Skyline Mobile Homes

SKYLINE MOBILE HOMES Skyline Mobile Homes and Dan L. Trillo and Frank M. Blenden. Case 17-CA-4959-1-2 November 7, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On May 8, 1972, Administrative Law Judge 1 Robert E. Mullin issued the attached Decision in this proceeding. Thereafter, 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge did not credit the testimony of Respondent's Supervisor Harold E. Harth in regard to his denial of a conversation with employee Thomas D. Brown. Crediting Brown's testimony, the Administrative Law Judge concluded that the interrogation of Brown by Harth as to his union interests and as to whether he had signed an authorization card constituted interference and restraint within the meaning of the Act in violation of Section 8(a)(1). We find that this inquiry, standing alone, was too insubstantial to warrant the finding of an 8(a)(1) violation, and, accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the complaint herein be, and it hereby is, dismissed in its entirety. I The title of "trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Trial Examiner: The trial of this case was held on April 4 and 5, 1972, in Winfield, Kansas, pursuant to charges duly filed and served,' and an order of consolidation, a consolidated complaint, and a notice of I The charges in both of these cases were filed on December 27, 1971 2 All dates mentioned hereinafter are for the year 1971, unless otherwise specified. 109 hearing issued on February 29, 1972. The complaint presents questions as to whether the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In its answer, duly filed, the Respondent denied all allegations that it had committed any unfair labor practices. At the trial the General Counsel and the Respondent were represented by counsel. All parties were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, and to file briefs. At the conclusion of the trial the Respondent made various motions to dismiss the complaint. These were taken under advisement. They are disposed of as appears hereinafter in this decision. The parties waived oral argument and on April 28, 1972, both the General Counsel and the Respondent submitted able and comprehensive briefs. Upon the entire record in the case, including the briefs of counsel, and from his observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, with over 30 plants in various States of the United States, is engaged in the manufacture and sale of mobile homes at a factory located in Arkansas City, Kansas, the only facility involved in this proceeding. During the course and conduct of its business at the latter plant, the Respondent annually purchases goods and/or services valued at in excess of $50,000 from sources outside the State of Kansas. From this same location the Respondent annually sells products valued at in excess of $500,000, of which amount products valued at in excess of $50,000 are sold annually to customers located outside the State of Kansas. Upon the foregoing facts, the Respondent concedes, and I find, that Skyline Mobile Homes is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union of Electrical, Radio & Machine Workers herein called Union, or I.U.E., is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events During the latter part of May 1971, the Union began an organizational campaign at the Respondent's Arkansas City plant. The attempt to organize the Respondent's employees continued for approximately 2 months and then, apparently, was abandoned. In December 1971,2 the Respondent laid off 16 employees, including Dan L. Trillo, Frank M. Blenden, and Steve Musson. The General Counsel contends that the layoff of the three last named employees was discriminatory. These allegations are denied by the Respondent in their entirety. During the spring and summer of 1971 the Respondent had approximately 108 employees at the Arkansas City plant. The work was divided among a number of groups, 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD known as the mill, floor, plumbing, shell, electrical, cabinet, metal, side walls, and final finish departments, Almost all of the employees were in one or the other of the foregoing groups, with an average of from 8 to 12 men in each such unit. Those so employed were paid on what Mansel W. Fore, vice president and director of operations, described as a group incentive rate. Thus, for the specialized work which each group performed on a mobile home, or coach, an estimated labor cost was fixed by the Respondent. Thereafter, it also established a requirement as to the number of coaches to be completed each day. Each group was then expected to meet this quota and, when it did so, all members of the group shared equally in the total amount alloted for the labor services of that group. Witnesses for the Respondent testified as to various advantages of the group incentive rate. Thus, Mr. Fore testified that in contrast with a plant incentive plan, where the employees in one section may be doing well, but others in the plant are not, and, as a result, all are penalized, under the group incentive system, each group is on its own. According to Vice President Fore, a feature of