National Mobile Development Co.,

NATIONAL MOBILE DEVELOPMENT CO. National Mobile Development Company, Tri Par Homes Division and Michigan State Building and Construction Trades Council, AFL-CIO. Case 7-CA-7914 December 29, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 22, 1970, Trial Examiner Melvin J. Welles issued his Decision in the above-entitled proceeding,) finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed as to them. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, National Mobile Homes Develop- ment Company, Tri Par Homes Division, Perry, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.2 ' The Respondent's name appears as corrected in the Trial Examiner's erratum to his Decision 2 In footnote 5 of the Trial Examiner's Decision substitute "20" for "10" days TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 501 MELVIN J. WELLES, Trial Examiner: This case, initiated by a charge filed on April 30, 1970, and a complaint issued June 25, 1970, was heard at Lansing, Michigan, on August 4, 1970. The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the Act. Respondent's answer denied that it engaged in any of the unfair labor practices alleged. Counsel for the General Counsel and for the Respondent argued briefly before me. Neither filed a brief. Upon the entire record in the case, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT At all times material herein Respondent, a Delaware corporation, has been engaging in the manufacture, sale, and distribution of modular homes and related products at its plant at Perry, Michigan, the only facility involved in this proceeding. During the calendar year 1969, Respondent both received and shipped goods valued in excess of $50,000 from and to points outside the State of Michigan. Upon these admitted facts, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Michigan State Building and Construction Trades Council, AFL-CIO, herein called the Union, is, as Respondent admits, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Request for Recognition and the Layoff On April 15 , 1970, Richard Watts, an employee of Respondent, met with Ralph Krimmel, an international representative of the Carpenters Union, and several other representatives of various unions, to discuss getting a union into Respondent's plant at Perry, Michigan. At a subse- quent meeting on April 22, attended by many of Respondent's employees, Krimmel received 15 authoriza- tion cards designating the Union as bargaining representa- tive . Employee White had signed such a card at the first meeting, on April 15.1 The next day, April 23 , about 3 : 15 p.m., Knmmel, with two other union officials , Fred Ikle and Neil Van Stelle, went to Respondent's plant. They met with Plant Manager Richard S. Torrey, and told Torrey that the Union had a majority of his employees signed up and wished to be recognized for the purpose of collective bargaining . Torrey replied that he had "no authority to handle matters of this nature," that the union representative "would have to talk with Mr. Dunkel." At the time the union representatives i There is no 8(a)(5) allegation in the charge or complaint, and thus no authentication of these cards was proffered or necessary 187 NLRB No. 67 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were in Respondent's office, a man in a police uniform was there, making out an application for employment. Krimmel, Ikle, and Van Stelle then left the plant, and went into the city of Perry, where Krimmel placed a telephone call to Respondent 's President Wilfred O. Dunkel . After identifying himself , Krimmel requested a meeting with Dunkel , and responded to Dunkel's "for what reason," by telling Dunkel the Union represented a majority of his employees and wanted to be recognized as exclusive bargaining agent . Dunkel told Krimmel that if the employees wanted a union, he "would shut the shop down," that he "would not deal with the union in any way because it would jeopardize his other business." Dunkel told Krimmel to write him a letter , and he would have the N.L.R.B. set up an election, but that "if the people vote for the union, I will shut it [the shop] down." At one point Dunkel told Krimmel that in about 2 weeks, they were going to take inventory in the plant, and "if this [the Union ] was what the people wanted," he "just wouldn't bother to open it again." The next afternoon, Friday, April 24, about 3 p.m., Plant Manager Torrey called the employees into the office and told them that they would be laid off until further notice because of financial difficulties and poor workmanship. Although all employees were laid off effective the following Monday, April 27, Respondent, either the afternoon of the 23d or the morning of the 24th hired a new employee, Burshard, who apparently worked doing outside repairs during the layoff period. Some few employees may have been recalled during the week of April 27, a larger number were recalled on May 4, and all the employees were back at work by May 11. B. The Alleged Violations of 8(a)(1) Late in the afternoon of Thursday, April 23, Plant Manager Torrey visited Mrs. Gertrude Zwolensky, mother- in-law of Respondent's employee James William Hendley. Torrey asked Mrs. Zwolensky if Hendley had anything to do with trying to get the Union into the plant. She said she did not know, and Torrey then asked if she would try to find out, remarking that he knew there were three or four employees who had signed cards, but he did not know who they were. Torrey also said that if they tried to get the Union in, the Company would close the plant down the next day, Friday. The following morning, April 24, Torrey called Mrs. Zwolensky and asked if she had found out whether Hendley signed a card. He went on to say that those employees who had not signed a card could come to work Monday, but those who had signed would be laid off that day. He added that he thought he would call Mrs. Zwolensky's daughter, Rebecca Hendley. About 11 a.m., the same day, Torrey did in fact call Rebecca Hendley. He asked her whether her husband had signed a union card . When she replied that she did not know, Torrey said he would have to lay off the men who had signed union cards. That Torrey's threats of plant closing or layoff, and his attempts to ascertain employee Hendley's union affiliation or sympathies violated Section 8(a)(1) of the Act requires no citation of authority , and I so find. On Monday , April 27, Torrey visited employee Michael Waters, who