Chickasha Mobile Homes, Inc.

National Labor Relations Board - Board Decisions

Oct 19, 1971

193 N.L.R.B. 807 (N.L.R.B. 1971)

CHICKASHA MOBILE HOMES, INC. 807
Chickasha Mobile Homes, Inc. and United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO . Cases 16-CA-4254 and 16-CA-4310
October 19, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On August 3, 1971, Trial Examiner Herzel H. E.
Plaine issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision with a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed.' The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Chickasha Mobile Homes, Inc., Chicka-
sha, Oklahoma, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
I We find no merit in Respondent's contention that the Trial Examiner
was biased and prejudiced
TRIAL EXAMINER'S DECISION
HERZEL H. E. PLAINE, Trial Examiner: The Employer
(Respondent) is charged with having discharged two of its
employees in early 1971 because of their sympathy for or
assistance to the Charging Party (Union), and with having
engaged in coercive interrogation, and creating the
impression of surveillance, of employees concerning their
union activities or interest, in violation of Section 8(a)(3)
and (1) of the National Labor Relations Act (the Act).
The matter was tried on a consolidated complaint, issued
April 6, 1971, based on a charge filed February 3, 1971, in
Case 16-CA-4254, and on a charge filed March 29, 1971,
amended April 6,197 1, in Case 16-CA-4310.
Respondent admits the discharges but contends that both
were for causes unrelated to union activity or sympathy,
and denies engaging in any other unlawful antiunion
activity. In this connection, Respondent also denies the
supervisory or agency status of several of the persons
charged with acting on its behalf.
The cases were tried in Chickasha, Oklahoma, April
20-21, 1971. Counsel for the General Counsel and for the
Respondent have filed briefs.'
Upon the entire record of the case , including my
observation of the witnesses, and after due consideration of
the briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Delaware corporation, with facilities in
several States, engaged in the manufacture of mobile homes
at its plant in Chickasha, Oklahoma, and their distribution
from said plant. In the 12 months prior to issuance of the
consolidated complaint, Respondent received at its Okla-
homa plant goods valued in excess of $50,000 directly from
points outside Oklahoma, and shipped from its Oklahoma
plant products valued in excess of $50,000 directly to points
outside Oklahoma.
Respondent is, as it concedes, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
The Union is, as the parties admit, a labor organization
within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Business Operation
In its business of manufacturing and selling mobile
homes (also referred to as coaches), Respondent operates
plants at Chickasha, Oklahoma; Watertown, South Dako-
ta; and Vidalia, Georgia, and an accounting office at
Kansas City, Missouri.
At the Chickasha plant, where the events of these cases
transpired in the period of January-March 1971, there were
about 160 employees engaged in production and in the
receiving and handling of production materials . The bulk,
or about 150 employees, were on the production assembly
line, which was divided into 10 groups or departments, such
as floor installation, sidewall installation, and so on.2 In
charge of production at the Chickasha plant was Prod-
I After the time for filing briefs had expired, counsel for Respondent
filed a supplemental brief, without leave , purporting to provide some
information and argument derived from a representation proceeding,
involving the Respondent and the Union , subsequent to the trial of this
case . The representative of the Union filed an answering letter
Notwithstanding the irregularity of this procedure, I have considered both
documents
2 On March 22, 1971, there was a layoff of 16 production employees
and a discharge of 9, for a total reduction in force of 25 employees By the
time of the trial , I month later , the production force was back to about 140
employees , according to Production Manager Ed Green
193 NLRB No. 124
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
uction Manager Ed Green, assisted by two foremen,
Hogstead and Scott, and a leadman (total 10) immediately
in charge of each of the 10 production line departments.
The plant was producing five coaches per day but cut back
to four per day with the reduction in force of March 22,
1971 (fn. 2, supra), according to the coordinator to the
president , Keith Finley.
In the receiving department, concerned with the receiving
and handling of material, according to Coordinator Finley,
there were about six full-time employees, plus temporary or
part-time help engaged from time to time. Plant Manager
Denzil Hankins was in charge of the receiving department
assisted by Supervisor of Receiving and Material Handling
Lester Rogers and by receiving clerk Billy Moore.
The plant manager (Hankins), according to Coordinator
Finley, is in charge of the purchase of materials, supervises
the office clericals and the receiving department, and, while
not directly responsible for plant production, is sufficiently
in charge to settle disputes between the production and
receiving departments.
In overall charge of company operations at all three
plants, but physically located at the Chickasha plant, is
General Manager Ronnie Racznski. He is assisted by
General Production Manager Frank Moore (to whom the
three plant production managers respond) and by Director
of Purchasing Ed Fry (to whom the plant managers
respond). Also located at Chickasha, but part of manage-
ment for all three plants, is Keith Finley, the coordinator to
the president of the Company and an officer of the
Company.
The supervisory status of each of the several managers,
the coordinator, and the two production foremen is
conceded, but Respondent disputes the supervisory status
of Supervisor of Receiving and Material Handling Lester
Rogers and receiving clerk Billy Moore (not to be confused
with General Production Manager Frank Moore).