this system is that it requires each member of the group to work closely with all other employees in that group. Conversely, the need for harmony and cooperation on the part of every crewmember is at a premium. B. The Union Campaign The last week in May approximately eight of the employees met at the home of Phillip Marrs, a coworker. There, one Andy Earl, an uncle of Marrs and a representa- tive of the IUE, endeavored to interest those present in organizing a union at the plant. Dan L. Trillo was among that number. The following week another meeting was held, this one at a place called the Shamrock Cafe and Motel. From 10 to 15 employees were present, among them Frank M. Blenden, Steve Musson, and Trillo. All of those present signed authorization cards for the union organizer and were given IUE buttons to wear at the plant. These were about the size of a half dollar and had the phrase "IUE Shop Committee" printed thereon. Thereafter, and over a period of about 6 weeks, several other union meetings were held at weekly intervals. During this same period a number of the employees wore the union badges while at work, among this group being the three employees mentioned earlier. Blenden testified that twice during the early part of the summer, Ronald Wray, the plant superintendent, read off to the employees a statement as to the Company's reasons for opposing the Union. However, the General Counsel did not allege that in any such speeches had the Respondent trespassed on the employees' rights under the Act. As background evidence to establish the Company's antipathy to employee organization, the General Counsel produced several witnesses. Their testimony will now be considered. 3 Geisler denied having questioned Sparks about unions at this time. Sparks' credibility is discussed later in this decision. 4 Since this incident occurred more than 6 months prior to the filing of the charge on December 27, 1971, it cannot serve as the basis for any unfair labor practice finding 5 In the transcript Harth is referred to by several witnesses as "Dean" Darrell Sparks testified that in May 1971 he applied for employment and was interviewed by Walter Ray Geisler, the plant manager. According to Sparks, Geisler asked him how he felt about a union. Sparks testified that he responded by telling Geisler he did not care for a union, and that he had quit a job at a General Electric plant because he did not like the union there. According to Sparks, after this conversation, Geisler told him that he was hired.3 David A. Rhodes, an employee, testified that on about June 20, 1971, Geisler interviewed him for employment and that during the meeting the plant manager asked him what he thought of unions. According to Rhodes, he responded with the comment that it made no difference to him whether the shop had a union or did not. Geisler's testimony as to this interview was not in conflict with the account which Rhodes gave. The plant manager testified that he told Rhodes at the time that the plant was not a union shop and that the Company did not want one. According to Geisler, Rhodes told him that the presence or absence of a union made no difference to him. Geisler testified that it was shortly after his interview with Rhodes that he noticed employees wearing union buttons in the plant 4 Thomas D. Brown, an employee during this period, testified that shortly after July 4, his supervisor, Harold E. Harth,5 came into the mobile home on which he was working at the time and initiated a conversation about the Union. According to Brown, although he endeavored to ward off any such discussion by telling Harth that he was not supposed to talk about the Union on company time, the supervisor dismissed that objection by telling him that their talk would be "off the record."6 Brown testified that thereafter Harth asked him if he had signed a union card and when he acknowledged having done so, Harth asked him if he realized what he was doing. According to Brown, he answered in the affirmative and went on to state that on a prior job he had been a member of the Sheet Metal Workers union in Wichita. Brown testified that thereafter Harth concluded the conversation by telling him that he did not think that Brown could know what he was doing and that he "had better think it over before joining [the Union ]." 7 Harth denied having had any such conversation with Brown. Brown, however, was a credible witness and, in comparison with the testimony of the employee, Harth's denial was unpersuasive. Consequently, I conclude that Brown's testimony represented a substantially accurate account of the conversation between Brown and Harth. This interrogation of the latter as to employee Brown's union interests and as to whether Brown had signed an authorization card constituted interference and restraint within the meaning of the Act. I conclude and find that in so doing the Respondent violated Section 8(a)(1).8 Darrell Sparks testified that late in July, or early in August, his foreman told him to report to Geisler's office Harth, the name, apparently, by which he was commonly known in the plant 6 The quotation is from Brown's testimony. 7 The quotation is from Brown's testimony. 