Universal Mobile Homes

UNIVERSAL MOBILE HOMES 699 Universal Mobile Homes and Aluminum Workers International Union, AFL-CIO. Case 10-CA-10457 May 20, 1974 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO On February 27, 1974, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed cross-exceptions and an answering 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 briefs and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge only to the extent consistent herewith. The complaint alleges that Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire employee-applicant John Bowling on July 9, 1973. The Administrative Law Judge dismissed the com- plaint on the ground that the General Counsel had not met his burden of proof. We disagree. John Bowling was employed by Masdon Indus- tries, Inc., at Brilliant, Alabama, until he went on strike and picketed with other employees in May 1973. During the course of the strike, Bowling sought employment at Respondent's plant in Winfield, Alabama, which is about 8 or 9 miles from where he was previously employed at Brilliant. Shortly before July 4, 1973, Bowling appeared at the Respondent's plant seeking employment as an electrician. Bowling credibly testified that at this time he met Richard C. Nix, a foreman of Respondent, with whom Bowling had once worked. Nix told Bowling to see Donald Silas, Respondent's plant superintendent. Bowling proceeded to Silas' office and asked Silas for electrician work, mentioning that he had talked to Nix and had worked with him before. Silas asked Bowling for his social security card and whether he had tools. Bowling responded that he had neither with him, but said that he would bring the social security card the next morning. Silas replied, "Fine," and then directed Bowling to go with Leland Gann, a leadman electrician with whom i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence Bowling had worked previously, to check out whatever tools Bowling needed. After Bowling had purchased the necessary tools and signed for them, according to credited testimo- ny, Gann placed Bowling in a trailer, where he worked for 10 or 15 minutes. At that point, Gann summoned him and said, "I hate this John but that girl has come back that was working here and so she had a doctor's slip, they're going to have to give her the job back, so you come back after the holidays." Bowling proceeded to talk to Silas who in his testimony admitted that he informed Bowling that he would "be glad to put him on" if Bowling checked back with him the next day or the day following. Silas also admitted that "If that woman hadn't called in, and brought in an excuse, I probably would have put him to work." At another point in his testimony, Silas conceded that he did hire Bowling on this occasion. On Monday, July 9, 1973, Bowling returned to Respondent's plant and proceeded to Silas' office where about nine persons were waiting. When Silas observed Bowling, he told him to wait in the lobby. As he was proceeding to the lobby, Nix hollered at Bowling and uttered the following credited remark: John, I'm not going to beat around the bush about this, they should have told you when you was here before, they are not going to work you here because you-somebody put the finger on you, that you were the ring leader of that strike at Brilliant. Bowling thereupon immediately left the plant. Although the Administrative Law Judge credited Bowling with respect to the critical statement attributed by him to Nix, the Administrative Law Judge nonetheless concluded that the fact that Nix made these remarks is not sufficient proof standing alone to impute a discriminatory motive to the Respondent in refusing to hire Bowling, notwith- standing an earlier commitment to hire him. On the other hand, the Administrative Law Judge acknowl- edged that there was a strong suspicion that the real reason for Bowling's rejection for a job was unlawful, based on the fact that there is no credible reason for Respondent's rejection of Bowling; there is no apparent or reasonable explanation for Silas' falsify- ing the reason for his failure to continue Bowling in his employment on the first visit or to assert falsely that he did not see him on the second occasion; and there is no plausible explanation as to why Respon- dent hired a "young boy" rather than Bowling, an convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. 