B. Supervisory Status of Supervisor Lester Rogers
and Receiving Clerk Billy Moore
I Facts concerning Rogers
In March 1970, Lester Rogers came from the production
department to the receiving department, where he served as
the receiving clerk. In August 1970 he was given a new job
and title, which he presently holds, supervisor of receiving
and material handling. At the same time Billy Moore, a
former employee who had returned to the Company in July
1970, was moved into Rogers' previous job as receiving
clerk.
Coordinator Finley provided information concerning the
jobs of both Supervisor Rogers and Receiving Clerk Billy
Moore. Rogers was made supervisor of receiving and
material handling, said Finley, to free Rogers from the
time-consuming task of directing the workload of the
receiving department, so that he could become the "eyes
and ears" of the plant manager in the shop, where the plant
manager could not spend much time. Through receiving
clerk Billy Moore, who has taken Supervisor Rogers' old
job, said Finley, Rogers had the responsibility of the
receiving department, and in addition has responsibility for
counting materials for the plant manager, and for the
cleanliness of the plant . In the latter regard , in addition to
the group of four or five full-time employees who serve
directly under the receiving clerk, Supervisor Rogers has
been assigned a trashman directly responsible to him for
cleanup work.
From the whole testimony, it appeared that Supervisor
Rogers' function and supervision was not limited to
overseeing the receiving clerk and employees of the
receiving department and the trashman , but also extended
to employees on the production line, at least in regard to
materials handling and plant cleanliness . For example,
Rogers testified to having reprimanded employee Gillis, of
the sidewall department on the production line, for
improper handling of scrap materials , in Rogers ' opinion;
and employee Gillis acknowledged the occasion , claiming
he gave an explanation satisfactory to Rogers. Employee
Gillis also testified to bringing to Supervisor Rogers'
attention , on several occasions , the inclusion of inferior
lumber in the lumber Gillis was receiving , and asking
Rogers to help correct the situation.
On authority to hire and fire, while Coordinator Finley
was of more definitive contrary information provided by
others. Rogers himself provided some of it, though
reluctantly and with less frankness at the start than his oath
as a witness required . Thus, he initially denied any
authority to hire or fire employees. Nevertheless, under
prodding, he admitted that he had authority, and had
exercised it, to hire and fire part -time employees . Employee
Leon Henry, who was in layoff status about to be recalled
to work, testified that he had seen two occasions when
Supervisor Rogers terminated employees by handing them
their paychecks ; and Rogers himself finally admitted there
were four such occasions, but limited , he said, to
terminating part -time employees.
Concerning full-time employees , Supervisor Rogers
disclaimed any capacity or interest in the hiring, or in
effectively recommending hiring, but then conceded that if
the plant manager and he , Rogers, were satisfied with an
applicant, the plant manager would hire him. Later, Rogers
sought to back away from this concession by stating that his
sole interest was in being satisfied that the new hire was not
too young for insurance coverage. He rather quickly ate
those words by admitting he had to be satisfied that the
applicant was one who would cooperate with receiving
clerk Billy Moore.
Moreover, there was testimony that would indicate that
the line Supervisor Rogers drew for himself between full-
time and part-time employees was probably not there.
Employee Robert Leake, who had operated a forklift as a
full-time employee in the receiving department before his
discharge in January 1971, testified that Rogers hired him
in October 1970, and neither Rogers nor any one else
testified that this was not the case.
Supervisor Rogers also testified that he was in charge of
checking timecards at the end of each week, and that he
made or initialed changes on timecards where , for example,
an employee had checked out and Rogers had called the
employee back to help unload a truck. Again Rogers sought
to back away from saying he had any authority, in this case
to approve timecard changes, but admitted that the office
accepted his timecard markings.
CHICKASHA MOBILE HOMES, INC 809
2. Facts concerning Billy Moore
As already noted in the case of Rogers, Coordinator
Finley testified that the receiving clerk has the time-
consuming task of directing the workload of the receiving
department This means, explained Supervisor Rogers, that
receiving clerk Billy Moore is responsible, through each of
his four or five regular men and any part-time helpers, for
seeing that (1) goods are taken from railway car, truck, and
bus station and placed in the right locations by sizes and
quantities in the warehouse, or in outdoor storage, or at
points in the production line; (2) materials are not damaged
in their unloading and moving; and (3) materials are kept
straight and accessible as inventory moves in and then out
to the production line. The forklift operators look to
receiving clerk Moore for instruction on where and how to
place things, unless they already know where certain goods
go, said Rogers. Small items are kept in cages, with at least
one man working there regularly. Additionally, Moore is
responsible to keep tabs on all goods coming in and to keep
Supervisor Rogers currently informed of all incoming
merchandise and their whereabouts in the plant.
Receiving clerk Moore works directly with everyone in
the receiving department, except the trashman who comes
directly to Supervisor Rogers for instructions, said Rogers,
and if Moore directs employees of the receiving department
to do something they do it. Employees Henry and Leake
also provided corroborative testimony on this score,
indicating that they got their orders and immediate
direction from receiving clerk Moore, that Moore got his
directions from Supervisor Rogers, and that Rogers was
answerable to Plant Manager Hankins.
