, the record shows that the Respondent moved to a new plant in the same city about May 1; that it advertised for additional employees in a local news- paper on May 30 and 31; and that between June 1 and 17, inclusive, the Respondent in fact hired or rehired 15 employees,' thereby in- creasing its work force to a total of 33 employees.' We find it incredible that the Respondent could, during the weeks preceding June 17, simultaneously contemplate hiring 15 employees and laying off 18 employees, thereby preparing for a seasonal slump by a net reduction in force of 3 employees (2 of whom were recalled by June 21). It is equally unreasonable to believe that such a major layoff (directly affecting half of the plant employees) was predicated upon the tests of "capability" and "versatility" and necessitated by 6 Overman testified that at the initial meeting between the Union and Overman, elec- tion procedures were discussed ; that he later told employees that "an election was In- evitable"; and that while "we would never have any way of knowing how they voted, we would appreciate their support in voting out the Union " 9 Five on June 1 ; two on June 6 ; four on June 7 ; one on June 10; one on June 13 ; and two on June 14. 7 Uncontradicted testimony in the record establishes that group leaders Erick Anderson, Clyde Newman , and Clyde Turner and Plant Foreman Paul Etzcorn were empowered to responsibly direct employees in the performance of their work, and to discharge employees if need be, and such authority had In fact been exercised Accordingly, we find in agree- ment with the Trial Examiner, that they were supervisors, and they are not included in the complement of its 33 employees noted above. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unsatisfactory production rates as alleged by the Respondent. Of the 16 employees laid off on June 17, 3 had been hired on June 1, 1 on June 6, 4 on June 7, 1 on June 10, 1 on June 13, and 1 on June 14. Thus 11 of the 16 had been afforded less than 3 weeks to demonstrate their "capability" and "versatility," and 3 had a week or less oppor- tunity to do so.8 Furthermore, of the employees laid off, 10 were subsequently recalled .9 We further disagree that the economic information introduced by the Respondent (and set forth in the Intermediate Report) establishes the purported motivation for the layoffs. The data cited therein re- late only to a period after the layoffs and additional information in the record indicates that the Respondent's volume of business and orders received at the time of the layoffs were relatively similar to those of the preceding several months. Moreover, three employees (Bolinger, Hardin, and B. Lloyd) all testified that Kreisher called a meeting of employees about June 14 to urge increased production in order to keep up with incoming business. In view of the foregoing facts, including the precipitate nature of the layoffs with no warning to the employees on the same day on which the union demand was made and the other unfair labor practices, we conclude that the Respondent laid off the named employees for reasons of union membership and activities and thereby violated Section 8(a) (3) and (1) of the Act. THE REMEDY As we have found, in disagreement with the Trial Examiner, that the Respondent engaged in unfair labor practices in violation of Sec- tion 8 (a) (3) and (1) of the Act; we will order, in addition to the remedy recommended by the Trial Examiner, that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We will order that Respondent offer Melvin L. Bacon, Bob Knight, Bruce Lloyd, Robert W. Lloyd, Gerald E. Penney, Lennie J. Stokes, Grover F. Watts, and William J. Branton immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to them of a sum of money equal to that which they would have earned as wages from the 9 Respondent's own witnesses testified that Rivas , who was hired on June 14 and laid off on June 17, was exceptionally versatile , having worked for a mobile home dealer and thereby having gained broad experience O The record reflects that employee Branton left town and was presumably unavailable for recall , and that seven other employees were laid off and not recalled : Bacon , Knight, B. Lloyd, R Lloyd , Penney, Stokes , and Watts. Significantly all of these employees had signed authorization cards. It should be noted, however , that there is some question as to whether or not Penney was offered reinstatement. SKYLINE HOMES, INC. 159 date of the discrimination against them to the date of the offer of reinstatement, and in accordance with F. W. Woolworth Company, '90 NLRB 289.10 Since Hypolite W. Balius, Jr., Thomas O. Cunningham, Donald O. Nick, Carleton D. Erdman, Harold B. Henry, Antonio P. Rivas, Claude B. Hardin, Leo Mielczarczky, Wellington J. Luzader, and Robert Haroff were reinstated after the discrimination against them we will not order that Respondent offer them reinstatement but only make them whole as