Mobile Home Estates, Inc

MOBILE HOME ESTATES Mobile Home Estates, Inc and International Union, Allied Industrial Workers of America, AFL- CIO, and its Local 712 Cases 8-CA-17640, 8- CA-18405, 8-CA-19660, 8-CA-19662, 8-CA- 19663, 8-CA-19778, and 8-CA-19779 January 26, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On August 24, 1988, Administrative Law Judge Martin J Linsky issued the attached decision The Respondent filed exceptions, a supporting brief, and an answering brief to the Charging Party's cross-exceptions The Charging Party filed cross exceptions and a supporting and answering brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 as modified and to adopt the recom- mended Order3 as modified and set forth in full below 1 We agree with the judge's finding that the Re- spondent violated Section 8(a)(3) and (1) of the Act in discharging Jerry Talbert In adopting the judge's finding, we rely primarily on the timing of Talbert's discharge that occurred the same day the Respondent learned that Talbert had been elected union president The Respondent contends that Talbert was lawfully discharged after the Respond- ent learned that he had a felony conviction involv Ing drugs However, the judge found that the Re spondent knew about Talbert's felony drug convic- tion at the time it hired him 4 I The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In the absence of exceptions we adopt the judge s dismissal of allega tions that the Respondent violated Sec 8(a)(5) and ( 1) of the Act by making unilateral changes in terms and conditions of employment in April 1984 and by bad faith bargaining on April 10 1985 3 We adopt the judge s finding that a broad cease and desist order is appropriate because of the Respondent s history of unfair labor practices including contempt proceedings for failure to comply with the Board s decision in Mobile Home Estates 259 NLRB 1384 (1982) enfd in perti nent part 707 F 2d 264 (6th Cir 1983) cert denied 464 U S 1039 (1984) See H,ckmott Foods 242 NLRB 1357 (1979) Florida Steel Corp 244 NLRB 395 (1979) revd and remanded 646 F 2d 616 (1981) reaffd 262 NLRB 1460 (1982) enfd in pertinent part 713 F 2d 823 (1983) Thurston Motor Lines 263 NLRB 1101 (1982) 4 In his decision the judge relied on Talbert s testimony that at the pre hire interview he admitted to Personnel Director Jim Joseph that he had been arrested convicted of a felony and had been incarcerated for 4 months on a drug charge The Respondent claims that the judge ignored 691 Furthermore, and most significantly, the Re- spondent, through the testimony of its own wit- nesses, conceded that it knew the details of Tal- bert's drug conviction for some time prior to his discharge Personnel Manager Jim Joseph testified that with Talbert's authorization he obtained Tal bert's arrest record from the county sheriff "at least a couple of weeks" prior to the discharge Su- pervisor Gene Asher testified that he had known of Talbert's drug conviction "a week or two" prior to the discharge but that, although Company Presi- dent James Newman had told him to fire Talbert, he had delayed the discharge because it was the busy season The Respondent contends that Tal- bert's termination was part of a larger company effort to combat drug abuse in its plant President Newman reputedly was adamant that no one, in- cluding his own son-in law, would be permitted to continue to work if he had a drug problem Never- theless, despite this avowed strict antidrug policy, the Respondent did not immediately discharge Tal bert on receiving his arrest record Instead, the Re- spondent allowed Talbert to continue working, al- legedly intending to discharge him sometime prior to the end of his probationary period Such inac- tion by the Respondent is inconsistent with its as- serted strict antidrug policy Once the Respondent learned of Talbert's election as union president, however, it moved quickly to terminate his em- ployment In sum, based on the judge's credibility finding concerning what the Respondent knew when it hired Talbert, the delay in discharging Talbert after the Respondent admittedly knew the true facts of his conviction, and the timing of Talbert's discharge on the very day the Respondent learned he was elected union president, we find that the Respondent was motivated by Talbert s recent union activities rather than by his 1980 drug con- viction 5 Accordingly, we adopt the judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Talbert 2 The judge found that the Respondent violated Section 8(a)(3) and (1) by demoting Martha Whit- ney from "reworker" to "sweeper" position 2 days after she filed her first grievance as a union official Joseph s testimony that Talbert admitted only to a minor drug problem not identified as a felony and excepts to the judge s failure to make an explicit credibility resolution between the testimony of Jim Joseph and that of Jerry Talbert concerning what transpired at Talbert s interview We find however that the judge s reliance on Talbert s testimony shows that he implicitly credited Talbert s In sec III E par 8 of his decision the judge discussed the Respond ent s giving insurance papers to Jerry Talbert a few days before the union election as an indication that Talbert was going from probationary to permanent employee We do not rely on this as it appears from the record that the distribution of insurance papers was a routine function of a clerical employee 292 NLRB No 71 692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The judge further concluded that the Respondent violated the Act again in January 1987 when Whit- ney was recalled from layoff and was assigned to work in the new double-wide plant instead of in the single-wide plant where she had previously worked . We disagree for the reasons set forth below. Martha Whitney had served as a union steward since June 19866 and had been elected vice presi- dent of the Union in September. On October 24, as a union official, she gave management the first grievance she had ever signed. Two days later she was assigned to perform "sweeper" duties instead of the "reworker" duties that she had been doing. There was no difference in salary nor did the labor agreement specify any job classifications. A "reworker" is the last person to work on a mobile home before it is inspected and the "reworker's" duties include patching up and fixing things that are wrong or defective so that the home passes in- spection. A "sweeper" pushes a large sweeper and cleans the work area . It appears that there is con- siderable crossover among the various job duties. Although an employee may work primarily in re- working or sweeping, he or she will be frequently called on to perform other job duties. The Respondent contends that in order to en- hance productivity it needed only one "reworker," not