8 Gregory Thomas, another employee, testified that during the summer he once asked Harth what he thought of the Union. According to Thomas, SKYLINE MOBILE HOMES and that, after he did so, the plant manager questioned him as to whether he was still opposed to a union. According to Sparks, after he answered this question in the affirmative, Geisler mentioned the possibility of a layoff, but assured him that he had a good chance of staying on the payroll, whereas those who were "wearing union badges around the shop and trying to organize the union . . . would go before I would."9 Sparks testified that Dale Vance, a member of his group, was the only employee mentioned by Geisler as a badge wearer. Geisler denied that he ever had any such conversation with Sparks as the latter testified. The resolution of this credibility problem is critical to the decision of the principal issue in this case. In December, as will be discussed later herein, the Respondent had a layoff. Notwithstanding Sparks' testi- mony that during the summer Geisler assured him that he would be kept through the winter, Sparks, in fact, was among those laid off, allegedly for poor workmanship and a bad attendance record. Vance, on the other hand, was retained. At the trial, and as a witness, Sparks was very obviously a bitter ex-employee. He conceded that when Geisler informed him in December that he would be among those laid off he became very indignant and told the plant manager "I would see him [later] and he wouldn't like me when I did." During cross-examination, Sparks denied that his antagonism toward the Respondent, evident throughout his testimony, had been accentuated by the Company's termination of his brother, allegedly for theft of plant property. He conceded, however, that he would like to see the Respondent lose the instant case. Sparks acknowledged that he had a poor attendance record, and it appeared from evidence brought out on his cross-examination that his tendency to be tardy or absent began shortly after he was hired and continued until the time of his layoff in December. Under these circumstances, it seems unlikely that the plant manager would have made a point of calling Sparks into his office during July or August to assure him that in the event of a layoff he would be kept and that the prounion employees would be laid off. Even at that point, it must have been apparent that Sparks was developing a poor attendance record. Consequently, in view of this fact, and the manifest belligerent hostility which he displayed to the Respondent during his testimo- ny, I cannot accept as accurate his testimony as to the alleged conversation with Geisler during late July or early August. C. The December Layoffs Various witnesses for the Respondent testified as to the seasonal character of its operations and that customarily a layoff occurred in November and December of each year. the supervisor told him that he did not think that a union would be good as far as pay was concerned, but that, in any event, "It is what you guys think you want." Harth acknowledged having had such a conversation with Thomas and testified that he told the employee that whereas he was not for the Union himself, the matter was up to the men as to whether they wanted one. The General Counsel did not allege this incident to be a violation of Sec. 8(a)(1). In any event, it is my conclusion that in this conversation, initiated by employee Thomas, the foreman's comments could not be construed as tending to interfere with or restrain or coerce Thomas in the exercise of his rights. 9 The quotations are from Sparks' testimony. 111 It was undisputed that this has been a characteristic of the Respondent's employment history for a substantial period of time. Thus, Ronald Wray, the plant superintendent, testified that whereas during the summer of 1971 employ- ment reached a peak of 108 men, at the time of the trial in April 1972, there were only about 90 employees on the payroll. On December 10 and 16, the Company laid off a total of 16 employees. Among this number were Blenden, Musson, and Trillo. Of the employees laid off, the Respondent's records reflect the following purported reasons for their separa- tion: 11 were described as either poor workers or slow workers,10 3 of this same number were described as having a low service date," in addition to being poor workers, and 7 others were described as having the lowest service date in their group.12 One of the latter number, viz., Sparks, was also credited with a record of absenteeism. The purported reason for Blenden's layoff was "poor workmanship" and that he "constantly argued with fellow employees." For Musson, the reason stated was "poor workmanship" and "argued with other workers." Blenden testified that, early in December, Supervisor Harth told him that a layoff was about to take place and that the Company would utilize it "to get rid of the goof offs and troublemakers." Harth conceded that he had such a conversation with Blenden, but asserted that he had no one in particular in mind at the time he made the remark in question. To the individual records of the three employees whom the General Counsel contends were discriminatees we will now