Receiving clerk Moore, though called to testify by
Respondent, gave no testimony on his role or lack of it in
the hiring and firing process. Employee Leon Henry, who
had worked for Respondent several times over a period of
years, testified that on his last hiring in August 1970, Moore
had hired him, and that he had since observed Moore hiring
some part-time help and terminating their employment.3
Equally indicative that receiving clerk Moore had an
effective part in the hiring and firing process of the
receiving department, was Supervisor Rogers' testimony
that no full-time employee was discharged until Moore and
he had talked about the employee in question and agreed
that the employee was not measuring up. When that
happened, said Rogers, the plant manager followed the
recommendation forthwith, except that if it involved a
person the plant manager did not know he might make a
spot check first.4
Conclusion
In my view, both Supervisor Lester Rogers and receiving
clerk Billy Moore were and are supervisors within the
meaning of Section 2(11) of the Act.
3 Respondent suggests that because the signature of then Plant Manager
Woods (predecessor of Hankins) appears on employee Henry's job
application form (G C Exh 7), Henry was mistaken as to who hired him,
but the presence of the plant manager's signature on the form would hardly
disprove Henry's testimony that it was Moore who was responsible for
hiring him in view of the absence of a denial by Moore, and the testimony
of Supervisor Rogers that it was customary to take a recruit to the plant
manager's office for filling the application form, an interview, and getting a
Supervisor Rogers had total plant responsibility for
receiving materials and material handling. His function left
the plant manager largely free to pursue his major
purchasing function and relieved him from, and placed
upon Rogers, responsibility for day-to-day attention to in-
plant receipt, storage, and use of materials, the disposal of
waste materials, and inventory control. Rogers had not
only oversight of the receiving department (which he
formerly headed as receiving clerk) and waste disposal, but
also, as the "eyes and ears" of the plant manager, had a
roving authority throughout the plant, including the
production line, to see to the proper handling and disposal
of materials by employees. He had authority to hire and fire
employees, and used it; and even assuming a limitation of
concurrence by the plant manager in some cases, Supervi-
sor Rogers had authority to effectively recommend hire or
discharge in those cases.
Receiving clerk Moore, directly answerable to Supervisor
Rogers, had day-to-day charge of the receiving department.
In that capacity he supervised the group of employees who
unloaded goods from railcars, trucks, and bus station
pickups, stored them in the plant, and delivered the
materials to the production line departments. He gave the
receiving department employees their assignments and
orders on a daily basis, or as the occasion arose, and they
obeyed his orders. Moore was responsible to see that the
receiving department employees unloaded and stored the
materials safely and without damage and that they placed
and maintained materials in orderly fashion so that
inventory could readily move in and out. He was
responsible for keeping Supervisor Rogers informed on new
inventory and its whereabouts in the plant.
Receiving clerk Moore had, and exercised, authority to
hire and fire employees. Even assuming a limitation in
some cases of the need for concurrence by Supervisor
Rogers, it was clear that Moore could effectively recom-
mend the hiring or firing. The men of the receiving
department regarded receiving clerk Moore as their boss,
and Supervisor Rogers as his boss and their boss as well.
By all the tests of statute and cases, both Moore and
Rogers were the supervisors in lower echelon management
who provided responsible direction, frequently requiring
independent judgment, to the employees within their
respective jurisdictions. Furr's Inc. v. N.LR.B., 381 F.2d
562, 565-566 (C.A. 10, 1967), cert. demed 389 U.S. 840;
Betts Baking Co. v. N.LR B., 380 F.2d 199, 202 (C.A. 10,
1967); Pacific Intermountain Express v. N.L.R B., 412 F.2d
1, l-4 (C.A. 10, 1969).
Respondent's counsel put store on the fact that
Coordinator Finley was of the opinion that both Supervisor
Rogers and receiving clerk Moore exercised about the same
type of authority as a leadman in the production
department; and that in a representation proceeding after
the trial of this case closed (noted in Respondent's
physical examination
4 Significantly, in the case of the alleged discriminatory discharge of
employee Leake from the receiving department, considered infra, this
procedure was bypassed , and neither receiving clerk Moore , nor Supervisor
Rogers , nor Plant Manager Hankins was consulted according to the
testimony of Purchasing Director Fry (and Supervisor Rogers speaking for
himself)
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supplemental brief), the Respondent and the Union entered
into a Stipulation for Certification Upon Consent Election
which included leadmen among the persons within the
appropriate collective-bargaining unit; therefore, counsel
argued, Respondent's leadmen are not supervisors, and
Rogers and Moore are not supervisors because they are no
more than leadmen.
There are several problems with this kind of logic.
First, the status of leadmen was not in issue in this case.
Even if it had been, a stipulation or determination of that
status in a representation case would not be binding in an
unfair labor practice case involving alleged violations of
Section 8(a)(1) and (3), as here, Amalgamated Clothing
Workers [Sagamore Shirt Co.] v. N.L R.B., 365 F.2d 898,
904-906 (C.A.D.C. 1966).
Second, it was not established that Rogers and Moore are
leadmen . There was only the expression of opinion that
they looked like production leadmen to one (Coordinator
Finley) who did not describe the functions of a production
leadman.