two. Therefore, it required Whitney to perform sweeper work while Louis Alvarez continued per- forming rework duties. Although Whitney had trained Alvarez as a "reworker," Alvarez could also do some work that Whitney could not do, in particular, electrical work. Assuming arguendo that the General Counsel has established a prima facie case, we find that the Respondent has demonstrated that it would have retained Alvarez instead of Whitney as a "reworker" even in the absence of Whitney 's union activities. The fact that Alvarez is able to perform certain functions such as the electrical work that Whitney was unable to do provides a reasonable basis for retaining him rather than Whitney to per- form reworking duties. We reject as pure specula- tion the judge 's statement that Whitney could have been trained to do the electrical work . According- ly, we find that the Respondent did not violate Section 8(a)(3) of the Act by assigning Whitney to the "sweeper" position. Whitney was laid off in December. There is no allegation that the layoff was discriminatory, and the evidence indicated that the Respondent laid off employees every winter during the less busy months. In January 1987 Whitney was recalled 6 All dates are 1986 unless otherwise noted. from layoff and was assigned to work in the new double-wide plant . Many of the employees of the single-wide plant, including Whitney, were on layoff at that time. The judge credited Whitney's testimony that she was never offered a choice about whether or not she wanted to transfer, dis- credited Respondent's claim that Whitney accepted the transfer and could have turned it down, and concluded that she was transferred because of her union activities in violation of Section 8(a)(3) and (1). We disagree. As noted above , the double-wide plant opened for operation at a time when the single-wide plant had many employees out on layoff. There is no evi- dence to show when Whitney would have been re- called to the single-wide plant if she had remained on layoff. There was a bonus system in effect at the single-wide plant that had not been instituted at the double-wide plant.? However, the fact that Whitney could not qualify for bonuses in the double-wide plant , standing alone, does not support a finding that Respondent's recall amounted to a discriminatory transfer where, as here, at the time Whitney was recalled , there was not yet any work available in the single-wide plant . Accordingly, on these facts, we cannot find that the Respondent un- lawfully discriminated against Whitney by recalling her to work instead of permitting her to remain on layoff, and we dismiss the complaint insofar as it alleges a violation in this respect. 3. The judge found that the Respondent violated Section 8(a)(5) and ( 1) of the Act by refusing to accept two grievances of John Speelman . We dis- agree.$ Employee John Speelman was injured at work on July 22, and left work around noon. Speelman later contacted Union President Louise Cram, con- tending that the Respondent failed to pay him for the full day in accordance with the terms of the contract. Cram took a written grievance to Super- visor Gene Asher, but Asher did not accept it, stat- ing that he would look into the matter and Cram did not need to file a grievance. Asher later told Cram that Speelman had been overpaid for the day in question, and the grievance was dropped. In September, Speelman was discharged for missing 2 days work without "calling in." Speel- man claimed that he provided a doctor's slip that the Respondent refused to honor. The judge found that on September 14, when Cram tried to present ' Though not dispositive of the issue, it is noteworthy that Whitney's earnings in 1987 at the double-wide plant actually exceeded what she had earned in 1986 at the single-wide plant. 8 We agree with the judge, however, that the Respondent violated Sec. 8(a)(5) and ( 1) of the Act by failing to furnish certain information the Union requested in connection with the Speelman grievances. MOBILE HOME ESTATES a grievance over the discharge, the Respondent re- fused to accept it The Respondent later accepted the written grievance on October 1, however, and a grievance hearing was held on November 11 The record indicates that out of some 45 griev ances filed, the Respondent was found to have re fused to accept only the Speelman grievances Thus, this is not a case involving a repudiation of a contractual grievance procedure Furthermore, the evidence is insufficient to support a finding that the Respondent unequivocally refused to accept the Speelman grievances The Respondent did investi gate the circumstances surrounding the first griev ance, and the second one was accepted approxi- mately 2 weeks after it was first presented Under these circumstances, we conclude that, while the initial failure to accept the Speelman grievances may constitute a breach of contract, it is not in itself an unfair labor practice See Mid-American Milling Co, 282 NLRB 926 (1987) Accordingly, we reverse the judge's finding that the Respondent violated the Act by failing and refusing to accept the Speelman grievances 9 AMENDED REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act The remedy in this case should include a broad rather than a narrow cease-and desist order because of the Respondent's history of unfair labor practices See footnote 3, supra We shall order the Respondent to offer employ ees Alan Lupien and Jerry Talbert reinstatement and to make them whole for any loss of earnings or other benefits Backpay shall be computed in ac- cordance with F W Woolworth Co, 90 NLRB 289 (1950) with interest computed as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987) 10 We shall order the Respondent to remove from its files references to the unlawful disciplining of Alan Lupien, Jerry Talbert, Glen Goulding, and Faron Hubert AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusions of Law 3 and 4 9 Chairman Stephens would find the Respondents treatment of the Speelman grievances to be a violation of Sec 8(a)(5) when viewed in the context of its unlawful refusal to give relevant information pertaining to Speelman s discharge grievance 10 Interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 693 "3 Respondent violated Section 8(a)(3) and (1) of the Act when it discharged employees Alan C Lupien and Jerry Talbert, and gave written repri- mands to Glen Goulding and Faron Hubert be cause of their activity on behalf of the Union 4 Respondent violated Section 8(a)(5) and (1) of the Act when it failed and refused to furnish in- formation necessary for and relevant to the Union's grievance handling responsibilities involving the John Speelman grievances " ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set out in full below and orders that the Respondent, Mobile