turn. Dan L. Trillo Trillo was hired in March 1969 and worked continuously for the Respondent until his layoff on December 16, 1971. During most of that period he was in the floor department where he worked at laying carpet and tile. He signed a union card at one of the early union meetings and thereafter wore an IUE button at work during several weeks in June and July. Other than wearing the badge, however, he engaged in no other organizational activity. He induced none of his coworkers to sign authorization cards and conceded that he made little, if any, effort to secure their signatures.l3 Trillo conceded that during the year prior to the layoff he had difficulty in laying carpet in the mobile homes and that a new type of jute back carpet introduced during the spring or summer had been difficult to handle. It appears that often, after Trillo finished the laying of the carpet, it bulged or wrinkled and that various expedients had to be adopted to get the carpet back in place. Sometimes, the 10 Le., Frank Blenden, Don Buell, Thomas Brown, Lewis Brown, Michael Dailey, George Farris, Steve Musson, Kenneth Ramsey, Daniel Sparks, Daniel Trillo, and Clifford Vaden. 11 Buell, Thomas Brown, and Farris. 12 George Far is, Jim Hobbs, Billie Jordan, John Postelwaite, Dale Powell, Kenneth Ramsey, and Van Roger Richardson. 13 Thus, when Trillo was asked the following question he gave the answer which appears below. Q. Did you make any attempts to [secure coworkers signatures on authorization cards ]9 A Yes, once in a while. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent called in an independent contractor who had to restretch the carpet. This individual, one Larry Steiner, was called as a witness and testified as to the number of times that he had been engaged by the Company to redo carpet laying work, most of which had been done by Trillo.14 In the approximate 3 months from the time of the layoff until the date of the hearing in the instant case, Steiner testified that he had done substantially less work for the Respondent than he had during comparable periods in 1971. Steiner was credible and his testimony was supported by invoices and charge sheets on which he had been paid by the Company for his services. Trillo also conceded that he had been reprimanded on a number of occasions by both Mike Tennant, his foreman, and by Geisler, the plant manager, for wastage of tile and carelessness in measuring out the quantity needed. Fore- man Tennant described Trillo as a "fast worker", but testified that it was necessary to warn Trillo more than any other worker in his group as to careless habits. He further testified that on six to eight occasions he cautioned Trillo that if he did not heed these reprimands he could be terminated. Steve Musson Musson was an employee of the Respondent from January 1969 until his layoff on December 16, 1971. He was in what was known as the shell department and worked at the installation of walls and cabinets. He attended one of the early union meetings where he signed an authorization card and thereafter wore a union button while at work for about a month. From his testimony it appears that, apart from wearing the button, Musson played no active role in the union campaign. He testified that he talked with from 10 to 15 employees about the Union, but he made no claim to having secured any signed authorization cards or having engaged in any other organizational efforts on behalf of the IUE. Musson testified that on December 16 Geisler called him to the plant manager's office and told him that although he was a good worker he was being laid off because he "disrupted the crew" and "bad mouthed the Company too much." Musson conceded that he had been reprimanded from 10 to 15 times for faulty workmanship and infractions of the plant rules. The principal tool which he used during the greater portion of each day was an expensive piece of equipment known as a screw gun.15 Musson conceded that he had been reprimanded by both Geisler and Foreman Harth for misuse of this tool. He also acknowledged that on one or two occasions, in a fit of pique, he had thrown the gun down on the ground. Some of Musson's fellow employees described him as "moody," 16 "hot headed," 17 and as one who complained a lot about the Company.18 David Rhodes, a witness called initially by the General Counsel, testified that the attitude and work of the department was better after Musson left. John B. Dziedziy, the employee at the plant who was responsible for the repair and maintenance of tools, testified that Musson brought him more screw guns to repair than any of the more than 30 employees at the plant who used that particular type of equipment. He also testified that since Musson left the Respondent's employ, the number of screw guns needing repairs had declined. Frank M. Blenden Blenden was in the electrical department. He was last employed by the Respondent in October 1969 and worked continuously until being laid off on December 16, 1971. Prior to this last period of employment Blenden had worked for the Respondent on two prior occasions, once for a period of about a month in May and June 1965, and thereafter from July 1965 to March 1969 