Third, there seems to be an assumption by counsel for
Respondent that being known as a "leadman" precludes
supervisory status under the Act. To the contrary see, for
example, International Association of Machinists v.
N.L.R.B., 311 U.S. 72, 80 (1940); N.L.R.B v. Schill Steel
Products, Inc., 340 F.2d 568, 571-572 (C.A. 5, 1965).
Moreover, the one bit of testimony provided in the present
case regarding the production leadmen (given by Plant
Production Manager Green in explaining his discharge of
leadman Turner) would appear to indicate that the
leadman has the approximately 15 employees in his
department "under his supervision," that he checks the
quality of their work, and has the authority and obligation
to see that their work is done properly. On a fuller showing
in a proper case, the leadman might well prove to be a
statutory supervisor.
In any event, under the proof in this case the status of the
production leadmen was not relevant to the determination
of status of the supervisor of receiving and material
handling, and the receiving clerk. By their proven authority
and functions both of these, Rogers and Moore, were and
are statutory supervisors for whose conduct the employer
may be charged under the Act, N.L R.B. v. Merrill, 388
F.2d 514, 517 (C.A. 10, 1968).
C. Discriminatory Discharge of Employee Robert
Leake
The Circumstances
Robert Leake came to work for Respondent on October
15, 1970. He had been hired by receiving clerk Billy Moore
and was assigned to operate the "production" forklift. The
receiving department operated two forklifts, one designated
the "receiving" forklift, because it engaged more or less
exclusively in the unloading of railcars and trucks and
moving the incoming merchandise to storage, and the
second called the "production" forklift because it primarily
carried materials from storage to the production line
departments, although it also assisted when needed in the
unloading and storage of incoming merchandise.
Employee Leake operated the production forklift without
any complaints by management, indeed was complimented
by Plant Manager Denzil Hankins at a meeting of the
receiving department on doing a good job. Hankins
expressed the hope that he would get more money for
Leake and his coworkers of the receiving department.
On approximately January 22, 1971, employee Leake
engaged in a conversation during coffee break at the
receiving desk with Supervisor Rogers, receiving clerk
Moore, and employee Leon Henry. The conversation
turned to the Union and the organizing campaign it had
begun in November 1970. Leake said he did about as much
talking as any of the four and was asked, as both he and
Henry testified, whether he was going to join the Union.
Employee Leake said he would join if it would do any good.
Employee Henry said he would vote for the Union if he
knew the plant would benefit. According to Leake and
Henry, receiving clerk Moore did not say he was going for
the Union but allowed that if the plant went Union he
would go along with it, if it would help him; and Supervisor
Rogers said nothing.
One week later, on January 29, 1971, without any
advance notice or warning, employee Leake was handed a
final paycheck by receiving clerk Moore and told that he
was forthwith discharged. Moore explained to employee
Leake that the word to discharge Leake had come from
Director of Purchasing Ed Fry and in fact it had, as Fry
admitted. Purchasing Director Fry testified that he
instructed receiving clerk Moore to tell employee Leake
that hisjob was terminated because it was being transferred
from the receiving department to the production depart-
ment, that Plant Production Manager Ed Green preferred
to pick his own man, and therefore Moore had no place for
Leake in the receiving department. Moore repeated this to
Leake but, under questioning by Leake, told him that
Purchasing Director Fry said that Leake was fired because
he was trying to promote a union at the plant. Leake asked
if he could see Fry or Hankins, but was told by Moore that
they would not see him.
At trial, receiving clerk Moore denied telling Leake
anything more than what he had been told to say by
Purchasing Director Fry concerning the transfer of the job,
but there was evidence that Moore was now attempting to
repudiate what he had actually said. Moore had also told
employee Henry, following the discharge of Leake, that Fry
said Leake talked too much union and they couldn't have it
and to get rid of him. Moore did not dispute Henry's
testimony, but Henry did note that Moore began to back
away from this attribution of antiunion motivation after the
Union filed its charge with the Board concerning Leake.
More significantly, employee Leake himself pursued the
matter with receiving clerk Moore and obtained a written
statement from him shortly after the discharge (G.C. Exh.
2) confirming that Purchasing Director Fry had instructed
Moore to fire Leake because he was believed to be a union
man, but to tell him only that his job had been transferred
CHICKASHA MOBILE HOMES, INC. 811
to the production department and there was therefore no
place for him in the receiving department.5
The artificiality of the explanation for employee Leake's
discharge offered by Respondent's management tends to
corroborate what receiving clerk Moore told employee
Leake and the discriminatory nature of his discharge.
Coordinator Finley testified that years ago the prod-
uction forklift had been under the jurisdiction of the
production department and the production manager. In
1967, management decided to put the production forklift
under the jurisdiction of the receiving department (which
already had a receiving forklift) The production forklift
was to perform the same function for production as
hitherto, and there were no changes in duties for the
operator. All that changed was putting the operator under
the plant manager 's line of responsibility instead of the
production manager 's line of responsibility. A similar
arrangement was effectuated at Respondent's other plants,
in addition to Chickasha.