was in layoff status. Torrey talked with Waters about the home Waters had purchased from Respondent, which Respondent had been helping to finance. Torrey said that "it would be a rough time trying to finance a home without a job." Waters asked Torrey whether, if the employees would go back without the Union, it might help the employees to get back to work, and Torrey replied that if he "knew the people would go back to work without the Union, it may help us to go back to work, to open the plant." Waters asked where he might be able to reach Torrey, and Torrey replied that he would be at home Thursday night, and that Waters should call to let him know how many people would come back to work without the Union. It is entirely possible that Torrey intended his remark that "it would be a rough time trying to finance a home without a job," as a veiled threat . Indeed, Waters seems to have viewed it as such , for Waters immediately thereafter brought up the subject of the Union. I nevertheless reject the General Counsel's contention that this statement was a threat and find no violation of Section 8(a)(1) therein. Had Torrey, rather than Waters, injected the subject of the Union into the discussion, I would find otherwise, but in the circumstances the General Counsel has not proved by a preponderance of the evidence that the remark was a threat. That Waters brought up the union question, and asked Torrey whether it would help the employees to get back to work if they could go without the Union, is not, however, a defense to Torrey's response that "it may help us to go back to work, to open the plant," and that Waters should let him know how many people would come back to work without the Union. The implicit threat to continue the layoff unless the employees rejected the Union is no less violative of Section 8(a)(1) just because it is elicited by the employee. I find, accordingly, that Respondent violated Section 8(a)(1) by this statement of Plant Manager Torrey. On May 8, after all employees had been recalled, Supervisor Darwin Williams stopped at Waters' work station and asked whether Waters had heard any more about the Union. Waters said he had not, and asked Williams what he thought would happen. Williams replied that he was not against the Union, but thought it was the wrong time to try to organize as it was a new plant and the Union would "probably hurt us more than it would help us. Although Williams was admittedly a supervisor at the time, he was hired only a week or so before the April 24 layoff, he is not alleged to have engaged in any other conduct violative of the Act, and the context of the full discussion (Williams did not testify) convinces me that Williams' concern was with his own job , that his casual question was with that in mind , rather than to seek information for "management," and, therefore, that the interrogation was neither calculated to coerce nor would it reasonably be expected to coerce the employees. I conclude, therefore, that this allegation of the complaint should be dismissed. C The Discriminatory Layoff The undisputed facts established by the General Counsel NATIONAL MOBILE DEVELOPMENT CO. present a clear and convincing affirmative case of a discriminatory layoff. Thus, not only was the layoff effected on April 24, the day after the Union requested recognition, but Respondent's President, Dunkel, respond- ed to the Union's request the day before that he "would shut the shop down" if the employees wanted a union. Also Plant Manager Torrey told Mrs. Zwolensky on April 23 that the plant would shut down the next day if the employees tried to get the Union in; he told Rebecca Hendley the morning of April 24 that he would have to lay off the men who signed union cards, and he told employee Richard Waters, during the layoff, that it would help the employees to get back to work if they would go back without the Union. Respondent does not dispute that all the above statements were made, and concedes that the timing of the layoff was at least of surface significance, but contends nevertheless that the layoff was economically motivated. To support this contention, Respondent adduced testimony from executive Vice President and Secretary Hugh J. Murphy, which did in fact demonstrate the Company's tenuous economic position. At a meeting of the Company's board of directors on April 9, it had been agreed to "consider" stopping construction work and laying off nonessential personnel, in view of the Company's "cash position." The timing of any such shut down was to be left to the discretion of Murphy and President Dunkel. The Company was also having some difficulty with inventory, and storing completed homes which could not be delivered for one reason or another Murphy specifically testified on direct examination that the decision to close the plant was made "to reduce the expenditures for that operation as one of the means of stopping the decline on cash in the corporate accounts." Murphy impressed me as a truthful witness, and I credit his testimony completely as to the Company's economic straits. As to his testimony that the decision to close the plant was motivated by economic considerations, I believe that Murphy also testified to the truth as he saw it, for Murphy's concern was with the Company's financial position, and he had already recommended a shut down as one possible way of alleviating the situation. Murphy, however, apparently had little to do with the employees directly. He was not the recipient of the Union's requests, he did not personally participate in any threats or interrogation, and he owned approximately 1 percent of the Company's stock. President Dunkel, who owned 74 percent of the stock (the remaining 25 percent was publicly owned) was obviously the head of the Company in all respects. Dunkel's own motivation was expressed in unequivocal terms in response to Krimmel's telephonic request for recognition. He said he would "shut the shop down." And Plant Manager Torrey's statements to Gertrude Zwolensky and Rebecca Hendley to the effect that they would close the plant the next day if the Union tried to get in, confirms Dunkel's, and Respondent's, motivation for closing down at that time. Further proof of Respondent's discriminatory selection of April 24 for the layoff lies in the hiring of a new 2 Burshard was clearly the applicant in a police uniform seen by Krimmel on April 23, for Plant Manager Torrey testified that he hired 503 employee, Burshard, on either the afternoon