Home Estates, Inc, Bryan, Ohio, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging or otherwise disciplining its em- ployees because they engage in activity on behalf of the Union (b) Failing or refusing to furnish information to the Union that is necessary for and relevant to the Union's performance of its grievance handling re sponsibilities (c) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Offer Alan C Lupien and Jerry Talbert im mediate and full reinstatement to their former posi tions or, if those positions no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority and other rights and privileges (b) Make Alan C Lupien and Jerry Talbert whole for any loss of pay and other benefits suf- fered by them commencing on February 27, 1984, in Lupien's case and July 29, 1986, in Talbert s case in the manner set forth in the amended remedy sec- tion of this Decision and Order (c) Remove from its files any reference to the discharges of Alan C Lupien and Jerry Talbert and the disciplining of Glen Goulding and Faron Hubert and notify them in writing that this has been done and that evidence of their unlawful dis cipline will not be used as a basis for future person- nel action against them (d) On request, furnish the Union information that is relevant and necessary to its role as exclu sine bargaining representative of the unit employ- ees (e) Preserve and, on request, make available to the Board or its agents for examination and copy ing, all payroll records, social security payment 694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (f) Post at its facility in Bryan, Ohio, copies of the attached notice marked "Appendix"" i Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply I I If 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 Nation al 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 WE WILL offer Alan C Lupien and Jerry Tal bert immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges WE WILL remove from our files any reference to the discharges of Alan C Lupien and Jerry Talbert and remove from our files all references to the written discipline of Glen Goulding and Faron Hubert, notifying them, in writing, that this has been done and that evidence of their unlawful dis- cipline will not be used as a basis for future person- nel action against them WE WILL make Alan C Lupien and Jerry Tal bert whole for any loss of pay and benefits result ing from their discharges, less any net interim earn- ings, plus interest WE WILL, on request, furnish the Union informa tion that is relevant and necessary to its role as ex clusive bargaining representative of the unit em ployees MOBILE HOME ESTATES, INC APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT discharge or otherwise discipline our employees because they engaged in activity on behalf of the Union WE WILL NOT fail or refuse to furnish to the Union information necessary for and relevant to the Union's performance of grievance handling re- sponsibilities WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by the Act Frank D Motil Esq for the General Counsel Timothy C McCarthy Esq of Toledo Ohio for the Re spondent Fritz Neil Esq, of Toledo Ohio for the Charging Party DECISION STATEMENT OF THE CASE MARTIN J LINSKY, Administrative Law Judge On 27 June and 7 and 27 August 1984 the charge, first amended charge and second amended charge respectively in Case 8-CA-17640 were filed On 17 July 1985 the charge in Case 8-CA-18405 was filed On 26 November and 22 December 1986 the charge and first amended charge in Case 8-CA-19660 were filed On 26 November 1986 the charge in Case 8-CA-19662 was filed On 26 November 1986 the charge in Case 8-CA-19663 was filed On 14 January 1987 the charge in Case 8-CA- 19778 was filed On 14 January 1987 the charge in Case 8-CA-19779 was filed In each case the Charging Party was the International Union Allied Industrial Workers of America and its Local 712 (Charging Party or Union) The charged party in each case was Mobile Home Estates Inc (Respond ent) On 24 September 1987 the National Labor Relations Board by the Regional Director for Region 8 issued a second amended consolidated complaint which as later amended alleges that Respondent violated Section 8(a)(1) (3) and (5) of the National Labor Relations Act (the Act) when it unilaterally implemented changes in the terms and conditions of employment of its employees without giving notice and opportunity to bargain to the Union when it bargained in bad faith with the Union by MOBILE HOME ESTATES 695 demanding that the Union agree to Respondents final, noneconomic proposal before Respondent would bargain about economic matters when it refused to accept griev ances when it refused to furnish to the Union informa tion the Union requested, which was relevant to and nec essary for the Union to properly process grievances when it discharged employees Alan C Lupien Jerry Talbert and John Speelman, when it gave disciplinary warnings to employees Glen Goulding and Faron Hubert and a third unidentified employee, and when it demoted and later transferred employee Martha Whitney Re spondent denies that it violated the Act in any way A hearing was held in Bryan, Ohio, on 15, 16, and 17 December 1987 and 2 and 3 February 1988 It is my con elusion that Respondent violated the Act when it refused to accept certain grievances, when it failed to furnish to the Union information necessary for and relevant to the Union s grievance handling responsibilities, when it dis charged employees Alan C Lupien and Jerry Talbert when it gave disciplinary warnings to Glen Goulding and Faron Hubert and when it demoted and later trans ferred Martha Whitney On the entire record in this case, including posthearing briefs submitted by the General Counsel, Respondent, and Charging Party, and on my observation of the de meanor of the witnesses I make the following FINDINGS OF FACT ployees The parties entered into a collective bargaining agreement that covered the period 14 November 1973 to 11 November 1976 Thereafter there was a hiatus in the relationship be tween Respondent and the Union Respondent withdrew recognition Charges were filed by the Union with the Board A complaint issued and on 4 February 1982 the Board issued a decision following a hearing before an ad ministrative law judge, in which it found inter alia, that Respondent unlawfully withdrew recognition The Board ordered, inter alia, that Respondent recognize the Union and bargain with it Mobile Home Estates, 259 NLRB 1384 (1982) The Board s decision was enforced by the U S Court of Appeals for the Sixth Circuit on 24 May 1983 NLRB v Mobile Homes Estates 707 F 2d 264 Respondent failed to comply with the Board s order, as enforced by the court of appeals and contempt proceed ings were initiated On 22 September 1986 a consent