While there was some unhappiness with the arrangement
in the production departments, according to Coordinator
Finley, because production felt it did not have immediate
control of the forklift, nevertheless the arrangement
continued for approximately 4 years, until employee Leake
was fired January 29, 1971. A memorandum dated January
28, 1971 (Resp. Exh. 2), indicated that effective February 1,
1971, supervision of the production forklift operator was
being "temporarily" reassigned from "Material Handling
to Production" on an "experimental" basis. This meant,
said Coordinator Finley, that the change affected only the
production forklift operator at the Chickasha plant, and not
the other plants, and then only on a temporary basis as an
experiment . However, instead of transfering operator
Leake as part of the experiment, he was fired; and Finley
said he didn't know why a hitherto satisfactory employee
was dropped other than that the production supervisor had
the authority to pick whom he wanted to operate the
forklift.
Purchasing Director Fry explained further. It appeared
that he, General Manager Racznski, and General Prod-
uction Manager Frank Moore (the three men constitute
general management of all of Respondent's plants) decided
on the temporary and experimental transfer of jurisdiction
over the production forklift at the Chickasha plant, without
advance consultation of Chickasha Plant Manager Hankins
or Chickasha Production Manager Green. The basis for the
shift was an alleged conflict between the two departments,
production and receiving, over the use of the production
forklift because, said Fry, the man in charge of the
receiving department had the options in use of the forklift.
The conflict did not arise because of any conduct on the
part of the forklift operator, Leake, nonetheless Fry
instructed receiving clerk Billy Moore to notify employee
Leake that he was dismissed.
Neither Plant Manager Hankins nor Plant Production
5 At trial , receiving clerk Moore denied that the note so stating, G C
Exh 2, was written by him However comparing the handwriting specimen
taken from Moore at trial, G C Exh 10, plus the specimens from
Respondent 's files, Resp Exh 8 (a) through ( i), it does not require the help
of a handwriting expert to tell that G C Exh 2 was written by Moore
Moore's handwriting has a distinctive , easily recognizable style right down
to the signature Notwithstanding Respondent counsel's assertion that G C
Manager Green were notified until the transfer of the
forklift and firing of Leake occurred on January 29, 1971,
testified Purchasing Director Fry. Employee Leake was
replaced by employee Darrell Kirkes whom Plant Prod-
uction Manager Green allegedly selected, but who also was
not consulted, said Fry. Employee Kirkes had previously
operated the production forklift in the receiving depart-
ment for about a year, according to Fry, and was working
for Green on some sidewall installation when selected to
replace employee Leake on the forklift. When Green (who
sought to claim responsibility for the firing and replace-
ment of Leake) was asked if he had not considered
retaining employee Leake for the job he had been on,
Green answered, no, "once you're in receiving you're kind
of strictly receiving" - a rather incredible answer in view
of the receiving department work history of replacement
employee Kirkes.
Conclusion
The direct evidence established that employee Leake was
discharged because Respondent believed him to be a union
sympathizer. He admittedly did no organizing for the
Union, but within a week after disclosing to his supervisors
that he could see some good in the employees affiliating
with the Union he was fired. He was told by his supervisor,
Billy Moore, that he was fired for talking in favor of the
Union.
This direct evidence of the discriminatory motivation for
employee Leake's discharge is buttressed by the inferences,
drawn from the employer's claimed reason seeking to
repudiate the discriminatory reason . The claim boiled down
to an assertion that, because the receiving and production
departments were allegedly in conflict over how best to use
the employee's time , the admittedly unoffending employee
was discharged when his job was transferred from the
receiving department to the production department. The
preposterousness of the claim became even more evident
when it appeared that the decision to transfer the job and
not transfer the occupant (Leake) was made by Respon-
dent's top management without consulting the plant
manager and plant production manager, who supposedly
had the conflict but for all that appears were not aware of
it; that the transfer of the job (minus the occupant) was
only a temporary experiment applicable to the one job and
not to the similar jobs in Respondent's other plants; that
the transfer entailed no change in job duties; and that
employee Leake's replacement had also occupied the
identical job, also in the receiving department. The
unseemly haste in getting rid of employee Leake on
January 29, 3 days before the effective date of the job
transfer, February 1 (as called for in the office memoran-
dum, (Resp. Exh. 2), without any prior notice or discussion
with him, additionally suggests Respondent's sole concern
and preoccupation with Leake' s union sympathies.
Exh 2 is signed Billy B Moore, it is clearly signed Billy R Moore
(emphasis supplied ) when one observes in G C exhs 2 and 10 and Resp.
Exhs 8a, 8f, and 8g , where Moore has used his middle initial in signing, the
letter R, that could be taken for an R or B if it were all by itself, is indeed
Moore's style of R in his signature quite different from the unmistakeable
B in Billy
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's alleged reason for the discharge of
employee Leake was a pretext to cover a discriminatory
discharge in violation of Section 8(a)(3) and (1) of the Act.
Great Atlantic and Pacific Tea Co v N L.R B., 354 F.2d
707, 709 (C.A. 5, 1966).