when he quit without notice. Blenden went to one of the early union meetings where he signed an authorization card and was given an IUE button. Thereafter he wore the button, according to his own testimony, for from 4 to 6 weeks while at work in the plant. According to Blenden, at the same time, from 10 to 15 of his coworkers in the electrical department also wore the buttons. Blenden likewise testified that from time to time he passed out authorization cards to fellow employ- ees, but he did not testify that he secured any signed authorization cards from his coworkers. Leon Williams, a fellow employee in the electrical department, described Blenden as a very good worker who was more proficient than one Larry Riggs, the employee who subsequently replaced Blenden. He acknowledged that Blenden shouted a lot while on the job, but also testified that Blenden had been that way throughout his employment with the Respondent . Williams further testi- fied that he himself wore a union button during the organizational campaign. He is still employed by the Company. Blenden testified that on December 16 Geisler called him to the plant office and told him that he was being laid off because he "yelled too much, disrupted the crew and ... had a bad attitude." Geisler testified that when he rehired Blenden in the fall of 1969 he cautioned him about the problem of what he described as 'Blenden's "loud, boisterous mouth" and habit of "bossing everybody." According to Geisler, he warned Blenden that he would face termination unless he did better in that regard than he had in the past. Blenden testified that he had no recollection of having received such a warning from the plant manager at the time he was rehired . However, he conceded that he had a practice of raising his voice while at work. He also acknowledged that in 1971 Foreman Harth warned him that he should work harder toward getting along with his coworkers in the electrical group and that on another occasion Geisler had reprimanded him for yelling at the other employees in his department . Some of the employees called by the Respondent testified that subse- quent to Blenden's departure the work of the electrical group proceeded more smoothly. 14 Trio had one helper. 15 This was a power driven screwdriver. 16 David W Carson. 17 David Rhodes. is Jim Brew. SKYLINE MOBILE HOMES 113 Concluding Findings Trillo, Musson, and Blenden were described by various coworkers and some foremen as "good" workers, or "fast" workers. Each one also, admittedly, had various weakness- es. As the General Counsel has pointed out, of the 16 laid off in December, only Musson and Blenden were charged with having a bad attitude. From that the General Counsel moves on to argue that the attitude which the Company most disliked was their having embraced the Union during the brief organizational campaign that was conducted during the summer. As found earlier herein, however, both Blenden and Musson at times engaged in arguments with their fellow employees, and the charge that they were a disruptive force in that connection had some basis in fact. The central issue here, however, is whether the General Counsel established by a preponderance of the evidence that the three named employees were terminated because of the Respondent's antipathy for their union activities. In this regard, it is relevant to note that, viewed in the light most favorable to the General Counsel's case, the organiza- tional effort of these men was minimal at best, it occurred almost 6 months before the layoffs and there was no evidence in the record that these three men had established any significant identification with the IUE among the employees in the plant. Whereas they had worn union buttons while on the job, admittedly many of the other employees also had done so. Consequently, there is no compelling evidence on which the General Counsel can rely which would tend to establish that they were known to the Respondent for their organizational efforts. As is the case with most employees, their work records were not spotless. The charge made in the layoff of Trillo that he had been responsible for poor workmanship had some foundation in fact. The same charge as to Musson and Blenden was likewise supported by evidence in the record, as well as the charge that the latter two were prone to argue with their fellow employees. In view of all the foregoing, it is my conclusion that the General Counsel has not proved, by a preponderance of the evidence, that the three above- named employees were discriminatorily terminated. Ac- cordingly, it will be recommended that the allegations in the complaint to that effect be dismissed. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. By unlawfully interrogating an employee as to his union interests and activities, the Respondent violated Section 8(a)(1) of the Act. 3. The General Counsel has not proved that the Respondent violated the Act, except by the specific acts and conduct found herein to have been violative. 4. The aforesaid unfair labor practices described in paragraph 2, above, are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that the Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.]