agreement was approved by the court of appeals The unfair labor practices alleged in the second amended consolidated complaint are alleged to have oc curred between 1984 and 1987 For the most part, I will address the alleged unfair labor practices in chronologi cal order It is important to note that Respondent and the Union did enter into a collective bargaining agreement, which they executed and is effective by its terms from 1 May 1986 to 15 November 1988 I JURISDICTION Respondent Mobile Home Estates Inc is, and has been at all times material, a corporation organized under and existing by virtue of the laws of the State of Ohio with an office and place of business in Bryan Ohio where it is engaged in the manufacture and retail sale of mobile homes Annually in the course of conduct of its business, Respondent purchases and receives at its Bryan Ohio, facility materials and supplies valued in excess of $50 000 directly from points located outside the State of Ohio Respondent admits and I find that it is now and has been at all times material an employer engaged in com merce within the meaning of Section 2(2) (6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background and Overview Respondent manufactures and sells mobile homes It has been in business for over 20 years Most of the homes it manufactures are single wide homes but it also manufactures double wide homes During its busiest time of the year-the summer-it employs about 200 employ ees During its slowest time of the year-the winter-it often closes down In 1972 Respondent recognized the Union as the rep resentative for collective bargaining purposes of its em B Discharge of Alan C Lupien on 1 March 1984 In February 1984 Respondent posted on its bulletin board an NLRB Notice to Employees which inter alia, provided that Respondent would recognize the Union and bargain with it The notice to employees was posted pursuant to the orders of the Board and the cir cuit court in the prior case against Respondent referred to above Alan Lupien began his employment with Respondent on 25 April 1983 He was not the greatest employee ever employed by a mobile home manufacturer His attend ance was not perfect He worked for Respondent for 10 months and while his attendance was not perfect there was no trend that it was getting worse His immediate supervisors Boyd Hicks and Bob Swary often com plained to him about his work performance but the su pervisor above them, Denny Sanders routinely told Lupien he was doing a good job Lupien received sever a] pay raises during his 10 month employment When Lupien saw the Notice to Employees form on the bulletin board it was his first knowledge that there was a union at Respondents facility The Union had been dormant for several years and during all of Lu pien s employment up to February 1984 Through his father and another person Lupien con tatted Roy Campbell the Union s International represent ative for that geographical area Lupien and Rick Griffin, a friend and coworker de cided that they would run for office Lupien wore a T shirt one day at work that had Al for President on one side and the union name and logo on the other side Al though February can be quite cold in northwest Ohio 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and the area where Lupien worked was usually only about 10 degrees warmer than the outside air, we all know that sometimes the weather is hotter or colder than normal . Suffice it to say, I credit Lupien's testimony that he wore a T-shirt that said "Al for President" with the union logo on the back without a jacket covering the T-shirt. It was visible to one and all who saw him. Su- pervisors were in a position to see him, although there is no direct evidence that any did. Lupien attended the first union meeting in February 1984 and, thereafter, passed out 10 authorization cards at work. Indeed, he actually got about 10 cards signed at work. Lupien posted on the employee bulletin board a notice for a union open meeting set for Saturday night, 25 Feb- ruary 1984. At that meeting Lupien was in a position to be observed by persons entering the meeting place. I credit Lupien's testimony that Supervisors Boyd Hicks and Bob Swary came to the meeting, but were turned away at the front door by International Representative Roy Campbell because they were supervisors. Both su- pervisors were in a position to observe Lupien. Swary never testified. Hicks denied he ever went to the meet- ing. I credit Lupien over Hicks. On Thursday, 23 February 1984, Lupien arrived at work on time but left ill. He did not come in on Friday, 24 February 1984. The union open meeting was held on Saturday, 25 February 1984. When Lupien returned to work on Monday, 27 February 1984, he was told that he was being laid off because 9f poor work performance. When he returned to work on 2. March 1984 to pick up his paycheck he was told that lie was being discharged because of poor performance. Applying the Board's Wright Line analysis,' I believe that the General Counsel made out a prima facie case with respect to the discharge of Lupien, i.e., within a couple of weeks of his discharge he was instrumental in getting the Union active again, he campaigned for union office, he solicited 10 others to sign union authorization cards, he attended the union meeting on 25 February, and he was laid off the very next workday. A week later he was fired. There is no way Respondent would not have been aware of his union activity because he did it openly and under circumstances when it is inconceivable he was not observed by management officials. Respondent presented evidence that Lupien had a less than perfect record. It showed he left work on 23 Febru- ary and was not at work on 24 February. Lupien's time- card reflects that he left work on 23 February because he was ill. At the hearing before me no one asked Lupien about the circumstances surrounding his leaving work on 23 February or why he was not at work on 24 February and whether he called in on 24 February to say he would not be in to work. Not a shred of evidence as to this came out until Respondent put on its case, which was after Lupien had testified and left the area of the hearing room. Respondent now claims it discharged Lupien because of his failure to call in on 24 February ' Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The Board's analysis met with explicit Supreme Court approval in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). 