D. Coercive Interrogation , Impression of
Surveillance
The discharge of employee Leake on January 29, 1971,
because he talked too much about the Union, was
apparently the first overt notice to the employees that
Respondent was hostile to the Union coming into its plant
and would use strong, even illegal, methods if needed to
stifle any organizing. As already indicated, the word was
spread to other employees, as when employee Leon Henry
was told by his supervisor, receiving clerk Billy Moore,
following Leake's discharge, that on Purchasing Director
Fry's directions Leake was discharged because he talked
too much union and the employer couldn't have that.
Another and later example that the word was out among
the employees involved employee Kirkes, who replaced
employee Leake in operating the production forklift In a
coffee break conversation in the receiving department, that
also included employee Henry and Supervisors Lester
Rogers and Billy Moore, the subject of the Union came up,
and employee Kirkes said, "We had better not be talking
about the union, we'd wind up like Bob Leake " Supervisor
Rogers commented that Leake was not fired because of the
Union, whereupon, said employee Henry, Billy Moore
chimed in to agree, causing Henry to "raise an eyebrow" in
view of what he had been previously told
The Union held its first meeting of employees in
February 1971, although organizing had begun earlier in
late 1970, according to Union Representative Salyer.
Employees Hoyt Underwood (employed at the time of the
trial), and Leon Henry (in layoff subject to recall, at time of
trial), both of the receiving department, were among those
who attended the union meeting. Next day at the morning
gathering at the receiving desk, Supervisor Lester Rogers
(who had been a listener at the January conversation
concerning the Union, participated in by employees Leake,
Henry, and others) asked Henry and Underwood if they
had gone to the union meeting and how it went. Henry said
he had attended and Underwood said it was a good
meeting. Henry had told Rogers he was going to the
meeting but Underwood had not
Had the incident been isolated, the inquiry by Supervisor
Rogers might arguably be regarded as not violating the Act.
However, considered in the context of the hostile
atmosphere to self-organization (triggered by the discharge
of Leake) that had begun to make employees wary, such
inquiry by a supervisor was bound to have a coercive and
restraining effect on the employees. In the circumstances, I
find that Supervisor Rogers created the impression of
6 Respondent's memorandum, Resp Exh 3, issued later to all
supervisors at the Chickasha plant (March 18, 1971), purported to counsel
the supervisors against any such openly illegal conduct toward employees,
including advice against spying on union meetings or activities or asking
employees questions about the Union The memorandum advised the
supervisors of the Company's opposition to unionization of the plant and
to tell the employees so if they asked It also directed the supervisors to
report any union activity during working hours
surveillance , and coercively interrogated the employees,
concerning the employees ' union meeting and their
attendance , in violation of Section 8(a)(1) of the Act.6
Hendrix Mfg. Co v. N.L. R.B., 321 F .2d 100 , 104 (C.A. 5,
1963).
E Discriminatory Discharge of Employee Gillis
The Circumstances
In March 1971, Respondent concluded it was necessary
to cut down production at the Chickasha plant from five
coaches per day to four coaches per day, and accordingly,
on March 22, 1971, reduced the production force by 25
employees. Of the 25 employees, 16 were laid off (with the
expectation they would be called back in the future) and 9
were discharged (permanently) (see Resp. Exh. 1). Since the
time of the cutback the laid-off employees have been
restored to their jobs, taking jobs vacated in the usual
turnover, according to Coordinator Finley.
One of those discharged was employee Thomas Gillis.
Gillis had been with Respondent 12 years, and had been
among the first of the employees hired at the Chickasha
plant in 1959. For most of his time of employment his
function related to the sawing of wood. He worked in the
sidewall department, where he was the senior employee of
14 employees at the time of his discharge on March 22,
1971
While the plant had undergone three layoffs during his 12
years of employment, employee Gillis had never been laid
off before. He had been included in every wage increase,
and was at the top rate of pay when discharged.
In February 1971, employee Gillis began attending the
union meetings. He talked about joining to others, gave out
some union authorization cards, and got back two signed
cards which he turned over to the leadman of the sidewall
department, Bob Miller. Employee Gillis apparently made
no effort to conceal his interest in the Union. He talked to
fellow employees in the plant lavatory, and he hung a union
keynng visibly on the handle of his saw. (The keyring, G.C.
Exh. 3, had attached a 2-inch leather pendant with the
inscription, "Vote for and support your union," on one side,
and the seal and full name of the Carpenters Union, on the
other.) Gillis said he knew Production Manager Ed Green
and Foreman Reuben Hogstead saw the keyring because he
saw them looking at it. Green denied seeing it. Hogstead
did not testify.
In any event, management was aware of employee Gillis'
interest in and activities for the Union. In March 1971,
former production manager of the Chickasha plant and
then in charge of design and improvements, Robert (Bob)
Clark, came to Gillis and warned him about talking about
the Union on company time. Clark told Gillis, "Do it on
your own time, the office knows what's going on." 7
The decision to cut 25 employees from the approximately
r This testimony was uncontradicted The evidence concerning Clark
indicated that he still retained the supervisory status he obviously had had
as plant production manager In March 1971 he had three employees
working directly for him in design, improvement, and repair, and
apparently had the run of the plant in selecting employees to do spot jobs
for him Employee Gillis was one of those he had asked to perform work
occasionally By any test, Clark was a management spokesman, see Belts
Baking Co v N L R B, 380 F 2d 199, 202-203 (C A 10, 1967), N L R B v
(Continued)
CHICKASHA MOBILE HOMES , INC. 813
140 or 150 employees in production was a top management
decision in which he participated, said Coordinator Finley;
but the decision as to who the 25 should be, and whether
laid off or discharged, was delegated to Plant Production
Manager Ed Green, according to Finley.