in the cases of the other employees set forth above for wages lost from the date of discrimination to the date of reinstatement. We will also order that the Respondent preserve and, upon request, make available to the Board, payroll and other records to facilitate the computation of backpay. We will also order, in view of the nature of the unfair labor prac- tices the Respondent has engaged in, that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Skyline Homes, Inc., Ocala, Florida, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment with the above-named Union as the exclusive representative of all its employees in the following appropriate unit : All production and maintenance employees of the Respondent employed at its Ocala plant, exclusive of all other employees and all supervisors as defined in Section 2(11) of the Act. (b) Warning or interrogating employees concerning their member- ship in or activities on behalf of the above-named Union, or any other labor organization. (c) Discouraging membership in the above-named labor organiza- tions, or any other labor organization of its employees, by discriminat- ing in regard to their hire or tenure of employment or any term,or condition of employment. (d) In any other manner interfering with, restraining, or coercing such employees in the exercise of the rights guaranteed in Section 7 of the Act. i° In accordance with our usual practice, the period from the date of the Intermediate Report to the date-of this Decision 'and Order will'be excluded in:- computing the amount of backpay due, those employees who were not reinstated at the time of the hearing, as the Trial Examiner did not recommend reinstatement or an award of backpay as to them. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Melvin L. Bacon, Bob Knight, Bruce Lloyd, Robert W. Lloyd, Gerald E. Penney, Lennie J. Stokes, Grover F. Watts, and William J. Branton immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their senior- ity or other rights and privileges, and make them and Hypolite W. Balius, Jr., Thomas O. Cunningham, Donald O. Nick, Carleton D. Erdman, Harold B. Henry, Antonio P. Rivas, Claude B. Hardin, Leo Mielczarczky, Wellington J. Luzader, and Robert Haroff whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them, in the manner set forth in the Inter- mediate Report attached hereto as modified by The Remedy section in our Decision and Order herein. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of backpay due and the rights of reinstatement under the terms of this Decision and Order. (c) Upon request, bargain collectively with the above-named Union as the exclusive representative of all the employees in the appropriate unit and embody in a signed agreement any understanding reached. (d) Post at its plant at Ocala, Florida, copies of the'notice attached hereto marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for' the Twelfth Region, shall, after being duly signed by Respondent or its representatives, 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. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twelfth Region, in writ- ing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith. u In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : SKYLINE HOMES, INC. 16 1 WE WILL offer to Melvin L. Bacon, Bob Knight, Bruce Lloyd, Robert W. Lloyd, Gerald E. Penney, Lennie J. Stokes, Grover F. Watts, and William J. Branton immediate and full reinstate- ment to their former or substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges, and make them and Hypolite W. Balius, Jr., Thomas O. Cunningham, Donald O. Nick, Carleton D. Erdman, Harold B. Henry, Antonio P. Rivas, Claude B. Hardin, Leo Mielczarczky, Wellington J. Luzader, and Robert Haroff whole for any loss of pay suffered as a result of the discrimination against them. WE WILL, upon request, bargain collectively with United Brotherhood of Carpenters and Joiners of America, Carpenters Union No. 2292, as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All production and maintenance employees employed at the Ocala, Florida, plant, exclusive of all other employees and all supervisors as defined in Section 2 (11) of the Act. WE WILL NOT warn or interrogate our employees concerning their membership in or activities on behalf of the above-named Union, or any other labor organization. WE WILL NOT discourage membership in the above-named labor organization, or any other labor organization of our employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. All our employees are free to become, remain, or refrain from be- coming members of the above-named Union, or any other labor organization. SKYLINE HoMES, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 630849--62-vol. 134-12 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before W. Gerard Ryan, the duly designated Trial Examiner, at a hearing in Ocala, Florida, on October 11 and 12, 1960. The issues presented by the pleadings