210 NLRB No. 115 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD experienced electrician, and thereafter hired other employees, nevertheless rejecting Bowling as an employee. However, the Administrative Law Judge concluded that "there has been no showing of employer union animus," for he refused to infer from Nix's remarks that the Respondent had knowledge of Bowling's strike activities, that the Respondent harbored union animus toward Bowling, and that the rejection of Bowling gratified the Respondent's union animus. Contrary to the Administrative Law Judge, we find that this is a classic discriminatory refusal to hire and that Nix's remarks are indeed attributable to Res- pondent. Thus, Bowling was told by Nix that "they are not going to work you here because . . . you were the ring leader of that strike at Brilliant." (Emphasis supplied.) Nix did not preface his remarks as his opinion and in fact, in referring to "they," gave the appearance of having knowledge from Respon- dent as to its reasons for refusing to hire Bowling. In addition, Nix in making the statement was in fact a supervisor and agent of Respondent. Thus, his supervisory and agency status was alleged in the complaint and was admitted in Respondent's answer. Moreover, in his affidavit, Nix stated that he considered himself at the time to be a supervisor, and there were 50 to 60 men in his department whom he trained and directed and concerning whom he exercised nonroutine judgment. Finally, it is clear that Bowling would have been employed, as eviden- ced by Silas' earlier commitment to hire him, as well as by the fact that vacancies existed after July 9, 1973, for which he could have been hired. In conclusion, under all these circumstances, we find that Respondent failed and refused to employ Bowling on July 9, 1973, contrary to its earlier commitment to hire him, and that the reason Respondent refused to hire him was because Bowling had engaged in protected union activities in striking and picketing at Masdon in Brilliant, Alabama. Such refusal to employ Bowling constitutes a violation of Section 8(a)(3) and (1) of the Act.2 CONCLUSION OF LAW 1. Respondent is an employer whose operations affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. Aluminum Workers International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By the refusal to employ John Bowling under the circumstances previously described, Respondent has discriminated with respect to his hire and tenure of employment, thereby discouraging membership in the Aluminum Workers International Union, AFL-CIO, and any other labor organization, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, Respondent has also interfered with, restrained, and coerced its employees in the exercise of their statutory rights guaranteed by Section 7 of the Act and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent violated Section 8(a)(3) and (1) of the Act in discriminatorily refusing to employ John Bowling, we will therefore order that Respondent make John Bowling whole for any loss of earnings he may have suffered as a result of the discrimination, by payment to him of a sum of money equal to that which he normally would have earned as wages from July 9, 1973, to the date of a valid offer of employment, less net earnings during such period, with backpay and interest thereon to be computed in the manner described by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. We shall also order that Respondent offer John Bowling immediate and full employment in the job he would have occupied absent the discriminatory refusal to employ him or, if that job no longer exists, to a substantially equivalent position, without prejudice to any seniority rights or privileges. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Universal Mobile Homes, Winfield, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating with respect to the hiring of John Bowling, by refusing to hire him because of his protected union activities, thereby discouraging membership in and concerted activities on behalf of the Union or any other labor organization. (b) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their statutory rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action: (a) Offer John Bowling immediate and full employ- 2 Congoleum Industries, Inc, 194 NLRB 359, Ashville-Whitney Nursing Home, 188 NLRB 235 UNIVERSAL MOBILE HOMES 691 went in the job that he would have occupied absent the discrimination against him or, if that job no longer exists, to a substantially equivalent position, without prejudice to any seniority rights or other rights and privileges. (b) Make John Bowling whole in the manner set forth in the Remedy section of this Decision, for any loss of earnings he may have suffered from July 9, 1973, to the date of a valid offer of employment. (c) 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 Order. (d) Post at its plant in Winfield, Alabama, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 3 In the event that this 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." engage in concerted activities for the purposes of collective bargaining or other mutual ai or protection, or to refrain from any such ac nvities. WE WILL offer John Bowling immediate and full employment in the job that he would have occupied absent the discrimination against him or, if that job no longer exists, to a substantially equivalent position, without prejudice to any seniority rights or privileges. WE WILL make John Bowling whole for any loss of earnings he may have suffered from July 9, 1973, to the date of a valid offer of reinstatement, together with interest thereon at 6 percent per annum. UNIVERSAL MOBILE HOMES (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street NE., Atlanta, Georgia 30308, Telephone 404-526-5760. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate with respect to the hiring of John Bowling, or any other person, by refusing to hire him because of his protected union activities , thereby discouraging member- ship in, or concerted activities on behalf of, Aluminum Workers International Union, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, including Aluminum Workers International Union, AFL-CIO, to bargain collectively through a bargaining agent chosen by our employees, to DECISION STATEMENT OF THE CASE LowELL GOERLICH, Administrative Law Judge: The charge filed by Aluminum Workers International Union, AFL-CIO, herein called the Union, on November 6, 1973, was served on Universal Mobile Homes, the Respondent herein, by registered mail on the same date. A complaint and notice of hearing was issued on December 5, 1973. The complaint charged that the Respondent on or about July 9, 1973, failed and refused to hire employee-applicant John Bowling because of his union affection in violation of Section 8(aX3) and (1) of the National Labor Relations Act, as amended, herein referred to as the Act. The Respondent filed a timely answer denying that it had engaged in or was engaging in any of the unfair labor practices alleged. The case came on for trial on January 15, 1974, at Winfield, Alabama. Each party was afforded a full opportunity to be heard, to call, examine, and cross- examine witnesses , to argue orally on the record, to submit 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proposed findings of fact and conclusions , and to file briefs. All briefs have been carefully considered. FINDINGS OF FACT,' CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation with an office and place of business located at Winfield, Alabama, where it is engaged in the manufac- ture of mobile homes. Respondent, during the past calendar year, which period is representative of all times material herein, sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Alabama. Respondent is, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union 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 First: The General Counsel claims that Richard S. Nix, a foreman, made the following remarks to John Bowling, the alleged discriminatee, on July 10, 1973, "John, I'm not going to beat around the bush about this, they should have told you when you was here before ... they are not going to work you here because you-somebody put the finger on you, that you were the ring leader on that strike at Brilliant." 2 Based upon this remark, the General Counsel reasons that Bowling was unlawfully rejected as an employee by the Respondent. Nix, in an affidavit,3 denied that he had made the remark to Bowling, and the Respondent denied that it had discriminatorily rejected Bowling for employment. Thus, a prime consideration is credibility.4 The witnesses agree that Bowling appeared at the Respondent's plant shortly before July 4, 1973, seeking employment as an electrician. On this occasion , after an interview with Plant Superintendent Donald Silas , Bowling was sent to the "electrician's table" in the plant. Almost all the other pertinent testimony is in conflict. Bowling and Nix agree that Bowling appeared at the plant more than one time . Silas claims he saw Bowling at i The facts found herein are based on the record as a whole and the observations of the witnesses. 2 Sometime prior to his appearance for work at the Respondent 's plant, Bowling had engaged in e strike at Masdon Industries, Brilliant, Alabama, a distance of 8 or 9 miles from Winfield, Alabama 3 Nix, about a week before the trial , had quit his employment with the Respondent and had removed himself to Texas. On the day of the trial he was not available for testimony . The parties stipulated that if he were called as a witness he would testify as set forth in his affidavit which was admitted without objection as part of the record. 4 In that Nix did not appear as a witness, the demeanor of Nix , of course, may not be considered In respect to Bowling's account of Nix's remarks, Bowling's demeanor has not been relied upon . The probabilities have been weighed in light of the evidence, the demeanor of the witnesses who the plant on only one occasion. On this point, Silas is discredited. Bowling testified that about a week before the Fourth of July he sought employment at the Respondent's plant. He met Nix coming through the guardshack at the gate. Nix directed Bowling to "see Mr. Silas." Nix admits that he saw Bowling standing in the guardshack, but denies that he spoke to him. In view of the fact that Nix and Bowling were acquainted and had previously worked together it seems unreasonable that Nix would not have spoken to