1984, his record of absenteeism, and poor work perform- ance. In my opinion Respondent has not shown by a prepon- derance of the evidence that it would have fired Lupien for his absenteeism and work performance even if he was not an active union supporter. I base this on the follow- ing: Lupien, whom I credit, was not told on 27 February that he was being fired or laid off because he missed work and did not call in but rather he was told he was being laid off because of poor work performance and 1 week later when he came in to get his paycheck he was told he was fired not for missing work or failing to call in on 24 February but because of poor work perform- ance. These facts coupled with the timing of Lupien's union activity in relation to the discharge demonstrate that he was fired because of his union activity and not for any other reason. This is a violation of Section 8(a)(1) and (3) of the Act. C. Unilateral Changes By Respondent in Terms and Conditions of Employment in April 1984 Respondent had an employee handbook dated April 1979 in effect until a new handbook, dated April 1984, was promulgated. This new employee handbook contains changes in certain terms and conditions of employment from the April 1979 handbook. The changes were as follows: (1) page 3: TIME CARDS . . . No one is allowed to go to the parking lot at break or at lunch without the permission of the plant coordinator . . . . (2) page 9: MEDICAL AND HEALTH SERV- ICE . . . If you should be injured at work, no matter how slight the injury, report it immediately to the Production office to get first aid and fill out an acci- dent report. If you do not fill out an accident report, when the Company receives a medical bill, the Company will automatically reject it . . . . (3) page 12: YOUR PERSONAL BUSINESS . . . Soliciting contributions, selling of tickets, distributing publications or merchandise, etc., is pro- hibited on Company property, except with specific permission from your Production office . . . . Respondent admits that it did not give notice and op- portunity to bargain to the Union about these changes, but argues that the changes detailed above were unilater- ally made by it immediately subsequent to the 1979 hand- book and long before the publication of the 1984 hand- book, which merely incorporated changes into the hand- book that had previously been made. All evidence is that this is accurate, therefore, the publication of the April 1984 handbook merely memorialized in the handbook changes unilaterally made prior to that time. Because it has been held by the Board and the court of appeals that Respondent unlawfully withdrew recognition from the Union and had an obligation to bargain with the Union, Respondent violated the Act when it unilaterally made the changes noted. However, as no charge was filed within the 10(b) period, no violation of the Act will be MOBILE HOME ESTATES predicated on these unilateral changes When the parties negotiate regarding a collective bargaining agreement to replace the one due to expire in November 1988 the sub ject matter of these changes should be a matter of good faith negotiating between the parties D Respondents Bad Faith Bargaining on 10 April 1985 In April 1984 contract negotiations betweeen Re spondent and the Union commenced It is alleged that Respondent violated the Act when it demanded at a ne gotiating session on 10 April 1985 (the seventh or eighth session since negotiations began) that the Union had to accept all Respondents noneconomic proposals before Respondent would negotiate concerning economic pro posals As a result of this position, the negotiations ended and it was not until months later that the parties got back together Suffice it to say it was Respondent who brought in the Federal Mediation and Conciliation Service subsequent to the 10 April 1985 meeting that caused bargaining to begin a new The parties did reach agreement on a con tract, which they executed and which as noted above, is effective by its terms from 1 May 1986 to 15 November 1988 At the negotiating session on 10 April 1985 Respond ent, through its attorney Timothy C McCarthy did claim that impasse was reached on noneconomic matters and that further negotiations on economic matters would be a waste of time but only after Respondent at this very same negotiating session had made several concessions on noneconomic matters and was taking the position that it could make no more concessions in the area of non economic provisions At the 10 April 1985 session Respondent modified its position on three noneconomic matters i e it agreed to 2 hour callback pay instead of only 1 hour that employ ees would not lose the right to participate in the bonus pool in the event of an on the job injury, and that an em ployee would retain seniority while on layoff for the lesser of the employees length of service or 2 years The Union rejected Respondents modified noneco nomic proposals Respondent did break off the negotiations that night claiming impasse but it was Respondent who later con tacted the Federal Mediation and Conciliation Service Negotiations resumed on 25 July 1985 and eventually the parties reached agreement on a contract which is due to expire in November 1988 In view of all the circumstances, I do not believe that the General Counsel has proven by a preponderance of the evidence that Respondent violated the Act by its ac tions on the night of 10 April 1985 Granted Respondent did not want to continue negotiations that night and that no new date was set for the next negotiating session but the parties had been at it for several hours that night Respondent later contacted FMCS, and the parties did agree to a contract 2 2 The Board may reach a different conclusion than I do and to assist the Board I would note that Roy Campbell impressed me as a credible witness 697 E Discharge of Jerry Talbert on 29 July 1986 In the spring of 1986 Jerry Talbert applied for a posi tion at Respondents facility He filled out a job applica tion, which asked if he had been convicted of a felony within the prior 7 years Talbert wrote in no Thereafter, in June Talbert was called in for an inter view Personnel Director Jim Joseph as part of the interview process, asked Talbert if he had ever been ar rested Talbert admitted to Joseph that he had been ar rested convicted of a felony and had been incarcerated for 4 months on a drug offense involving cocaine Joseph wrote down on the interview form that Talbert had been convicted of a drug offense and commended Talbert for his honesty Joseph also noted on the interview form the names of several people Talbert knew who worked for Respondent, to include a supervisor and people who quite arguably would know about Talbert s involvement with the authorities and people whom Respondent before putting Talbert to work could ask about Talbert s drug offense Talbert complied with Joseph s request at the interview for a waiver to permit Respondent to secure a copy of Talbert s arrest record from the author[ ties Talbert went to work on or about 11 June 1986 He was considered a good worker When the union presi dent decided to leave Respondents employ and return