Chickasha Mobile Homes, Inc.

CHICKASHA MOBILE HOMES Chickasha Mobile Homes, Inc. and American Federa- tion of Grain Millers. Case 18-CA-3534 1057 FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER April 10, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On December 6, 1972 , Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's exceptions. 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. The facts herein are based upon the pleadings and admissions therein. Chickasha Mobile Homes, Inc., the Respondent, a Delaware corporation, is engaged in the manufacture and sale of mobile homes, and operates a plant at Watertown, South Dakota, the only location involved herein. During a 1-year period, a representative period, Respon- dent purchased and received, - in interstate commerce, goods and materials valued in excess of $50,000 from points located directly outside the State of South Dakota. As conceded by Respondent and based upon the foregoing, it is concluded and found that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED American Federation of Grain Millers is and has been at all times material herein a labor , organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES 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 Administrative Law Judge and hereby orders that Respondent, Chickasha Mobile Homes, Inc., Watertown, South Dakota, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. DECISION STATEMENT OF THE CASE JERRY B. STONE, . Administrative Law Judge: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on September 20, 1972, at Watertown, South Dakota. The charge was filed on April 26, 1972. The complaint in this matter was. issued on August 9, 1972. The' issue concerns whether Respondent discriminatorily discharged Theodore Meyer because of his union membership and activities on April 25, 1972, in violation of Section 8(a)(3) and (1) of the Act. All parties were afforded full opportunity to participate in the proceeding.. Briefs have been filed by the General Counsel and the Respondent and have been considered. Upon the entire record in the case and from my observation of witnesses, I hereby make the following: - The evidence and facts relating to the issue as to "ether Respondent discriminatorily discharged Theodore Meyer on April 25, 1972, in violation of Section 8(a)(3) and (1) of the Act may be summarized as follows: 1. Meyer initially was hired-by the Respondent in 1967, quit in 1968, was rehired in the spring of 1969, and worked thereafter for Respondent until he was discharged on April 25, 1972. 2. At the time of Meyer's discharge, he worked as an electrician. There are no issues relating to his industrious- ness or capability. The issues are to the question of whether his discharge was because of his union activity or because of "insubordination and demoralization of other employ- ees." 3. Meyer commenced his activities on behalf of the Union on December 19, 1971, by writing a letter to the Union, received a response to said letter, later met with a union representative and received union cards, and commenced passing out union cards around February 28, 1972. Meyer passed out around 50 union cards to fellow employees.' Thereafter, fellow employees returned signed union cards to Meyer and he sent such cards to the Union. During the union campaign, Meyer posted notice of union meetings at Respondent's plant and attended such meet- ings. The Union filed a representation petition concerning Respondent's employees on March 13, 1972, in Case 18-RC-8984. On March 31, 1972, a notice of representa- tion hearing in Case 18-RC-8984 was issued and the hearing date for such hearing was set for April'18, 1972, at 9:30 a.m. Meyer was the only employee who was present at the scheduled hearing on April 18. At the scheduled representation hearing, Meyer aided the Union by consult- Respondent employs around 140 employees. 202 NLRB No. 161 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing with the union representatives about the issues in the head of the union and you're mad," and my wife 0 representation case. Present for the Respondent at the scheduled representation hearing were Attorney Whittaker and another attorney. Respondent's officials and Supervi- sors Ronald Raczynski, John Yonker, and Monty Perkins, and a Frank Moore whose status is unrevealed by the facts. The parties executed a "Stipulation For Certification Upon Consent Election" at the scheduled hearing on April 18, 1972, in Case 18-RC-8984. This stipulation was approved by the Acting Regional Director for Region 18 of the NLRB on April 21, 1972. Said stipulation set the date for the representation election in Case 18-RC-8984 as June 8, 1972. 