of April 23 or the morning of April 24.2 A company about to have a 2- week layoff would scarcely be taking on new help at the same time. The hiring of a new foreman, Williams, about a week earlier is also inconsistent with the April 24 shut down having been impelled by economic considerations. Undoubtedly, as Murphy testified, "the financial position of the corporation was of much more importance to us than the visit by the Union." By this, I take it that had Respondent been swamped with orders and making money hand-over-fist, it probably would not have resisted unionization by laying off its employees. Respondent's counsel stated as much in oral argument; he said "I am certain they would be happy to operate if they were making a profit, union or no union." But the question is not whether a healthy company would have done the same thing, but whether the layoff of a sick company's employees was occasioned by the Union's organizing them and requesting recognition. As I have already indicated, the evidence overwhelmingly demonstrates that it was. I find, accordingly, that Respondent violated Section 8(a)(1) and (3) of the Act by laying off its employees on April 24,1970. IV. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes and policies of the Act. It having been found that Respondent unlawfully laid off its employees on April 24, 1970, in violation of Section 8(a)(I) and (3) of the Act, it will be recommended that Respondent take these employees whole for any loss of earnings they may have suffered as a result of the discrimination against them, by payment to them of the sums of money equal to the amount they would have earned during the layoff, less net earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F. W Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in the Board in Isis Plumbing & Heating Co, 138 NLRB 716. Although it is possible that Respondent might have had to layoff the employees at some other time had it not done so on April 24, there is no certainty that a subsequent layoff or plant closing would have occurred. A change in Respondent's cash position, an increase in orders, or, indeed, a determination not to shut down even without such changes, were all possibilities. Since the April 24 layoff was, as I have found, motivated by the advent of the Union, the "conjectural eventuality [of a future shutdown] cannot now be permitted to defeat Respondent's obligation to remedy its violation of [the employees'] statutory rights." Interurban Gas Corporation, 149 NLRB 576, 577-578, enfd. 354 F.2d 76 (C.A. 6). I see no reason, therefore, to take that possibility into account in determining the backpay due these employees. In view of the nature and extent of the unfair labor Burshard on April 23 or 24, and that "he was on the police force at the time that I hired him " 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices herein found, I shall recommend that Respondent be placed under a broad order to cease and desist from in any manner infringing upon the rights guaranteed its employees by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. National Mobile Homes Development Company, Tri Par Homes Division, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Michigan State Building and Construction Trades Council, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily laying off its employees on April 24, 1970, thereby discouraging membership in the above- named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by 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. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDERS Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, it is recommended that National Mobile Homes Development Company, Tri Bar Homes Division, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Laying off its employees, or otherwise discriminating against employees, in order to discourage membership in or support of Michigan State Building and Construction Trades Council, AFL-CIO, or any other labor organiza- tion. (b) Threatening employees with discharge, layoff, closing of the plant, or other reprisals if they joined the Union or engaged in activities on behalf of the Union. (c) Seeking to obtain information about its employees' union sympathies by questioning their relatives. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist Michigan State Building and Construction Trades Council, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make whole each of the employees who were laid off on April 24, 1970, for any loss of pay they may have suffered by reason of Respondent's discrimination against them, in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due under the terms of this Recommended Order. (c) Post at its plant at Perry, Michigan, copies of the notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by a duly authorized representative of Respondent, shall be posted by it 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. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.5 3 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings conclusions and order, and all objections thereto shall be deemed waived for all purposes 4 In the event that the Board 's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 5 In the event this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We will not discourage membership in Michigan State Building and Construction Trades Council, AFL-CIO, or any other labor organization, by laying off or discharging employees or otherwise discriminat- ing in any manner with respect to their tenure of employment or any term or condition of employment. We will not threaten to close our plant if our employees engage in union activities or select a union to represent them. We will not threaten our employees with discharge, layoff, or other reprisals because of their union activities. We will not try to find out whether our employees have signed a union card by questioning their relatives. We will not in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act. We will make whole the employees laid off on April NATIONAL MOBILE DEVELOPMENT CO. 505 24, 1970, for any wages lost as a result of our discrimination against them. All our employees are free to become , remain , or refrain from becoming or remaining members of the above-named or any other labor organization. NATIONAL MOBILE HOMES IMPROVEMENT, TRI PAR HOMES DIVISION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard , Detroit, Michigan 48226, Telephone 313-226-3200.