were whether Skyline Homes, Inc., hereinafter referred to as the Respondent, had violated Section 8(a)(1), (3), and (5) of the Act. After the hearing closed the Respondent on November 18, 1960, petitioned for leave to reopen the hearing for the purpose of offering in evi- dence certain proposed exhibits numbered 1-9 inclusive. I denied the petition and directed that the petition with proposed -exhibits thereto attached, numbered 1-9 inclusive, together with the memorandum from the General Counsel in opposition thereto, would constitute the Respondent's rejected exhibit file . Briefs were re- ceived from the Respondent on December 6, 1960, and from the General Counsel on December 7, 1960. Upon the entire record, and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The complaint alleged, the answer admitted, and I find that Respondent is, and has been at all times material herein, a corporation duly organized under and exist- ing by virtue of the laws of the State of Indiana; that Respondent is engaged in the business of manufacturing and selling mobile homes (trailers) in the States of Indiana and Florida; that at all times material herein the Respondent has maintained its principal place of business at Elkhart, Indiana, and is, and has been at all times material herein, engaged in the manufacture, sale, and distribution of mobile homes at Ocala, Florida; that the Respondent's plant located at Ocala, Florida, is the only plant involved in this proceeding; that the Respondent sold and delivered mobile homes valued in excess of $50,000 from its Ocala plant directly to points and cus- tomers in States other than the State of Florida; and that the Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Brotherhood of Carpenters and Joiners of America, Carpenters Union No. 2292,,is and, at all times material herein, has been a labor organization within the meaning of Section 2(5) of the Act. , III. THE UNFAIR LABOR PRACTICES With respect to unfair labor practices the complaint alleged that in violation of Section 8(a) (1), (3), and (5) of the Act the Respondent interrogated employees as to their membership in, activities in behalf of, and sympathy for, the United Brother- hood of Carpenters and Joiners of America, Carpenters Union No. 2292 (herein re- ferred to as the Union); threatened employees not to sign anything for which they later would be sorry; laid off employees because of their union activities; laid off employees in order to undermine the majority status of the Union; and refused to bargain collectively with the Union which represented a majority of Respondent's production and maintenance employees.' The answer denied the commission of any unfair labor practices and averred that the layoffs were for economic reasons. The answer admitted that James C. Overman (resident manager of the Ocala plant), Ralph D. Kreischer (plant manager), and Larry S. Davidow (attorney for Respondent)' were agents of the Respondent at all times material hereto. The complaint alleged, the answer admitted, and I find that all production and maintenance employees of the Respondent constituted a unit appropriate for the purposes of collective bargaining within the meaning of the Act. It was stipulated that on June 17, 1960, there were 33 production employees in the unit found to be appropriate.2 It was further stipulated that in addition to the 'At the opening of the hearing I granted General Counsel' s motion to amend para- graph 8 of the complaint by striking the name of James D. Shannon from the complaint. Shannon had never been laid off 2 James W Arthur, Melvin L Bacon , 1-Iypolite Ballus, Russell Bolinger, Daniel Bower, James Bowling, William J Branton , Ralph Buxton , Thomas 0 Cunningham , James Dodd, Carleton Erdman, Raymond Evans , J W Gilley, Claude Hardin, Robert Ilaroff, Harold SKYLINE HOMES, INC. 163 foregoing 33 employees in the unit, the Respondent had in its employ 4 other indi- viduals, namely, Erick Anderson, Paul Etzcorn, Clyde Newman, and Clyde Turner. The General Counsel contends the four last named are supervisors within the mean- ing of the Act and should be excluded from the unit. The uncontradicted testimony of Erick Anderson was that he, Clyde Newman, and Clyde Turner were "group leaders" and that Paul Etzcorn was a plant foreman. Ralph D. Kreischer, the plant, manager, also testified that Paul Etzcorn had been plant manager prior to June 17, 1960. Anderson's uncontradicted testimony was that he, Newman, Turner, and Etzcorn had authority to fire employees, assign and reassign work, and otherwise discipline employees. I accordingly find that Erick Anderson, Clyde Newman, Clyde Turner, and Paul Etzcorn were supervisors within the meaning of the Act and as such were not included in the unit. On May 1, 1960, the Respondent moved into its new plant. There were some changes made in the models of trailers then produced. Plant Manager Kreischer testified two major changes were (1) better