4. Meyer testified to the effect that, after he started his union activity in December 1971, remarks were made to him about the effect of unionization. Meyer's testimony is revealed by the following excerpts from his testimony in the record. A. I said, "I'll make one phone call and somebody will be out here in 24 hours." Q. -You said you knew what you were doing right from the start? A. Right. Q. What did you mean by that? A. I meant union cards I'd been hearing from this thing from when I started, they'd get on the loud speaker and holler, "If you were unionized you'd have to do it," they'd holler over the loud speaker at me, just to try to bug me. Q. What you said to John Yonkers was, as I understand what your testimony was, you knew what you were doing right from the start? A. Yes, by passing out these cards, and that's the only thing I meant, not by trying to run the plant or nobody else's plant, but they were picking on me ever since I started that. . I find this testimony to be of no value in the determining of the issues in this case. It is too imprecise as to circumstances. and as to identity of persons involved to have probative value. 5. Meyer also testified with respect to remarks made by employee Donny Yonker and Production Manager John Yonker on April 15, 1972. Meyer and his wife had been to a "Bingo" party and after such party had dropped by a local barroom. Meyer's testimony as' to what occurred is revealed by the following excerpts from his testimony: A. April 15 I went to the Bingo game in South Shore. That got over about 10 o'clock. We stopped in the Harbor Bar and ordered a bottle of beer, and pretty soon Donny Yonker came over. Q. Who is Donny Yonker? A. John Yonker's brother, and he said, "Are you going to turn me on," and I says, "Get away from me, you're drunk." We sat there, and pretty soon they left and then come back and Don Yonker said he was going to kick the shit out of me. MR. WHITTAKER: IS that Don or John? THE WITNESS: Don. A. He said he was going to kick the shit out of me, and I said, "Get away, the only trouble with you I'm said-and he got up and left. A. We come in the bar and sat down, and ordered two bottles of beer, and he came over. Q. Donny came over? A.. Donny came over, and he said, "Are you going to turn me on", and I says, "It looks like you've been turned on already. Get away, you're drunk," and a little while later John Yonker came over and said, "I hear you're going to kick the shit out of me," and I said, "Get away, ' you're drunk. The only thing that's ' the matter with you, I'm under union." And my wife got up and said something to him, and his wife pulled him away. And the same night he got picked up for no driver's license. Meyer was the only witness who testified to this incident. His testimony is confused and contradictory as to what happened. I do not find such testimony to be of probative value in determining the issues in this case. .6. Meyer, during the period of employment by Respon- dent, was prone to express his views in strong terms to fellow employees and to Foreman Davis. The facts are clear that such was true as regards his discussions with Roger Liljegren when Liljegren was a rank-and-file employee. The facts are clear also that this was true. as regards Meyer's discussions with Davis. The overall facts reveal that both Meyer and Davis had a genuine respectful regard for each other, that they did have strong arguments, and that such genuine regard continued despite the arguments. Both Meyer and Davis revealed in effect in their testimony that as men they still respect each other. The facts are clear that Meyer complained about management in terms of . remarks about. "piss poor management" or similar terms in • the presence of and directed to Foreman Davis. Davis testified in denial that such remarks were directed specifically at him. Davis' testimonial denial did not have the ring of truth. I credit Meyer's testimony to the effect that he directed such remarks to Davis. Davis' testimony as a whole with respect to "rounds" of arguments with Meyer and to being present when such remarks were made corroborates that Meyer's testimony on this point was truthful. The overall facts reveal that Foreman Davis was interested in getting work done, considered Meyer a good worker, and ignored such remarks. The facts reveal that other employees complained about management in the presence of foremen. Thus, employee Gacke made remarks about "piss poor management" -in the presence of or in such a manner that Foreman Davis would hear such remarks. 