Actually Plant Production Manager Green was new at
the job, less than 9 months at the Chickasha plant, and
conceded that he had to depend largely on the 2 foremen
and 10 leadmen for his information. In the case of
employee Gillis, the complaints or causes for deciding that
he was a borderline or marginal employee, as Green
phrased it, who should be permanently discharged and not
merely laid off, turned out to be relatively new, somewhat
coincident in time with the period of Gillis' interest in the
Union.
The major complaint was difficult to attribute to
employee Gillis alone, if at all, nevertheless it was assessed
to him entirely by Respondent as indicative that he was an
inferior worker. The Company had received field com-
plaints that coach floors were cracking and buckling at the
seams. Production Manager Green conceded that there
were a number of possible contributory causes that were
being investigated in order to correct the deficiency at the
time of the March 1971 cutback in force. One cause was
believed to be an insufficiency of glue in aiding plywood
seam strips to adhere to floor joists. The strips were both
glued and stapled. Employee Gillis was among the men
who took part in the gluing and stapling of the strips, and
he recalled being cautioned by Foreman Hogstead in
March 1971 to be sure to apply glue liberally. Gillis testified
that he complied. Nevertheless Gillis has been charged with
a failure to glue properly.
In February 1971, Foreman Hogstead also cautioned
him, according to Gillis, to be careful about the size of dado
cuts in the 2- by 6-inch joists. The widths of the so-
called 6-inch lumber coming into the production line were
not uniform and were varying downward by small fractions
of an inch (as both Gillis and Green indicated) and the
dado cuts had to be proportionately varied to avoid being
too deep. Gillis said that Foreman Hogstead and he agreed
that he use a slightly smaller cut to allow for the thinner
lumber According to Production Manager Green, employ-
ee Gillis is charged with not properly making dado cuts.
According to Production Manager Green, on one
occasion Foreman Hogstead reported employee Gillis
away from his work station Gillis testified that his work
required some moving about the production line, and
testified that he had never been cautioned or reprimanded
by anyone about wandering around the plant.8 Neverthe-
less he was charged by Green with "strolling around the
plant away from his work area."
The other two complaints about employee Gillis (there
were five in all listed in Resp. Exh. 4, page 2, compiled by
Production Manager Green and Coordinator Finley) relate
to his complaints to management about putting him into
close quarters hampering his operation, when he was
Des Moines Foods, Inc, 296 F 2d 285, 287, 288 (C A 8, 1961)
N It should be noted that Foreman Hogstead, the alleged first-hand
source for this and other complaints about employee Gillis was not called
to testify
9 After an afterthought, Green added a complaint, not listed in Resp
moved into a new location; and having to spend his
production time in picking out and discarding warped,
green, or otherwise inferior lumber, when he felt this was
something that Supervisor (of material handling) Rogers
should have been doing. The evidence indicated that Gillis
had more space than he needed in his original location but,
in the move, lost a great deal of space, and had a promise
from Foreman Hogstead and Green to get back a little
more; also, that Green agreed that there was poor lumber
coming through with the good, and that Gillis would have
to discard the poor lumber and stack it outside when he
detected it; nevertheless Green chose to treat these
complaints as a failure by Gillis to "fully cooperate."9
Conclusion
On March 22, 1971, Plant Production Manager Green
handed employee Gillis his final paycheck and notice of
discharge. He told Gillis that he was being let go because
his work was not satisfactory. Green did not specify in what
respect his work was unsatisfactory, and Gillis said to
Green that he had never complained of his work before.
Green replied, "I have to do my job, this comes from the
office, they are not satisfied." At trial, however, Green
sought to assume full responsibility for the discharge of
Gillis.
Plant Production Manager Green had also sought to
assume responsibility for the earlier discharge of employee
Leake, hitherto considered, where it was patent that the
decision had been made above and for him. Even if Leake's
case had been Green's decision, his assertion, in the
circumstances of that case, that he didn't consider retaining
Leake, because "once you're in receiving you're kind of
strictly receiving," and then turning the job over to one who
had done the job in receiving, impugned Green's credibili-
ty. I am inclined to believe that Green was likewise
stretching the truth in making a case of poor performance
against employee Gillis, by generally stating only part of
the whole story in each of his bill of particulars. Indicative
was the readiness in Green's testimony, to blame Gillis for
defective flooring while the several possible causes in the
whole assembly process were still under investigation, and
it was not at all clear that Gillis had failed to do his part of
the operation.
The fact that the alleged faults found with employee
Gillis cropped up for the first time, in his 12 years of
employment, more or less coincident with his becoming
active for the Union, suggests that but for his union activity
he would not have been the subject of complaint or
involved in the March 1971 cutback in employment. He
had been untouched in three previous cutbacks in the
course of his employment, a fact that in itself suggests that
he was, and was regarded as, a satisfactory employee.