wiring, plumbing, and heating, and (2) baked-on prepainted aluminum instead of painting at the plant; and admitted that these changes would momentarily affect production, and that some employees had complained that because of those changes they were unable to make their piece rates. Resident Manager James C. Overman testified the new unit was entirely dif- ferent in its color, interior, and appointments from anything the Respondent had previously made; that there were no radical changes regarding floor plans but new cabinet materials, parting walls, and new sidewall material were introduced. He testified further that the floor jig was reworked and while the floor was different, it was easier to make than the old floor; that a sticker machine was brought in; and that the Respondent started making its own mouldings for the trailers. He testified that the same amount of labor was required on the new model, except that a full- time paint shop was no longer required. On May 30 and 31, 1960, Respondent through its Plant Superintendent Ralph Kreischer advertised for help in the Ocala Star-Banner as follows: Skyline needs help in all departments. Only experienced mobile home build- ers or carpenters need apply. Apply in person to Ralph Kreischer anytime at new industrial park near Taylor Field. Thereafter on June 1, 1960, Respondent hired Lennie Stokes, James Bowling, -Gerald Penney, W. B. Turner, and rehired Robert Haroff. On June 6, 1960, Ralph Buxton and Robert Lloyd were hired. On June 7, Carl Erdman, Melvin Bacon, William Branton, and Donald Nick were hired. On June 10, Robert Knight was hired and during the week beginning June 13, Harold Henry and Antonio -Rivas were hired and Dale Whipple was recalled. Meanwhile, organizational activity started on June 11 when employee Bruce Lloyd met with J. E. Wells, business representative of the Union, and obtained union authorization cards. During the week of June 13, Bruce Lloyd passed out the cards and by Friday, June 17, 17 employees in the unit had signed authorization cards.3 After the layoff on June 17, three other employees named in the complaint signed cards, although the cards are dated prior to the layoff.4 About 10 a.m. on Friday, June 17, Union Representatives Warren Conary, Adlai Pittman, and J. E. Wells called at Respondent's plant and met with Plant Manager Overman. Conary was the union spokesman and he told Overman that the Union represented a majority of the production and maintenance employees and that they wanted to negotiate a contract for them. Overman did not question the Union's majority status, nor did he ask for proof of majority. The meeting lasted about an hour, during which negotiation procedures, union contracts, business conditions, collection procedures, etc., were discussed. Overman said his was not the last word and could not give any commitment but he would have an answer for them if they returned the following week, as he would have to get permission from the Respondent's home office in Elkhart, Indiana. An Henry, Walter Irving, Robert Knight, Bruce Lloyd, Robert Lloyd, Wellington J Luzader, Leo Mielczarczyk, Donald 0 Nick, Loren Osier, Gerald E Penney, Robert Rehfeldt, Antonio P. Rivas, D. J. Shannon, Lennie J. Stokes, J C. Tanner, W B Turner, Grover Watts, and Daniel Whipple 3 They were Donald Nick, Robert Knight, Robert W. Lloyd, Walter Irving, J W Arthur, James D Shannon, Robert Rehfeldt, Leo Mielczarczyk, J C Tanner, Melvin L Bacon, Gerald E Penney, Daniel F Bower, Thomas Cunningham, Grover F. Watts, Claude B. Hardin, James Dodd, and Bruce Lloyd 4 Luzader and Stokes signed cards on June 17, after the layoff, and Balius, Junior, signed a card on June 18. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appointment was made to meet again on June 21 at,10 a.m. After the union repre- sentatives left on Friday morning, June 17, Overman testified that he had a tele- phone conversation with the Respondent's president, Arthur Decio, and that he told Decio he had been visited by the union representatives. Decio told Overman that Overman could not negotiate any contract because he was not an officer or director of the Company. Decio told Overman to mail the proposed contract to him when it was received. When Overman told Decio he was going to meet with the union representatives on Tuesday, June 21, Decio said there would be no point in that because Overman could not negotiate to which Overman replied, "All right, fine." Thus the record shows that the Respondent's president, Decio on June 17 had in- structed Overman not to meet with the union representatives on June 21. The after- noon of June 17, after the day's work was completed, the Respondent laid off 16 men, 8 of whom'had signed union cards prior to the layoff.5 There is no evidence in the record that the Respondent had any knowledge of union activity in the plant prior to 10 a.m. on June 17 when the union representative called and met with Plant Manager Overman. James