7. The facts reveal that Respondent's foremen and supervisors were not prone to discharge employees even for serious incidents of misconduct in the preceding several years before the discharge of Meyer. The facts reveal that Respondent had an employee named Sharp who engaged in several incidents of miscon- duct. Two such incidents involved fights,, and one incident involved shooting staples at an employee who was working. All of these incidents were in front of or known to CHICKASHA MOBILE HOMES 1059 supervisors. Respondent's action as to the fights merely involved Production Manager Yonker's speaking to the employees who had been in the fights. One of the fights involved Sharp and Gacke. What occurred is revealed by the following credited excerpts from Gacke's testimony. A. Well, we had the scaffold down. It was right after the dinner break and we just finished a trailer, and it was the whole trailer, or, part of it, and we had to bring the scaffold to reload the panels of lumber and one other helper, Danny Sharp, was harassing the two men that helped us load it all the time, and I asked him how about leaving them alone, "they've got some work to do, and we want, to get this loaded and get back up on the- roof." So he bad-mouthed me and used all the profanity he could use, and I didn't respond, I said, "Never mind, don't try to shove me around or there will be trouble." I went ahead and loaded it and we had the scaffold- and had it .up and I was getting more lumber and he pushed me a couple of times, and the second time I said, "Don't do it again," and as I was climbing the steps he gave me -another shove and I started laying into him. Q. Who broke up the fight? A. Doug Davis was out there. I did notice him pulling on Dan Sharp. I didn't notice anybody else out there because I was 'underneath the trailer. Q. What, finally- A. (Interrupting) Well, they ended up pulling them on out and I gotup from underneath there and I had a cut on my nose. I was bleeding and I was holding that and I walked up to the time clock and punched out, and said, "To hell with it, I'm going home for the day." Q. Did Davis reprimand Sharp for fighting? A. No. Q. Did he reprimand you? A. No. Q. Did you have any conversation with Mr. Yonker about it? A. John came around; He was at the other end of the plant, I guess. He asked me what happened, I told him, and said I was highly teed off because I didn't like doing things like this, and he said, Danny was kind of a troublemaker and pain in the neck. The other fight involved employees Virgil and Sharp. What occurred is revealed by the following credited excerpts from Swancutt's testimony. Q. (By Mr. Frisch) Mr. Swancutt, were you ever employed by Chickasha Mobile Homes? A. Yes, from October 16, 1969, to May 31, 1972. Q. Did you observe the fight that Mr. Gacke testified to? A. Yes, I did. Q. Did you observe any other fights on company time? A. Yes, Danny Sharp and Virgil, I don't recall his last name,' he was in the sheet metal department. Q. Which one was first? A. The one with Danny Sharp and Virgil, that was the first one, and Vick Leonards was foreman then and he walked around the two of them; he didn't do anything to break it up. Q. Were either one fired at that time? A. No. The staple shooting incident involved employees Swan- cutt and Sharp. What occurred is revealed by the following. credited excerpts from Swancutt's testimony. Q. Were you also a victum of Danny Sharp's horsing around? A. Yes. Q. What occurred? A. Several different times, when I carried paneling -I paneled the inner walls-he shot staples at me and one time a staple hit me up in the forehead above the eye. I went up to Leonards', John wasn't president at the time, so I told Vick Leonards, so Vick Leonards said he'd see about getting Danny Sharp checked, and later in the day Vick Leonards came back to me and said John wouldn't give him a check. Q. In other words, wouldn't discharge him? A. Wouldn't discharge him. Q. Did you talk to John Yonker about that? A. A couple of days later, as I recall, I went at the time to try to see John. I didn't find John, and I talked to Vick Leonards after that about the man, and I told' him if I lost the eye or anything-the president of the company-I said it wouldn't be Danny Sharp, whoever else was throwing staples or shooting staples, I said if I lost the eye it would be somebody else's job rather than the guy; Q. Who did you say that to? A. I think it was Vick Leonards, I don't remember if I got to John on that or not. Q. When was this, about? A. This was a good year and a half ago. Q. And Danny Sharp was not fired over this incident, or was he reprimanded, to your knowledge? A. No. Then I recalled ... . 8. Roger Liljegren was made a foreman about 2 weeks before April 25, 1972. 9. On or before April 24, 1972, Respondent hired an employee named Schooley. On the morning of April 24, 1972, Foreman Liljegren assigned Schooley to work installing water heaters. The employee who had been doing such work was Randy Rody. Rody was present on this date, but the record does not reveal his work assignment. Meyer noticed the assignment of work to Schooley. Meyer complained to employee Rowe around 9 a.m., about this assignment. Employee Dally was present and heard Meyer's remarks. What occurred is revealed by the following credited excerpts from Rowe's testimony.2 A. It was on April 24, I come along to check out the third .coach on.the finished line, and I was, I went through the door Ted was putting on a porch light, and he says, "Isn't that something?" And I kind of. turned around' and said, "What is that, Ted?" He said, "They 2 1 discredit Meyer's denial-of such conversation. Considering,Meyer's persuaded that. he has honestly confused the timing of events on April 24, propensity to complain, his truthful appearance in this proceeding, I am 1972, and has honestly forgotten this conversation. 