United States Mobile Homes, Inc.

800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Mobile Homes, Inc. and United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 11-CA-3658 labor practices. Upon the entire record in the case and from my observation of the witnesses I make the following: February 26, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On November 26, 1968, Trial Examiner George A. Downing issued his Decision in this 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 attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, the Respondent filed exceptions 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 no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's 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 Recommended Order of the Trial Examiner and hereby orders that the Respondent, United States Mobile Homes, Inc., Henderson, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATMENT OF THE CASE GEORGE A. DOWNING, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act as amended was heard at Henderson, North Carolina, on October 15, 1968, pursuant to due notice. The complaint which was issued on August 30, 1968,' on a charge filed on July 1, alleged that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the Act by certain specified acts of interference, restraint and coercion and by discharging Edward Mosely on June 17 because of his union membership and activities. Respondent answered on September 6 denying the unfair FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS; THE LABOR ORGANIZATION INVOLVED I find on admitted facts that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act,, and that the charging Union is a labor organization within the meaning of Section 2(5) of the Act. IL THE UNFAIR LABOR PRACTICES A. Introduction and Issues Organizational activities at Respondent's plant, first begun by the Glass Blowers Union, were taken over by Carpenters around April 25. The alleged unfair labor practices herein occurred after that date and ended on June 17 with the termination of Edward Mosely, who had taken an active part in the Carpenters' campaign. In issue herein are alleged instances of interrogation and of threats 3 and an issue whether Mosely was constructively (and discriminatorily) discharged or whether he quit voluntarily on being transferred to a different job. Much of the evidence is in conflict. B. Interference, Restraint, and Coercion Edward Mosely testified that on May 1 Foreman Leon Langley asked him what, he thought of the Union and whether it would do any good. Mosely replied that he thought the Union was a fine thing and that it could help the working conditions. Thereupon Langley stated that President Dale Miller said he would close the plant before he would have a union in there. Langley flatly denied that testimony and denied that he had any discussion with Mosely about Union matters. Mosely also testified that around May 25 Plant Manager Jack Robertson asked him if he knew anything about the Union, but he made no reply. Mosely testified further that around May 31 he overheard Robertson ask employee Tony Hughes whether Mosely knew anything about the Union and Hughes replied that Mosely was "the head man." Robertson admitted that after hearing union talk around the plant he talked with nearly all of the employees (numbering 90), asking about working conditions and to give the Company a chance to improve them if anything was wrong . In that connection he mentioned the Union and asked the employees if they thought the plant needed a union. Robertson remembered talking with Mosely and remembered asking Mosely whether he thought all the people in the plant felt the same way about the Union as he did. Robertson's testimony contained no reference to the conversation with Hughes to which Mosely testified. 'All events herein occurred in 1968 unless otherwise noted 'Respondent, a North Carolina corporation engaged at Henderson in the manufacture and sale of mobile homes , sells and ships annually to extrastate points products valued in excess of $50,000. 'No evidence was presented in support of an allegation that Respondent created an impression of surveillance. 174 NLRB No. 118 UNITED STATES MOBILE HOMES Frank Russell (who was also called as Respondent's witness) testified that some 2 weeks before Mosely left Foreman L. C. Smith talked with him about transferring to many different jobs, explaining that he wanted the employees to learn as many jobs as they could because the Company was expecting to have a layoff. Smith continued that there were some employees who were for the Union or trying to get the Union in and that if Miller found out who they were he was going to get rid of them. Smith admitted discussing with Russell the advisability of learning other jobs but denied stating that if Miller found out who was in the Union he would get rid of them. Smith testified that Russell questioned him about the Union and he told Russell that Miller could not fire anyone for participating in it or for signing a card . Russell volunteered that he signed a card but expressed no fear about what might happen because of it. Concluding Findings Resolution of the credibility issues in the foregoing testimony begins properly with noting the respects in which there are no conflicts and no denials. Thus, Robertson's testimony tended to confirm Mosely's account of the interrogation for he freely admitted questioning Mosely about the Union as well as practically all other employees. Furthermore, Robertson made no denial of the conversation with Hughes to which Mosely testified and Respondent also failed to call Hughes to testify in denial. Attempts on cross-examination to cast doubt on Mosely's ability to hear the conversation were thus wholly unpersuasive. I therefore find that Robertson engaged in the interrogation to which Mosely testified. There remain the outright conflicts concerning the threats which Mosely and Russell attributed, respectively, to Foremen Langley and Smith, both of whom purported to quote President Dale Miller. There are two factors which serve to break the apparent stalemate in this head -on conflict and which tip the scales in favor of crediting the employees. The first is that Plant Manager Robertson was contemporaneously engaged in a plantwide campaign in which he was seeking to have the employees disclose their union views and sentiments and their knowledge of union activities and its supporters. The conduct of Foremen Langley and Smith as Mosely and Russell testified to it plainly fitted into that pattern, reflecting