H. Dodd, called by General Counsel, testified that he was originally hired by Respondent in August 1958. He was not included in the layoff on June 17 and has been continuously employed since August 1958. Dodd signed a union card on June 14. He testified that about 1 p.m. on June 17 he heard the Respondent's pur- chasing agent, Max, holler to Plant Manager Kreischer that "Elkhart was on the phone" and Kreischer took the call out in the shop. He testified that he heard Kreischer say in the conversation, "Yes, we definitely know who the instigators are." I credit Dodd's testimony. Kreischer, when called by the Respondent, was asked if he had ever made the statement on the telephone which Dodd had described and Kreischer testified, "I don't recall that conversation." He was then asked again if he: had ever made the statement attributed to him by Dodd and he answered, "No, sir." On June 21, 1960, Adlai Pittman learned that Warren Conary would be unable to- be present for the meeting scheduled for 10 o'clock in the morning for that day and he called Overman to ask that the meeting be rescheduled for any time after 1 or 2 o'clock or at Overman's convenience. Overman replied to Pittman that he had strict orders not to discuss, • meet, or have any affair, any business, concerning union, activities at this time. When Pittman pointed out that unless he (Pittman) could reach them by telephone, Conary and Shephard (the joint representative for the State Council of Carpenters, and the United Brotherhood, International) were ex- pecting to be there for the meeting at 1 or 2 o'clock. Overman replied, "There will be no meeting period." Overman continued that "my instructions from higher up' has instructed me no." Overman testified that he told Pittman that he did not be- lieve it would be worth their while to come out to meet with them because he could not negotiate a contract; and when Pittman inquired, "What are we going to do," Overman replied, "I don't know Mr. Pittman. The contract has been mailed to, Elkhart. I made it clear that a meeting with me would serve no useful purpose." On Thursday, June 23, Decio mentioned in a telephone conversation with Over- man that Larry S. Davidow, the Respondent's attorney, was going to Ocala and re- quested that Overman meet him at the airport. Overman testified he could not be certain whether Decio said that Davidow was coming to meet with Overman in dis- cussing the Union or whether Davidow was to negotiate with him and for him with the Union. In any event on June 24, 1960, Davidow arrived and was met at the Tampa Airport and was driven to Ocala by Overman. On the way, Overman stopped at the post office for the mail and received a copy of the original charge in this proceeding which was filed by the Union on June 23, 1960. That original charge alleged that the Respondent had violated only Section 8(a) (1) and (3) of the Act. It did not charge any violation of Section 8(a)(5). The amended charge, charg- ing violations of Section 8(a)(1), (3), and (5) of the Act, was not filed by the Union until August 2, 1960, and served on the Respondent on August 3,1960. When the original charge was received on June 24, charging the Respondent with violation of Section 8(a)(1) and (3) of the Act, Davidow stated to Overman, "There will be no purpose in meeting with the Union to try to negotiate now." The Respondent thereafter made no attempt to meet with the Union. The Union after June 21 made no attempt to meet with the Respondent. After the Union's demand for recognition and bargaining on June 17, the Re- spondent engaged in the following conduct: On Saturday, June 18, Kreischer visited employee Luzader at his home. Luzader testified without contradiction that Kreischer asked him if employee Haroff had "signed up," if Luzader knew who the instigator was, and if Luzader had signed up. 6 The eight were Bacon , Cunningham, Knight, Bruce Lloyd , Robert Lloyd , Nick,. Penney, and Watts. SKYLINE HOMES, INC. 165 On June 22, Overman told employee Hardin not to sign anything that would hurt him or that he would feel sorry for later on. On June 24, Kreischer asked employee Watts if he had been approached and told Watts it made no difference if he had signed a card or not, if he did not vote when the election came. In addition, Overman admitted that following the Union's request for recognition on June 17, Overman spoke to almost all of the employees about the selection of the Union as the bargaining representative, questioning some of them individually and- others in groups. The Respondent sent letters to both the currently employed em- ployees and the laid-off employees in which it expressed its opposition to the Union as bargaining representatives of its employees. There was also testimony in the record of conversations between Kreischer and Overman with Anderson upon which no findings of unfair labor practices are made in view of the fact that Anderson has been found to be a supervisor within