to his old job, Talbert decided that he would run for presi dent of the local On Monday 28 July 1986, the Union held an election meeting and Jerry Talbert was elected president An other union officer Louise Mom Cram,3 who had just been elected vice president and had formerly been secre tary treasurer gave a list of the newly elected union offs cers to Supervisor Gene Asher early on Tuesday 29 July 1986 Asher promptly brought the election results to the attention of James Newman the founder and presi dent of Respondent Newman immediately called International Represents tive John McClaren who had succeeded Roy Campbell on Campbells retirement and told McClaren that , ie Union had elected a probationary employee as president McClaren said that might be a problem Newman then said that it did not really make any difference since Tal bert was being fired at the end of the week because he was a convicted drug dealer Later that very day a Tuesday Talbert was fired At the hearing Newman claims that when he found out about Talbert s drug conviction he told Gene Asher to fire Talbert Newman acknowledges that he knew of Talbert s conviction for some time and knew that Asher had not carried out his orders to fire Talbert until after Asher and Newman were told of Talbert s election to the post of local president Asher admitted that he knew that Talbert had a drug arrest but nevertheless hired him thinking he claims that the offense was a minor possession offense He fur S Louise Cram is considerably younger in age and appearance than one would think upon learning of her nickname which is Mom Most of Respondents employees are in their early twenties and many just out of high school 698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ther conceded that he knew all the details of Talbert's conviction for "at least two weeks" before Talbert was fired. Talbert as noted above was a competent employee. In addition, a few days before his election he had been given paperwork to fill out because he was going from probationary to permanent employee. He was given these papers between the time Respondent in the person of Gene Asher knew the details of his involvement with the law and the time he was elected president. Talbert is the only employee ever fired for this or a similar reason, i.e., criminal record that predated their employment. There was no evidence that Talbert used drugs while employed by Respondent. Talbert's conviction was in late 1980 and he was out of prison by mid-1982, a full 4 years before his discharge. It is clear to me that the General Counsel has proven that Talbert was discharged on the very day Respondent learned of his election to president because of his union activity in violation of Section 8(a)(1) and (3) of the Act and that Talbert was not fired because of his drug con- viction. Respondent knew before it hired Talbert that he had a criminal conviction for a drug offense and knew for at least 2 weeks prior to his discharge of the particu- lars of that conviction and yet took no action to termi- nate Talbert's employment until the very day it learns of Talbert's election to the presidency. See Wright Line, supra. F. The Discharge of John Speelman on 10 September 1986 John Speelman worked for Respondent for approxi- mately 6 months. He was a union member, but not un- usually active nor was he a union officer. Speelman was lawfully fired on 10 September 1986 for a violation of the rule in the collective-bargaining agree- ment between Respondent and the Union, which pro- vides that an employee shall be terminated in the event of an "absence of two (2) consecutive working days without notifying the Company and/or without a justifi- able reason." The General Counsel claims that the real reason for Speelman's discharge was because he filed and pursued a grievance . If this was so his discharge would be illegal since it is unlawful to discharge an employee for filing or pursuing a grievance. Crown Zellerbach Corp., 284 NLRB 111 (1987). Although Respondent's failure to turn over relevant and necessary requested information to the Union in con- nection with Speelman's grievance was a violation of Section 8(a)(1) and (5) of the Act (see sec. III,J, below), it is my conclusion that Speelman was discharged for a lawful reason and not for an unlawful reason and , there- fore, I find no violation of the Act. Speelman was absent from work on 8 and 9 September 1986. He claims he called in sick to the office before 8:30 a.m. (as required by the work rule) on either both days or one of the days depending on whether one credits his testimony at the hearing before me (both days) or his tes- timony before the Ohio Unemployment Compensation Board (one of the days). I chose to credit neither ver- sion . I credit instead the testimony of Mary Fitzcharles, documentary evidence of who was in the office those mornings, and other of Respondent's witnesses, that Speelman did not call in either day. When he did show up on 10 September he was fired. He claimed that he was sick and said he could get a doctor's slip. He re- turned with a doctor's slip reflecting that he was sick on 8 and 9 September as well as on 10 September the day he reported for work. Respondent legitimately ques- tioned the accuracy of the doctor's slip. Speelman's grievance was 1 of 45 filed by the Union and was not of monumental significance to Respondent. A grievance was later filed over Speelman's discharge and Respondent violated the Act again in its failure to turn over necessary and relevant information requested by the Union and needed to carry out its obligations under the collective-bargaining agreement. (See sec. III,J, below.) Although Speelman had been in Respondent's employ for only a little over 6 months when discharged he had, in that short period of time, been previously disciplined for negligently breaking 42 windows and bending a hitch on a lumber wagon, and he had been previously warned and subsequently given a 2-day suspension from work for excessive absenteeism. Documentary evidence at the hearing reflects that Re- spondent routinely discharged employees for absenteeism (144 discharged for this between 1984 and the end of 1987) and for not calling in or having justifiable reason for missing work (127 discharged for this between 1984 and late 1987). While I believe that the General Counsel made out a prima facie case I conclude , using again the Wright Line, analysis, that Respondent would have discharged Speel- man for the reason it claims it did even absent any union activity or protected concerted activity on his part, of which, I might add, there was very little. G. Written Warning to Glen Goulding on 19 September 1986 Glen Goulding still works for Respondent . He began his employment in March 1985. He has two sons. One of his sons had a