that the foremen were following in less restrained fashion the example of their superior. Furthermore, Respondent reflected a willingness to accept Russell's testimony on other matters for it called him, as its own witness to give significant evidence in defense of the termination of Mosely. See section C, infra. I therefore conclude and find that by interrogating employees concerning their union membership and activities and by threatening that it would close the plant and would get rid of employees who were trying to get the Union in, Respondent interfered with, restrained and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. Winchester Spinning Corporation v. N.L R.B., 402 F.2d 299, (C.A. 4). C. The termination of Edward Mosely Edward Mosely was employed from January 1967 to June 1968, in the cabinet department under Foreman Lewis C. Smith . His active participation in union activities and Respondent' s knowledge thereof are established by the findings made in sections A and B, 801 supra. Mosely testified that, having heard on June 14 from his son-in-law, George Wrenn, also employed in the' cabinet department, a rumor that he was to be transferred to the belt sander, he went to the plant on Saturday morning and spoke to Plant Manager Robertson Mosely informed Robertson that if he were put on the sander he would have to quit because he could not stand the dust Robertson replied he would see what he could do. Mosely testified that on Monday morning Foreman Smith called the employees together and informed them there were going to be some transfers made and that those who did not like it could quit. As the group dispersed Mosely asked Smith what his transfer would be and Smith informed him it would be to the belt sander. Mosely told Smith of the conversation with Robertson on Saturday morning and stated that if be were put on the sander he would have to quit because he could not stand the dust. Some 10 minutes, later Smith told Mosely that when he finished the door he was working on to go to the sander. Mosely replied that he would not do so and that when he finished the door he would simply walk out and leave the job. A few minutes later as he finished the door he picked up his lunch and walked out. Mosely testified that he returned to the plant some hour and a half later to explain to Robertson that he had quit because he could not work on the sander on account of the dust. Though denying that Robertson suggested he take the sander's job for a short while, Mosely testified that Robertson stated he would see what he could do about a job in another department and would let Mosely know. Robertson admitted that Mosely spoke to him on Saturday about not taking the job on the sander, but testified that Mosely did not state why he did not want to work on that job and said nothing about dust or his respiratory condition Robertson told Mosely he would try to work something out on Monday, but Smith had already made the transfers (and Mosely had quit) before Robertson arrived at the plant around 8 a.m. Robertson testified that it was on Tuesday that Mosely returned to the plant, called him out to the car and explained (for the first time) that he could not take the job on the sander because of the dust. Robertson suggested that Mosely take the job on a temporary basis and stated that he would do his best to transfer Mosely to another department in the near future: Mosely rejected the offer, stating that he would rather quit and that he was going to Raleigh. Being thus under the impression that Mosely was going elsewhere for a job, Robertson did nothing further to find a different job for Mosely and did not inform Mosely he would get in touch with him. Foreman Smith testified that he called the employees together on the morning of the 17th and told them a number of them were being transferred in order to get a better knowledge of the various jobs, and no one expressed any objection at the time. Smith said nothing to the effect that anyone who did not like the transfer could quit. Some 10 minutes later he told Mosely to go on the sander and Mosely replied he would quit before he would go there. Mosely did not mention his physical condition and when he finished the door he was working on he picked up his lunch and left. The General Counsel offered no corroboration of Mosely's testimony concerning the circumstances of his transfer or of his quitting, but two witnesses, including Frank Russell, corroborated Smith's testimony that the latter said nothing to the effect that those who did not like 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their jobs could quit. Both Robertson and Smith testified that it was Respondent's policy to make frequent transfers of employees in order that they might obtain a broader knowledge of the particular department and of the plant as a whole and a better ability to perform the various jobs. The transfers (six in number) which Smith announced in the cabinet department on June 17 were made pursuant to that policy and others had been made at various times both in the cabinet department and elsewhere. That testimony was corroborated by some 6 witnesses called by Respondent, including Jimmie Allgood and Frank Russell, both of whom testified to previous transfers in the cabinet department. James Young testified similarly that he had worked on every job in the cabinet shop as well as on some jobs in other departments, and Vance Rose, Jerry Taylor and Ray Claiborne testified to their own transfers in other departments. The remaining testimony concerned the matter of Mosely's physical condition and his reaction to dust. Mosely admitted that he himself sometimes operated the sander for short intervals in connection with his regular job and that there was also a substantial amount of dust at times in an area called "bottoms" which was much closer to his work station than the sander. Though Mosely (and others) made complaints about the dust emanating from the bottoms area, his testimony did not relate his complaints to his alleged allergy to dust or otherwise to his physical condition. Furthermore, Russell, recalled as Respondent's witness, testified he knew Mosely quite well and that he never heard Mosely say anything about his physical reaction to dust and never heard him complain about dust on the job. As Mosely described his condition his breathing was affected if he were in "too stuffy or dusty a place," but the General Counsel made no attempt to establish that Mosely's health would in fact have been jeopardized or endangered by a transfer to the sander. The