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should put a new man on this job that doesn't know a thing about it." And he also stated that, "It looks like real piss poor management." Q. That was the statement he made to you? A. Yes. Q. Do you remember approximately what time of day that was? A. Oh, middle of the forenoon, about 9:30, I would say. Around 4:15 p.m. Meyer spoke to Foreman Liljegren about the work assignment to Schooley. The conversation occurred in the presence of a group of employees. What occurred is essentially revealed by the following credited excerpts from Meyer's testimony. A. I told Roger, "How come you're putting that man in that job," I said, "He doesn't know anything about it, why didn't you put me or Greg Mack in there," and, he said, "He's got to learn sometime," and I said, "It must be piss poor management," and walked away. Meyer testified to the effect that he used the term "piss poor management" only once. Liljegren testified to the effect that Meyer used the term "piss poor management" two or three times in the conversation. Considering the total facts and logical consistency thereof, I credit Liljegren over Meyer on this point. 10. After the foregoing incident, Foreman Liljegren spoke to Foreman Davis. The facts as to what was discussed between Foremen Liljegren and Davis were presented only by the testimony of Liljegren. It is clear that Liljegren's testimony is conclusionary and fragmentary in nature. Such 'testimony is revealed by the following excerpts from Liljegren's testimony. Q. What did you do after this conversation with Meyer? . A. Well, Doug Davis and I were-I went and talked to him about it, and then he says, "We better go see John about it." Q. John Yonker? A. Yes. I credit Liljegren's testimony to the effect that he discussed what had occurred between him and Meyer and to the effect that he and Davis decided to go to see Production Manager John Yonker. 11. Around quitting time on April 24, 1972, Foremen Davis and Liljegren went to see Production Manager John Yonker about the incident previously described as occur- ring around 4:15 p.m. wherein Meyer made statements about "piss poor management" to Liljegren. The evidence as to what Davis and Liljegren said to Production Manager Yonker was presented loosely and in a conclusionary manner. Thus, Liljegren merely testified to the effect, and I credit such testimony, that he and Davis went to see Yonker and discussed "seeing if we could get rid of Ted." Cross-examination of Liljegren, however, indicates that he was questioned as to whether he thought Meyer should be discharged on this occasion. As indicated, the testimony of Respondent's witnesses was. fragmentary and conclu- 3 Considering all of the facts in the case and logical consistency thereof, I discredit Yonker's testimony to the effect that he would have terminated sionary. Liljegren, on cross-examination, was asked if his opinion had been asked as to whether or not Meyer should be discharged. Liljegren testified to the effect that he had been asked as to whether Meyer should be discharged and that he had replied, "Yeah, he should be." Liljegren did not identify the "management" person who questioned him as to whether Meyer should be discharged, nor did Liljegren in his testimony place the timing of such questioning. It is clear from all the facts of this case that if such question were asked and answered, it reasonably occurred in the discussion between Foremen Davis and Liljegren and Production Manager Yonker on April 24, 1972. I credit Liljegren's testimony to the effect that he was questioned as to whether he thought Meyer should be discharged and to the effect that he replied that he should be. Considering all of the facts, I conclude that Yonker or Davis asked such question as to whether Meyer should be discharged and that the question and Liljegren's answer that Meyer should be discharged occurred in the context of the discussion between Foremanen Davis and Liljegren and Production Manager Yonker on April 24, 1972. Davis did not testify concerning what he and Liljegren said to Yonker. Davis was questioned about remarks he made to management concerning the incident. The questions directed to Davis on this point were leading in nature and entitled to very little weight. I am persuaded that at most Davis' testimony would establish remarks made at a time other than the conversation on April 24 to Production Manager Yonker. John Yonker's testimony as to what was discussed between Foremen Davis and Liljegren and' himself is revealed by the following excerpts from the record. Q. Tell me, if you would, just as narrative, what happened, what your involvement was. A. Oh, they was talking about how Ted was saying piss poor management. Q. They? A. Doug and Roger. Q. O.K. A. And they was kind of concerned about it because it was getting kind of loud. So I said I would check with Monty in the morning and see what we could do. Considering the foregoing and a fair inference from all of the facts, I conclude and find that Foremen Davis and Liljegren saw Production Manager Yonker, told him about the statements by Meyer, engaged in a discussion concern- ing Meyer's union activities, and discussed whether or not Respondent could get rid of Meyer. 