Bowling. It is found Nix did direct Bowling to Silas. According to Bowling he proceeded to Silas' office which was "upstairs." He said to Silas, "I'm John Bowling, I've talked to Nix around here . . . I've worked with him before, I'd like an electrician's job." Silas asked Bowling for his social security card and whether he had tools. Bowling answered that he had neither with him. Bowling said that he would bring the social security card on the following morning. Silas replied, "Fine," and put Bowling's slip "where you put your dependents on" in the drawer. Silas said that Leland Gann, who was standing in the office,5 would show Bowling where the toolcrib was. Gann took Bowling to the toolcrib where Bowling purchased necessary tools and signed for the purchase. Gann then placed Bowling in a trailer, where he worked for 10 or 15 minutes, after which Gann summoned him and said, "I hate this John but that girl has come back that was working here and so she had a doctor's slip, they're going to have to give her the job back, so you come back after the holidays." Bowling returned the tools to Gann and asked him to turn them in and "rub [his] name off the slip." Silas' version differs. Silas testified that he was "down- stairs" when he first saw Bowling, whom he had not seen before. Bowling asked Silas for a job and Silas, pointing, told him "to go back and wait around the electrician's table at the back part of the plant," and he would find out whether he had an opening.6 Silas said that he did not tell him to see Gann. After Bowling left for the electrician's table Silas checked the timecards at the gate and on his way back "somebody gave word" that a female electrician had called in and was bringing a doctor's excuse. Silas directed Bowling to go to the front office to fill out an application.? According to Silas, the female electrician, Deborah (Morrison) McCluskey, had been absent for 2 days without calling in her absence and had called in about 7 a.m., about 5 minutes after Silas had first interviewed Bowling, and reported that she would be returning to work. Silas testified, and the record as a whole. Bowling's demeanor has been considered in respect to those witnesses who testified in contradiction to his testimony Based upon such comparison , Bowling appears to be the more credible witness 5 Leland Gann was a leadman electrician working for the Respondent with whom Bowling had worked previously 6 Silas testified Mr Bowling come and said he knowed Joe Gann , said he was an electrician, and wanted to know if we had an opening. I told him I didn't know, to go back to the electrician's table, and wait around until I got a chance to get back there. 7 Apparently Silas did not reveal to Bowling the reason for his failing to hire him The female employee reference does not appear in Silas ' affidavit. UNIVERSAL MOBILE HOMES said the female electrician appeared for work at about 9 a.m. Silas first testified that he was "positive" that he did not inform Bowling that he would "put him on" after the holiday.8 However, when Silas was shown his affidavit, he admitted that he informed Bowling that he would "be glad to put him on" if he would check back with him .9 Silas testified, "If that woman hadn't called in, and brought in an excuse, I probably would have put him to work." Leland Gann's version differed to some degree from that of Silas and Bowling. Gann agreed that he had worked with Bowling at Winchester Homes. According to Gann, on the day Bowling appeared at the plant Silas motioned Gann to come toward the superintendent's office where he told him to tell Bowling "to wait around in the electrician's department, to see if there were any openings." Silas said that "if there was he might put him on." Gann escorted Bowling to the electrician's table. Later Silas appeared and Gann heard Silas tell Bowling that "he didn't have any openings, to check back with him." Gann denied the toolcrib incident or that he had put Bowling to work. Gann said a young boy was hired the following week 10 as an electrician tie-off. On the subject of Deborah (Morrison) McCluskey, Gann testified that she had been ill the day before Bowling had appeared for employment, which was the only day she had been absent. She returned to work "a little after seven," before Bowling had left the plant. McCluskey had called in the day before, stating that she was sick. Silas asserted that he had seen Bowling only one time at the plant. Bowling claimed that he had returned to the plant on July 9, 1973, and proceeded to Silas' office where about nine persons were waiting. When Silas observed Bowling he told him to wait in the "lobby." On the way, Nix "hollered" at Bowling and uttered the remarks set out above. Bowling immediately left the plant. Second: The first question is: Why did Silas discontinue Bowling's employment on his first appearance at the plant? In this regard, the evidence is convincing that Silas actually hired Bowling. Such finding is not