the mean- ing of the Act. The General Counsel's Contentions The General Counsel contends with respect to the 8(a) (5) allegations of the complaint that on June 17, 1960, the Union had designations from 17 of the 33 em- ployees in the unit when it made its demand for recognition and bargaining; that its demand of June 17 was a continuing demand which was renewed on June 21. The General Counsel contends that Overman to whom the demand was addressed was a top company official at Ocala, and that he was in charge of all phases of the Re- spondent's operations in Ocala and recognized his status sufficiently to discuss con- tract terms with the Union and to request a copy of the contract. The General Counsel further contends that Respondent, after the Union's demand on June 17, embarked on a campaign to destroy the Union's majority by conduct violative of Section 8(a)(1) and (3). The General Counsel concludes in his argument that none of the Respondent's acts should be considered alone; rather the case must be viewed in its entirety to gain the proper perspective; and that when so viewed it becomes clear that the Respondent's aim was to wreck the Union completely and irrevocably; and to accomplish this end a three-pronged attack was launched-a discriminatory layoff, a subversion of the collective-bargaining principle, and a cleanup action consisting of unlawful interference, restraint, and coercion warranting only one conclusion, namely, that Respondent violated Section 8(a)(1), (3), and (5) of the Act. With respect to the 8(a)(3) allegations of the complaint the General Counsel contends that the layoffs were discriminatorily motivated because of the timing of the layoffs occurring in the afternoon of the day in which the Union made its de- mand; because of the Respondent's advertising for help on May 30 and 31, and then on June 1 the Respondent hiring five new employees and rehiring a former em- ployee; and in the next 2 weeks prior to the layoff hiring nine additional men and recalling a former employee. The General Counsel contends that such facts on hiring and rehiring are sufficient in themselves to rebut any contention that the lay- offs were motivated by economic considerations. The General Counsel argues that Overman's testimony that the Mobile Home Industry generally slumped during the summer months and knowing this advertised for more employees, hired employees, and rehired two former employees and that those hired were told that production had to be boosted, is unbelievable at a time when Respondent had decided to lay off half its production force. The General Counsel further contends that the orders placed the week of the layoff were the third highest of the year and the dollar volume of shipments during the week prior to the layoff were higher than for any other week for which there was evidence. The General Counsel contends there are two other factors which demonstrate the layoffs were not economically motivated. First that Overman, although expressing to the union representatives on June 17 the problem of seasonal slumps and his intense dislike of layoffs remained strangely silent about the impending layoff scheduled for that same afternoon. The General Counsel would infer that the idea of a layoff had not yet enered Overman's mind; and the second factor is the change of personnel on June 20 and 21 wherein Anderson (found supra to be a supervisor) was laid off on June 20 because it was believed he was a union organizer; that Hardin was laid off on June 20 because it was thought he had signed a card; that Haroff was recalled because it was learned he had not signed a card; and Luzader was recalled because it was learned he was loyal. The General Counsel in summary contends that there is substantial evidence that the layoffs of June 17 and 20, 1960, occurred because the employees had selected the Union as their bargaining agent and the layoffs were effectuated in order to under- mine the majority status of the Union and accordingly such layoffs were violative of Section 8(a) (3) of the Act. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent's Defense The Respondent's defense to the 8 (a)(3) allegations of the complaint is that the" layoffs were economic in nature and not discriminatorily motivated. The Respond- ent introduced the testimony of Kreischer and Overman, that they discussed the necessity for such layoff as a business measure in the early part of June 1960; and then on Monday, June 13, Kreischer upon instruction of Overman began to prepare a list of employees to be laid off at the end of the week; that Kreischer determined those to be kept on the basis of job versatility, i.e., the ability to do more than one job and the laying off of the less versatile workers. This list was finished on Wednesday, June 15, and was to be made known to the employees on Friday, June 17. The Respondent also introduced testimony through Kreischer and Overman that the Respondent had no idea