12. The facts clearly reveal that Production Manager John Yonker knew of Meyer's activities on behalf of the Union at the time when Foremen Davis and Liljegren spoke to him about the April 24, 1972, incident. Yonker decided because of all of the circumstances, the incident, and Meyer's union activities, that he should contact Plant Manager Perkins.3 13. On the morning of April 25, 1972, Production Manager Yonker spoke to Plant Manager Perkins about the incident of April 24, 1972, involving Meyer and Meyer immediately if he had been unaware of his union activity. CHICKASHA MOBILE HOMES 1061 Foreman Liljegren. What occurred is essentially revealed by the following credited excerpts from Perkins' testimony. A. Well, it was the next morning, which would be April the 25th, about 7 o'clock in the morning, John came to me and- Q. (Interrupting) This is John Yonker? A. (Continuing)-John Yonker came to me and told me that, the testimony that's been given here is what he referred to, and he told me that he didn't know what to do about the situation due to our involvement. Q. Be absolutely clear about,this. What situation, what involvement? A. All right, that Ted Meyer had confronted Roger Liljegren and told him it was piss poor management, that Roger and Doug had talked to John the evening before that morning when John Yonker was talking to me, and he told me they had talked about it and they asked John to see what we could do about it, if anything. John asked me what I thought we could do and I said, "Under the circumstances, I think we should call Chickasha," and we did make the phone call. Q. What are the circumstances you're talking about? When you say "circumstances", are we talking about a pending union election, or are you talking about something else? A. Well, the pending union election, yes. It is clear from all the facts that Yonker discussed with Perkins the April 24, 1972, incident between Meyer and Liljegren the fact that Meyer had been engaged in union activity, and that he would like to discharge Meyer but did not know what to do. Perkins decided to call the home office to see what should be done.4 14. Shortly thereafter on April 25, 1972, Plant Manager Perkins telephoned Respondent's home office concerning the Meyer incident on April 24, 1972. Ronald Raczynski, general manager for Respondent, was the recipient of Perkins' telephone call. Ronald Raczynski had the tele- phone call converted into a three-way conference call. Thus, Perkins and Yonker were at one telephone, Ronald Raczynski was on another telephone, and Attorney Whittaker was on another telephone as part of the conference call. Respondent's witnesses, Yonker and Perkins, testified to the effect that the telephone call to Ronald Raczynski occurred. Except for brief and conclusionary statements, their testimony does not reveal what occurred. Ronald Raczynski testified in more detail as to what occurred in the initial telephone conference call with Perkins and Yonker. It is clear that Yonker and Perkins discussed the April' 24, 1972, Meyer's incident with Raczynski and Attorney Whittaker, the remarks made by Meyer, that Liljegren was a new foreman, that Liljegren had not appreciated the remarks, that Liljegren had not known what to do, that Liljegren had asked Foreman Davis for advice, that Foremen Davis and Liljegren had spoken to Production Manager Yonker, that Yonker had spoken to Plant Manager Perkins, that they were aware of Meyer's union activity, that Perkins and Yonker considered the remarks by Meyer to be a demoralizing type comment, that Yonker and Perkins wanted Ronald Raczynski's approval to terminate Meyer, and that they were seeking such clearance because Meyer had been involved in union activity. Although the testimony clearly does not reveal the details with exactitude as to who said what or the timing of remarks with other remarks, it is clear that a discussion occurred concerning what Respondent would have done absent Meyer's engaging in union activity. Considering the total circumstances, I find it proper to infer that Respon- dent's attorney, Whittaker, advised Respondent' s officials during the conference of their right to discharge Meyer if they would have discharged Meyer if he had not engaged in union activity. I find it proper to infer that either Ronald Raczynski or Whittaker questioned Yonker as to whether he would have discharged Meyer