kidney problem. There were a number of occasions when Goulding sought and was granted per- mission to leave Respondent 's facility, go to his son's rescue with dry clothing, and return to work. At the same 28 July 1986 election meeting when Jerry Talbert was elected president and Louise Cram was elected vice president , Glenn Goulding was elected sec- retary-treasurer. On 16 September 1986 Goulding requested permission to leave Respondent's facility during the lunch .break to attend to a matter at his bank. He was given permission to do so. He left the facility at lunch, attended to his matter at the bank, returned to work after the lunch break, and got paid for the whole day. On 17 September 1986 Goulding participated in his very first grievance meeting and was the union spoke- man on one grievance at that meeting. On 18 September 1986 Goulding had a problem. His other son-not the youngster who had the kidney prob- lem-had ripped his pants at school . Goulding sought MOBILE HOME ESTATES permission from Gene Asher, who had given him per mission to go to the bank and return 2 days before to leave Respondents facility during the lunch break to take his son a pair of pants Nathan Kimpel was standing nearby Nathan Kimpel, Respondents vice president and President James Newman s son in law, whispered some thing to Asher and Asher told Goulding that if he left to go to the aid of his young son he could not come back to work that aftenoon, i e , he would lose 4 hours pay and he would lose his bonus for the week i e, approxi mately $150 To Goulding s credit he went to his son s aid On 19 September 1986-the very next day-Goulding finished work, left Respondents facility, got some money from his bank and returned to Respondent's facility to pay Louise Cram some money he owed her He entered Crams work area to do so Foreman Gary Keller saw Goulding and promptly issued him a written warning for being in the work area of Respondents facility while off duty In the warning it is alleged that Goulding had a nonemployee with him when he entered Cram s work area Goulding credibly denied that he did Keller, who was no longer employed by Respondent, did not testify While it was not charged in the complaint and there fore will not be the basis for a finding of a separate unfair labor practice Respondents treatment of Goulding when he wanted to go to his sons assistance over his lunch break shows antiunion animus and tends to cor roborate the fact that Goulding received written disci pline for being in Cram's work area while off duty not because he violated this rule, which was often violated and no one punished, but because all of a sudden Gould mg was becoming an active union official Accordingly, I conclude that the written reprimand of Goulding on 19 September 1986 was a violation of Section 8(a)(1) and (3) of the Act Sometime subsequent to these events and prior to the hearing in this case Goulding at his wife s urging stepped down as secretary treasurer of the Union H Written Reprimand of Faron Hubert on 19 September 1986 On 19 September 1986 employee Faron Hubert, a member of the Union, who is still in Respondent s employ was leaving work with an employee identified in the record only as Lee No one at the hearing could re member Lee s last name Hubert and Lee had previously discussed Lee s joining the Union Hubert purposely left work through the work area of Louise Cram Cram was at this time, president of the local having succeeded Jerry Talbert who had been fired on 29 July 1986 (see sec 3,E, above) Hubert yelled a question to Cram as he and Lee walked through her work area They were clocked out but Cram was still on the clock and working Hubert yelled out asking when could Lee join the Union Foreman Gary Keller heard this and told both men that he was tired of people talking union on the job and ordered that both Hubert and Lee be given written repri mands The evidence was overwhelming that employees talked about sports and politics when working To single 699 out one subject for discussion-the Union-and punish anyone who talks Union but permit conversations about other matters is unlawful Hubert and Lee did not inter fere in any way with production It was hardly a conver sation because Cram in response to Hubert s question had yelled back not now I'm working or words to that effect Accordingly, I conclude that Respondent violated Section 8(a)(1) and (3) of the Act when it issued a writ ten reprimand to Faron Hubert 4 I Demotion of Martha Whitney on 26 October 1986 and Transfer of Martha Whitney in January 1987 Martha Whitney is still employed by Respondent She began working for Respondent on 25 July 1985 She is considered a good employee At a union election in September 1986 she was elected vice president succeeding Louise Cram who had been promoted to the presidency of the local Whitney had served as a steward since June 1986 On 24 October 1986 Martha Whitney signed as a union official the first grievance she had ever signed and turned it into management Two days later Whitney was demoted from reworker to sweeper The clear weight of the evi dence reflects that, although there is no difference in the pay between reworker and sweeper, the work of sweep er which means you push a huge sweeper and clean the work area, is less prestigious than that of reworker, wherein you are the last person to work on a mobile home before it is inspected and your job is to patch up and fix things that are wrong or defective so that the mobile home passes inspection Whitney loved being a reworker and wanted to continue in that capacity A person had to be creative and clever to be a good reworker Whitney enjoyed an excellent reputation as a reworker Respondent claims that in order to enhance productiv ity it needed only one reworker and not two and trans ferred Whitney to the sweeper position and kept the other person-Louis Alvarez-as reworker even though it was Whitney who had trained Alvarez as a reworker because Alvarez could also do some electrical work that Whitney could not do Whitney could of course be trained to do that electrical work just as she had trained Alvarez to do the job of reworker In December 1986 Whitney was laid off In January 1987 Whitney was recalled from layoff and assigned to work in the double wide plant, which had just started up The problem with working in the double wide plant was that there would be little or no bonuses whereas, in the single wide plant employees could earn bonuses, which in the busy summer months could amount to $150 per week Whitney did not want to work in the double wide plant 4 Since Lee was not a witness and not further identified in the record and since the written reprimand given him was not introduced into evi dence I am not going to make a specific finding regarding the lawfulness or unlawfulness