or knowledge of union activities at the plant prior to the, advent of the union representatives on the morning of June 17. Respondent intro- duced testimony that the production of mobile homes in Florida is a seasonal activity usually starting up in late summer or fall and ending about April or May and that a similar layoff had occurred in Respondent's plant about the same time in the years 1958 and 1959; and that when seasonal production stepped up in the fall of 1959 the Respondent had a backlog of actual orders of 55 compared to 17 orders at the comparable time in 1960. Overman testified from the company records that for the week ending June 18, 1960, there were no orders received and inventory units were 8; for the week ending June 25, 1960, he scheduled 5 units to be built without having been ordered and the number of inventory units was 7; for the week ending July 2, 11 orders were scheduled and there were 12 inventory units; for the week ending July 9, no orders received and there were 15 inventory units; for the week ending July 16, 3 orders received and 16 inventory units; for the week ending July 23, 5 orders received and 17 inventory units; for the week ending July 29, 7 orders received and 16 inventory units; for the week ending August 6, 3 orders received and 18 inventory units; for the week ending August 13, 1 order received and 16 inventory units; for the week ending August 20, 5 orders received and 17 inventory units; for the week ending August 27, 11 orders received and 15 inventory units; for the week ending September 3, 6 orders received and 14 inventory units; for the week ending September 10, 2 orders received and 14 inventory units; for the week ending Septem- ber 17, 8 orders received and 12 inventory units; for the week ending September 24, 17 orders received and 11 inventory units; for the week ending October 1, 4 orders received and 14 inventory units; for the week ending October 8, 9 orders received and 12 inventory units. The Respondent also introduced testimony that in the latter part of August 1960; as the expected season of production approached, Respondent began to recall its laid-off employees, all of whom with the exception of one were given an opportunity to return to work and that the recalling to work was carried on without any regard as to union status or membership or interest. With respect to the 8(a)(5) allegations in the complaint the Respondent denies that it has failed to bargain and contends that it was the Union who was responsible for breaking off negotiations. The Respondent contends that it is understandable that Overman was in no position to negotiate on June 21 because he had received no instructions from the home office and that Overman thought he had made that clear to Pittman about the uselessness of 'a meeting on June 21. When the union charges concerning violations of 8(a) (1) and (3) were received on June 23, Davidow advised Overman there was no use trying to negotiate with the Union until the matter of unfair labor charges had been disposed of. The Respondent contends that the union representatives "jumped the gun" in hastily filing charges on June 21 of 8(a) (1) and (3) violations and therefore the responsibility for failure to meet after June 21 rests entirely upon the Union. The Respondent contends that the only reason that no further negotiations occurred was that by filing the 8 (a) (1) and (3 ) charees against the Respondent the Union foreclosed any further negotiations, thereby depriving the Respondent of the right to raise the question as to whether the Union's claim to represent a majority of the employees was well founded. With respect to the 8(a)(1) allegations in the complaint the Respondent contends there is no testimony in the record as to any threats or promises or discriminatory behavior on the part of the Resnondent Respondent contends that in conversations with the employees the Respondent emphasized and reiterated the fact that while the Company itself was opposed to the Union, the individuals were free to do what they chose with the expression of hope on the part of Respondent, that when the election took place they would vote for the Respondent, and that such statements of expression or conversations with the employees did not overstep the bounds of free speech guaranteed not only by the Constitution of the United States but also under the Act. SKYLINE HOMES, INC. 167 Conclusions With respect to the 8(a) (1) allegations in the complaint, I conclude and find upon the entire record that the Respondent interfered with , restrained, and coerced its employees thereby violating 8 (a) (1) of the Act by (1) Plant Manager Kreischer asking employee Luzader if employee Haroff had "signed up"; if Luzader knew who the instigator was; and if Luzader had signed up; (2) Resident Manager Overman on June 22, 1960, in a discussion about the Union telling employee Hardin not to sign anything that would hurt him or that he would feel