if he had not been engaged in union activity. Yonker told Ronald Raczynski that he would have discharged Meyer on the spot if he had not been engaged in union activity, that he had checked with Perkins because Meyer had been engaged in union activity, and that Perkins had thought it best to check with the home office. Ronald Raczynski indicated to Perkins and Yonker that there was -cause to discharge Meyer because of "insubordi- nation and demoralization of other employees" but that the facts should be verified by written statements and reported back before the discharge of Meyer.5 15. On April 25, 1972, following the above telephone conference with the home office, Production Manager Yorker proceeded to prepare written memorandums and have the same signed by various persons having knowledge of the remarks made by Meyer on April 24, 1972. Yonker secured such signed memorandums from Foreman Lilje- gren and employees John W. Rowe, Jake Daily, and Martin Lehna. Yonker secured a signed statement, as indicated, from Lehna, to the effect that Lehna overheard the remarks made by Meyer to Liljegren. Around this time Rowe and Dally indicated to Foreman Liljegren that they had heard Meyer made a similar remark on the morning of April 24, 1972. Liljegren reported this to Yonker who secured a statement to such effect from Rowe and Dally. During Respondent's activity in securing the statements referred to above, employee Lehna, who gave a statement to Yonker, made remarks to Liljegren as revealed by the following credited excerpts from Liljegren's testimony. A. He thought that was a heck of a deal. Ted working out there, he wasn't tied to the job, you know, if he didn't like it out there he could leave whenever he wanted to. ° Considering all of the facts in the case, I discredit Perkins' conclusion- ary testimony to the effect that Yonker would have terminated Meyer on the spot if it had not been for Meyer's union activity. 5 The facts are based upon a composite of, the credited aspects of testimony of Ronald Raczynski, Liljegren, Perkins, and Yonker and an inference from the logical consistency of facts. Liljegren testified to the effect that Rowe's remarks about Meyer's remarks about "piss poor management" came to his attention after Meyer's discharge. Yonker testified to the effect that Rowe told Liljegren of such remarks during the April 25 investigation of such remarks about "piss poor management." Ronald Raczynski testified to the effect that the motivation of "insubordi- nation . and demoralization of the employees" came from this first conversation as the conclusion of why Respondent was terminating Ted Meyer. 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. This is what Martin Lehna said? A. Yeah, he said he shouldn't be knocking. manage- ment. During Respondent's activity in securing the statements referred to above, an employee, unidentified except to the extent that Yonker, stated that it could have been Jake Dally, asked Yonker why he was letting Meyer "shoot off his mouth." I note the remarks made to Liljegren by Lehna, and to Yonker, by an employee as indicated above. Under the circumstances, coming in the midst of a verification investigation following a preliminary tentative decision to discharge Meyer, I am not persuaded that such remarks have significant value in determining motivation in this case. Considering the totality of the facts, I find that such remarks are outweighed by the factors tending to reveal improper motivation. 16. After Yonker had secured the signed statements referred to above, Perkins and Yonker called the home office again. There again occurred a telephone conference call with the parties to -the conference call being Respon- dent's attorney (Whittaker) and officials Ronald Raczynski and Stanley Raczynski, Perkins, and Yonker. Perkins and Yonker read the memorandum statements referred to above to the two Raczynskis and Attorney Whittaker. President Stanley Raczynski told Yonker and Perkins that Meyer would have been terminated under normal circumstances, that the matter would be treated as if there were no union activity at all, and that Meyer should be terminated. 17. Production Manager John Yonker,after the above telephone conference call, proceeded to discharge Meyer. What occurred is revealed by the following credited excerpts from Yonker's testimony. Q. At the conclusion of that telephone conversa- tion, what did you do next? A. I went to my office and called Ted to the office and I asked him if he had his tools and he said, yes. And I said, "Lay them on my desk." And he laid them on my desk and I handed him his checks. And he said what was this for and I said, "Insubordination and demoralization of other employees." Q. O.K. Go ahead, tell me what next happened. A. Then he asked me if I knew what I was doing or he said, "Do you guys know what you are doing?" And I said, "Yes." Q. Excuse me, go ahead. A. He asked me, he said, "Do you guys know what you