only supported by the fact that Silas testified that he "probably" would have hired Bowling had not McCluskey phoned that she was reporting for work, but, in fact, Silas admitted that he did hire Bowling. Silas testified: Q. Was Bowling the only job applicant that day? A. That was hired? Q. Yes. A. Yes, Sir. Bowling's credibility is enhanced by Silas' admission because Bowling claimed that he did commence work. Bowling's credibility is also enhanced by the fact that he recited in his testimony substantially the same reason on which Silas claimed he relied for rejecting him for employment. It is unlikely that Bowling could have obtained this information except from a company source. Additionally Bowling's testimony is enhanced because of the material conflicts in the testimony of Gann and Silas. 8 Silas testified "I told him to fill out an application, because I don't know the man until I've looked over his application, check his background" Nevertheless , Silas admitted that sometimes persons were employed before they filled out applications 0 Silas' affidavit read "I went to the guard shack to count the time cards, 693 Thus it is concluded that Silas seized upon McCluskey's absence as a pretext, to which he sought to add credence by fabricating the phone call, an additional day's absence, a doctor's report, and a late report for work, all of which did not conform to Gann's testimony. Moreover, having examined the timecards shortly after McCluskey had reported for work, Silas must have known that she was on the job at the time he approached Bowling. Indeed, had Gann's testimony been false on these points and Silas' testimony true, surely the Respondent would have prod- uced McCluskey's timecard or the doctor's report. "[TJhe production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse." Interstate Circuit, Inc. v. U.S., 306 U.S. 208, 226 (1939). Thus it is concluded that Bowling's employ- ment was not discontinued for the reason advanced by Silas. Third.- The final question involves whether Silas refused to employ Bowling on his second appearance at the plant because of his union affection. This question, of course, presumes that Bowling appeared at the plant on the second occasion and contacted Silas as he claimed. Having found Silas to have been an unreliable witness and Bowling a reliable witness, and, it appearing in Nix's affidavit that Bowling had visited the plant on more than one occasion looking for a job, it is found that Bowling requested employment from Silas on the second occasion as Bowling claimed. It is also found that Nix uttered the remarks attributed to him by Bowling. Nix was acquainted with Bowling and no doubt knew his history as a striker. With this in mind and aware that Bowling had been refused employment when jobs were available, Nix, by his remarks, simply confirmed what a reasonable person would have concluded under the circumstances. However, the fact that Nix made these remarks is not sufficient proof standing alone to impute a discriminatory motive to the Respondent. Nevertheless, these factors create a strong suspicion that the real reason for Bowling's rejection for a job was unlawful. First, Silas is a discredited witness ; second, except that the rejection of Bowling be interpreted in discriminatory terms, there is no apparent or reasonable explanation for Silas' falsifying the reason for his failure to continue Bowling in employment on the first occasion or to falsely assert that he did not see him on the second occasion ; third, the record is barren of any plausible explanation as to why the Respondent hired a "young boy" rather than the experienced electrician, Bowling, and thereafter in July and August hired other employees, nevertheless, rejecting Bowling as an employee; fourth, no credible reasons were advanced for the Respondent's rejection of Bowling. As was said in Ames Ready-Mix Concrete, Inc. v. N. L R B., 411 F.2d 1159, 1161 (C.A. 8, 1969), " '. . . when every other plausible 'motive has been eliminated and the reasons advanced and not persuasive, the union activity may well disclose the real motive behind the employer's action.' " However, a strong suspicion is not enough to support the and I came back and told him [Bowlingl that I had no openings that day, but that if he checked back with me the next day , or the day following. I would be glad to put him on." iu The parties stipulated that the Respondent hired employees in July and August 1973. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel's burden of proof. Moreover, there has toward Bowling, and that the rejection of Bowling gratified been no showing of employer union animus . Indeed, to the Respondent's union animus. Upon the basis of the sustain the complaint one must infer from Nix's remarks record as a whole, these inferences may not be drawn. that the Respondent had knowledge of Bowling's strike [Recommended Order omitted from publication.) activities, that the Respondent harbored union animus