sorry for later on; and (3) Kreischer on June 24 asking employee Watts if he had been approached and telling Watts it would make no difference if he had signed a card or not, if he did not vote when the election came. With respect to the 8 (a)(3) allegations in the complaint, d conclude upon the entire record that the layoffs on June 17 and 20, 1960 , were made for economic rea- sons and were not discriminatorily motivated in violation of Section 3 of the Act. The first knowledge the Respondent had of any union activity at the plant was at 10 a.m. on June 17 when the union representatives visited Overman. Previously thereto, namely on June 13, Overman had directed Kreischer to draw up a list of employees to be laid off on June 17. Kreischer finished the list on Wednesday , June 15. Kreischer selected the employees to be retained on the basis of their ability to, perform more than one job in the plant and those who could not do more than one job were laid off. The layoffs were due to the seasonal economic situation. Further- more union and nonunion employees were included in the layoffs (although the Respondent had no knowledge who they were ) and recalls later were on the same nondiscriminatory basis. Accordingly I conclude that the 8 (a)(3) allegations of the complaint should be dismissed. With respect to the 8(a) (5) allegations in the complaint I conclude upon the entire record that the Respondent has violated Section 8 (a)(5) of the Act on and after June 21 , 1960. On June 17 when the union representatives called on Overman, claimed a majority of the employees in the unit , and requested bargaining negoti- ations, the Union in fact did have signed designations from a majority of the em- ployees in the appropriate unit . Overman did not challenge the Union's claim but advised the representatives that he would obtain instructions-from the home office ].T Elkhart and a meeting was scheduled for June 21. When Pittman telephoned Over- man on June 21 , Overman told Pittman he had received his instructions from "higher up" and there would be no meeting. I find no merit in Respondent's defense that because charges of 8(a)( 1) and ( 3) violations of the Act were filed by the Union it had no further obligation to bargain pending the disposition of such unfair labor charges. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the Respondent's 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom, and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: 6 CONCLUSIONS OF LAW 1. United Brotherhood of Carpenters and Joiners of America, Carpenters Union No. 2292, is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees of the Respondent at the Ocala, Florida, plant, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. The above-named Union was, on June 17, 1960, and since that date has been at all times, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6 The Respondent's proposed findings are granted except that 1, 2, 6, 7, 8, 14, 15, and 16 are denied The Respondent's proposed conclusions are denied. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By refusing on June 21 , 1960, and at all times thereafter to bargain collectively with the above-named Union as the exclusive representative of its employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 7. The Respondent did not and has not engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. [Recommendations omitted from publication.] Skagg's Pay Less Drug Stores and Retail Store Employees Union, Local 428, AFL-CIO, Retail Clerks International Asso- ciation, Petitioner. Case No. 20-RC-4555. November 14, 1961 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act a hearing was held before Donald E. Twohey, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in this case to a three-member panel [Mem- bers Rodgers, Leedom, and Fanning]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. We find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. The Petitioner seeks a combined unit of employees at the Em- ployer's two retail drugstores in San Jose, California. The Employer and Intervenor contend that the Board should conduct separate elec- tions in single-store units. The Intervenor has represented the em- ployees at the Employer's Downtown Store in San Jose since 1951. The Intervenor's last contract expired in 1960, prior to opening of the second store in San Jose, known as the Valley Fair Store. In addition to these two stores in San Jose, the Employer operates seven other retail drugstores in California : one in Oakland, one in Pleasant Hill, one in Hayward, one in Stockton, and three in Sacramento. The 1 Skagg's Pay Less Employees Association intervened on the basis of its contract with the Employer covering certain employees in the unit sought in the petition which, by its terms, expired in 1960 . Bush Terminal Company, 121 NLRB 1170. No party contends that this contract constitutes a bar to this proceeding. 134 NLRB No. 27.