are doing?" And I said, "Yes." And he kind of laughed and said, "I knew whatI was doing right from the start." Q. What happened then? A. Then he tried to call his wife and couldn't get a hold of her, so I gave him a ride home. Q. You gave him a ride home? A., Yes. Either before or shortly after the foregoing event, Yonker prepared termination papers for Meyer. Such papers reflected that the reason for Meyer's termination was 6 The facts are based upon Urban's credited testimony. Swancutt testified about similar remarks made in the presence of Foreman Davis after "Insubordination and Demoralization of other employ- ees." 18. ' On or about April 26, .1972, Respondent prepared and distributed the following letter to its employees. Chickasha Mobile Homes Inc. April 26, 1972 Dear Fellow Employees: How come Ted Meyer has been discharged? This is a question we have been asked. Here is the answer: On April 24th, Ted Meyer of the plumbing and electrical department criticized his foreman about the assignment of an employee in the department. The Foreman, Roger Liljegren, gave Ted Meyer an expla- nation. Ted Meyer then, in a loud voice stated "That is p-poor management". This remark was made several times to Roger. Ted Meyer also made these remarks to several other employees throughout the plant. It became clear. to us that Ted Meyer was deliberately attempting to demoralize and upset both his supervisor and other employees. Because Ted Meyer was a leader for the Union attempting to organize our plant, Chickasha manage- ment was concerned that any desciplinaryaction might be interpreted as an unfair labor practice. After gathering all of the facts about the incidents regarding Ted Meyer's behavior, including the signed testimony of several employees who heard these very insubordinate statements, Chickasha management asked ourselves "What disciplinary action would we take if any other employee created these incidents?" It is ' the unanimous opinion of the Foremen, Plant Production Manager, and President of Chickasha Mobile Homes, Inc., that this type of conduct leaves us no alternative, whether the employee is a union leader or not. We feel that all employees must be treated the same. It is unfair to the good employee to allow another employee to get by with gross insubordination. Management at Chickasha wants to do what is right. If you have questions, please feel free to discuss them with me. JOHN YONKER /S/ JOHN W. YONKER. 19. On April 26, 1972, in June 1972, and in early September 1972, employee Urban made remarks directed to Foreman Liljegren about "piss poor management." Foreman Liljegren took no action with respect to such remarks made by Urban.6 Considering all of the foregoing, I am persuaded and conclude and find that the facts preponderate for a finding that Respondent discriminatorily discharged Meyer on April 25, 1972. The facts are clear that Meyer engaged in substantial union activity and that Respondent knew that receipt of Respondent's April 26, 1972, letter. I found Swancutt's testimony on this point too confusing to constitute persuasive evidence. CHICKASHA MOBILE HOMES 1063 he was a union adherent and had been the lone employee present with union officials on April 18, 1972, when a scheduled representation hearing resulted in a stipulation for a consent election . Excepting for the events as to Meyer's discharge, there is no evidence of union animus in this case. This, however, does not preclude a finding of union animus when disparate treatment reveals that discriminatory motivation is present. Respondent's motivation has to be determined by considering the motivation of all who participated in the decision to discharge Meyer . In this case, the persons who participated in the decision to discharge Meyer were Davis, Liljegren, Perkins, Yonker, the two Raczynskis, and Attorney Whittaker. The facts in this case reveal that Meyer had made remarks about "piss poor management" to Foreman Davis on a number of occasions prior to Meyer's discharge and that Foreman Davis took no action as to such remarks. Under such circumstances, absent the knowledge of Meyer's union activities , I am persuaded that Davis would have advised Liljegren that the matter should be ignored. I am persuaded that Davis' knowledge of Meyer's union activities contributed to his and Liljegren's reporting the remarks (of Meyer to Liljegren about "piss poor" manage- ment) to Production Manager Yonker. Liljegren's testimony about the incident and as to how he felt is not persuasive . Rather, I am persuaded that his testimony that he felt "bad" revealed an attempt to try to say what he thought was expected rather than to set forth true facts as to his motivation . I find Foreman Liljegren's disparate treatment of employees Meyer and Urban as to the use of the words "piss poor management" directed to him to be revealing of a discriminatory attitude toward Meyer because of his union activity . No evidence of explanation of