closest approach was Mosely's testimony that several years before while working in a cotton mill he developed a chest condition which a doctor diagnosed as something like arthritis in his chest, that the doctor gave him some pills to take, and that he took them for a couple of months while he continued to work at the cotton mill. Mosely quit that job partly because of the dusty conditions and partly because he got another job nearer home, and he never again consulted a doctor concerning his alleged allergy to dust. working on the sander would in fact have endangered Mosely's health. The most that Mosely claimed was that his breathing was affected by working under conditions which were too dusty, but he never raised the point before even when complaining about the dust in the bottoms area and he never told anyone about his alleged allergy to dust. Indeed Mosely had been able to continue working on an earlier dusty job after taking pills prescribed by his doctor. If a health hazard actually existed on the sanding job or was reasonably expected to, develop that fact could be found only after a trial period and/or a seeking of further medical advice. Significantly, Mosely's physician did not find his continued unemployment on the earlier dusty job to be hazardous. Neither did the evidence establish that Respondent was harassing Mosely, that the transfer was culmination of a plan to force Mosely to quit, or that Respondent sought deliberately to subject Mosely to conditions which it knew would prove intolerable. Cf. Plastic Age Company, 111 NLRB 121, 14-3. Indeed, the decision to make the transfers was made on Friday before Mosely registered any protest to going on the sander, and without any knowledge of his claimed allergy to dust. I therefore conclude on the entire evidence that the dust excuse was a mere afterthought which Mosely advanced after his quit, that his claims of feared adverse affects were greatly exaggerated, and that the General Counsel failed to establish by a preponderance of the evidence that conditions on the new job were to Respondent's knowledge unbearable or were such as to endanger Mosely's health. Thus the General Counsel failed to establish that Mosely was constructively discharged, and I find to the contrary that he voluntarily quit his job. Upon the basis of the foregoing findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1). 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(3) of the Act. THE REMEDY Concluding Findings As previously noted the evidence established that Mosely was an active supporter of the Union and that Respondent was aware of the fact. Also previously found were the threats which Foremen Langley and Smith attributed to Respondent's president to close the plant and to get rid of employees who were trying to get the Union in. Such findings customarily form the conventional base for inferring a discriminatory motivation in employer actions which adversely affect the employment of union adherents and will suffice here if it can be found on a preponderance of the evidence that Mosely was in fact constructively discharged. On that essential factor, however, the General Counsel failed to carry the burden of proof. Thus, although the General Counsel's theory as argued orally and by brief was that Mosely was not required to put his health in jeopardy, no showing was made that Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action as provided in the Recommended Order below which I find will be necessary to remedy and to remove the affects of the unfair labor practices and to effectuate the policies of the Act. 'Because of inconsistency in Mosely's testimony , I credit the denials of Robertson and Smith of Mosely 's claim that he informed them prior to his quit that he would not take the sander's job on account of the dust. Thus, Mosely explained as a witness that he returned to the plant to inform Robertson that he had quit for that reason; but his testimony elsewhere was that he had already informed both Robertson and Smith why he objected to the job. I also reject Mosely's testimony that Smith made the statement on Monday that those who did not like their transfers could quit . The General Counsel attempted no corroboration of that testimony while Smith's testimony was corroborated by two witnesses, including Russell. UNITED STATES MOBILE HOMES Upon the foregoing findings of fact and conclusions of law and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER United States Mobile Homes, Inc., a corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating coercively its employees concerning their union membership, activities and sentiments (b) Threatening its employees that it will close the plant and get rid of employees who were trying to get the Union in. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join or assist United Brotherhood of Carpenters and Joiners 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 protection, or to refrain from any and all such activities. 2. Take the following affirmative action: (a) Post in its offices and plant at Henderson, North Carolina, copies of the attached notice marked "Appendix."5 Copies of said notice on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof and 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 to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.' 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "a Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 11, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 803 IT IS RECOMMENDED that the complaint be dismissed insofar as it alleges that Respondent discharged Edward Mosely in violation of Section 8(a)(3) and (1) of the Act. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the polices of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees coercively concerning their union membership, activities or sentiments. WE WILL NOT threaten our employees that we will close the plant or that we will get rid of employees who are trying to get the union in. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their right to self-organization, to form, join or assist United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, to bargain collectively with representatives of their own choosing or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. All our employees are free to become or refrain from becoming members of United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization. UNITED STATES MOBILE HOMES, INC., (Employer) Dated By (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina, Telephone 723-2911.