of a reprimand given an employee whose last name we do not even know 700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent claims that Whitney was offered a transfer to the double wide plant by Supervisors Ashe and Sand ers that she was told it was up to her whether she trans ferred, that she was informed that the hourly rate of pay would be the same that there was less chance she would be laid off in the double wide plant but that bonuses would be low or nonexistent in the double wide plant and that Whitney agreed to the transfer Whitney credi bly testified that she was never offered a choice to trans fer or not It is my conclusion that Whitney was demoted and later transferred in violation of the Act The sweeper job was not as good a job as reworker and the demotion oc curred only 2 days after she presented to management the very first grievance she had ever signed Her transfer to the double wide plant was made without her request or concurrence and the fact that Respondent lies and claims she accepted the transfer and could have turned it down persuades me that she was transferred because of her union activities There is no evidence that Whitney lost any money as a result of her demotion from reworker to sweeper which lasted from 26 October 1986 until her layoff in Decem ber While Whitney lost bonus money as a result of her involuntary transfer to the double wide plant, she never theless was able to work 9 weeks more in 1987 than in 1986 and actually made more money in 1987 than in 1986, but what monetary relief, if any, Whitney will get as a remedy for Respondents unlawful action in transfer ring her will be a matter for the compliance stage of this case assuming these findings are either not challenged or affirmed Speelman s timecard for the day in question was not honored In September 1986 Speelman was fired for missing 2 days work without calling in Speelman claimed that he presented a doctor s slip or certificate which Respond ent refused to honor On 14 September 1986 the Union again by Louise Cram tried to present a grievance con cerning Speelman s discharge Asher refused to accept it Later Cram asked to see Speelman s timecard for the days he missed and the doctor s statement, which Speel man claimed he gave to Respondent Respondent never did show the Union the doctor s slip although it had it in its files With respect to Speelman s attendance card Respondent, at a grievance hearing on 11 November 1986 merely permitted the Union to briefly look at the attendance card in question but did not give the Union a copy of it or permit the Union to make a copy When presented with a written grievance Respondent should accept it and when asked for clearly relevant and necessary information to assist the Union in evaluating a grievance Respondent should promptly furnish that in formation to the Union It was necessary for and relevant to the Union s griev ance handling responsibilities for it to see Speelman doc tor s slip and his timecard In addition, Respondent should accept written grievances presented to it Re spondent violated Section 8(a)(1) and (5) of the Act by its actions in connection with the Speelman grievances Evidence as to Respondents alleged failure to accept other grievances was insufficient to warrant specific find ings of unlawful action by Respondent REMEDY J Respondents Refusal to Bargain by Failing to Furnish Information to the Union An employer has a duty to furnish requested records and information to a union provided the requested records or information is necessary for and relevant to a union's performance of its function as the exclusive col lective bargaining representative of an employer's em ployees A failure to do so is a violation of the employ er s obligation to bargain in good faith and violative of Section 8(a)(1) and (5) of the Act An employer also vio lates Section 8(a)(1) and (5) if it refuses to accept a griev ance from a union Employee John Speelman5 was injured on the job in July 1986 Respondents work rules provided that if an employee is injured and goes to the hospital and as a result of the injury is off from work he will get paid from the time he goes off the clock because of the injury until his normal quitting time on the day of the injury Speelman claimed he was owed about 4 hours pay under this policy since he had been injured around 12 noon He brought this matter to the attention of Presi dent Louise Cram Cram tried to present this grievance in writing to Supervisor Gene Asher on several occa sions in August and September 1986 but Asher refused to accept it In addition, her repeated requests to see s See sec III F above which concerns the discharge of employee John Speelman The remedy in this case should include a broad rather than a narrow cease and desist order based on Respond ent s history of unfair labor practices Respondent should be ordered to reinstate and make whole employees Allan Lupien and Jerry Talbert be ordered to transfer Martha Whitney back to the single wide plant if she wishes to be so transferred and be ordered to remove from its file ref erences to the unlawful disciplining of Lupien Talbert Goulding and Hubert Because I spent 5 days in hearing in this case, I formed some strong impressions about Respondent James Newman Respondents founder and president impressed me as a very intelligent and shrewd businessman who if he accepts in good faith the right guaranteed by Federal law, of his employees to form, join and assist the Union and commits himself and the company he founded to bargain in good faith with that Union will enjoy a long period of prosperity and one free of litigation before the Board or circuit courts CONCLUSIONS OF LAW I The Respondent Mobile Home Estates Inc is an employer engaged in commerce and in operations affect mg commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 International Union Allied Industrial Workers of America AFL-CIO and its Local 712 is a labor organi zation within the meaning of Section 2(5) of the Act MOBILE HOME ESTATES 701 3 Respondent violated Section 8(a)(1) and (3) of the Act when it discharged employees Alan C Lupien and Jerry Talbert, demoted and transferred employee Martha Whitney and gave written reprimands to Glenn Gould ing and Faron Hubert because of their protected concert ed activity on behalf of the Union 4 Respondent violated Section 8(a)(1) and (5) of the Act when it failed and refused to accept from the Union the grievances on behalf of employee John Speelman and when it failed and refused to furnish information neces sary for and relevant to the Union s grievance handling responsibilities involving the John Speelman grievances 5 The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 6 Respondent has not otherwise violated the Act [Recommended Order omitted from publication ]