this disparate treatment was offered. The incident of Urban's use of the words "piss poor manage- ment" on April 26, 1972, the same date that Respondent expressed by its letter a clear policy that such conduct was serious and warranted a discharge , adds weight to such a conclusion and belief of discriminatory attitude. The facts also reveal that Yonker 's past handling of "fights" and related misconduct is clearly indicative that Yonker was not prone to take harsh action against employees . I am persuaded from all the facts that , absent knowledge of Meyer's union activity, Yonker would have solved the problem in the case of Meyer without discharge or consultation with other officials. I am persuaded that the two Raczynskis, Perkins, and Attorney Whittaker were presented incomplete facts, that they were not aware of Davis' condonation of similar statements (of "piss poor management") by Meyer, that they were not aware of Yonker 's lenient handling of misconduct, and that they did not know of the true motivation in Yonker's, Davis', and Liljegren's minds, contributing to the reason that they were being consulted as to the discharge of Meyer. Considering all of the foregoing, I am persuaded that Meyer's union activity was the contributing cause as to why Yonker and Perkins consulted with the home office, as to Meyer's discharge . I am persuaded therefore , that Meyer would not have been discharged but for his union activity, and that Respondent, by the discharge of Meyer on April 25, 1972, violated Section 8(a)(3) and ( 1) of the Act. I so conclude and find. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring, in connection with the Respondent's operations described in section I, above, have a close, intimate , and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been found that the Respondent discharged Theodore Meyer on April 25, 1972, in violation of Section 8(a)(3) and (1) of the Act, the recommended Order will provide that Respondent- offer him reinstatement to his job, and 'make him whole for loss of earnings within the meaning and in accord with the Board's decisions in F. W. Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating Co., 138 NLRB 716, except as specifically mod- ified by the wording of such recommended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that the Respondent cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Chickasha Mobile Homes, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. American Federation of Grain ,Millers is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Theodore Meyer on April 25, 1972, Respondent has discouraged membership in a labor organization by discriminating in regard to tenure of employment, thereby engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 4. By the foregoing and 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 proscribed by Section 8(a)(1) of the Act. 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER? Respondent, Chickasha Mobile Homes, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment because of their union or protected concerted activities. J (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act except to) the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Offer to Theodore Meyer immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority, or other rights previously. enjoyed, and make him whole for any loss of pay suffered by reason of the discrimination against him in the manner described above 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 analyze the amount of backpay due under the terms of this recommended Order. (c) Post at Respondent's plant at Watertown, South Dakota, copies of the attached notice marked "Appen- dix."8 Copies of said notice, on forms provided by the Regional Director for Region 18, after being,duly signed by Respondent's representatives, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspic- uous places, including all places where notices to employ- ees 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 18, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith. 7 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. 8 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer to Theodore Meyer immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights previously enjoyed, and make him whole for any loss of pay suffered by reason of the discrimination against him. WE WILL NOT discharge or otherwise discriminate against employees in regard to hire or tenure of employment, or any term or condition of employment because of their union or protected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accordance with Section 8(a)(3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization, except to the extent provided by Section 8(a)(3) of the Act. CHICKASHA MOBILE HOMES, INC., (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 316 Federal Building, 110 South 4th Street, Minneapolis, Minnesota 55401, Tele- phone 612-725-2611. F