Of course, employee Gillis' union activity did not
immunize him from discharge for other cause. But the
question here is " `not whether there existed a valid ground
Exh 4, by Supervisor Rogers that employee Gillis had not been using his
dumpster properly for scrap material Gillis testified (and Rogers agreed)
that the problem concerned very long pieces of scrap lumber These
required his time and work in order to break up, if he had to put it in the
dumpster Gillis said he pointed out to Rogers it would be easier all around
if the forklift picked up this scrap, and that Rogers agreed
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for discharge, but whether the stated ground was the real
one.' J.P Stevens and Co. v. N.L.R B, 380 F.2d 292, 300 (2d
Cir. 1967)." N.L.R.B. v. Ulbrich Stainless Steels, Inc., 393
F.2d 871, 872 (C.A. 2, 1968).
In my view Respondent's stated ground was designed to
conceal the unlawful motive, Shattuck Denn Mining Corp. v.
N.L R.B., 362 F.2d 466, 470 (C.A. 9, 1966). Respondent was
hostile to unionization of its plant, knew of employee Gillis'
open sympathy and activity for the Union, as Chief
Designer Clark stated and the display by Gillis of the union
keynng indicated,10 and discharged him The fact that
some of the layoffs, made at the same time, were
economically justified, is no defense for the selection of an
employee for layoff or discharge on the basis of union
adherence or affiliation, N.L R.B. v. Bedford Nugent Corp.,
379 F.2d 528 (C.A. 7, 1967). And, assuming that a valid
ground for discharge existed, it does not constitute a
defense to the unfair labor practice charge where the
discharge was not predicated solely on that ground but was
based, even partly, on a desire to discourage union activity,
Belts Baking Co. v. N.L R.B., supra, 380 F.2d 199, 203 (C.A.
10, 1967); N.L.R.B. v. Nachman Corp, 337 F.2d 421,
423-424 (C.A 7, 1964). The discharge of employee Gillis
was a violation of Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By discnminatorily discharging employees Leake
and Gillis, because of their union sympathy or activity and
in order to discourage the support by employees for the
Union, Respondent engaged in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act.
2. By interrogating employees and creating the impres-
sion of surveillance concerning union meetings and their
attendance, Respondent engaged in unfair labor practices
in violation of Section 8(a)(1) of the Act.
3. The described unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It will be recommended that the Respondent : ( 1) cease
and desist from its unfair labor practices; (2) offer to
reinstate employees Robert Leake and Thomas Gillis with
backpay from the time of discharge , the backpay to be
computed on a quarterly basis as set forth in F. W.
Woolworth Company, 90 NLRB 289 ( 1950), approved in
N L.R.B. v. Seven - Up Bottling Co., 344 U.S. 344 ( 1953), with
interest at 6 percent per annum as provided in Isis Plumbing
& Heating Co ., 138 NLRB 716 (1962), approved in Philip
Carey Mfg. Co. v. N.L. R.B., 331 F .2d 720 (C.A. 6, 1964),
cert . denied 379 U.S. 888; and (3) post the notices provided
for herein.
Because the Respondent by its conduct violated funda-
mental employee rights guaranteed by Section 7 of the Act,
is In view of the close watch kept on employee Gillis in February and
March 1971, as the list of complaints against him would appear to show, it
is hardly likely that the union keyring attached to his saw escaped the
notice of his supervisors
ii In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Order herein shall, as
provided in Section 102 48 of the Rules and Regulations, be adopted by the
and because there appears from the manner of the
commission of this conduct an attitude of opposition to the
purposes of the Act and a proclivity to commit other unfair
labor practices , it will be recommended that the Respon-
dent cease and desist from in any manner infringing upon
the rights guaranteed by Section 7 of the Act. N.L.R.B. v.
Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941);
N.L.R.B. v. Bama Company, 353 F.2d 323-324 (C.A. 5,
1965); P. R. Mallory and Co. v. N.L.R. B., 400 F.2d 956,
959-960 (C.A. 7, 1968), cert . denied 394 U.S. 918.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended: 11
ORDER
Respondent, Chickasha Mobile Homes, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees because of their union
sympathies, or for engaging in union activities, or for
recruiting other employees to become members of the
Union or to engage in union activities.
(b) Interrogating employees or creating the impression of
surveillance of employees about union meetings and their
attendance at union meetings.
(c) Discouraging membership of its employees in a union
or other labor organization, by discharging employees or
otherwise discriminating against them as to their hire,
tenure, and conditions of employment, or in any other
manner interfering with, restraining, or coercing employees
in the exercise of their rights guaranteed under Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to employees Robert Leake and Thomas Gillis
immediate and full reinstatement to their former jobs or, if
the jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and make them whole, in the manner set
forth in the section of this decision entitled "The Remedy,"
for any loss of earnings each may have suffered as a result
of his discharge. Notify each, if serving in the Armed
Forces of the United States, of his right to full reinstate-
ment upon application after discharge from the Armed
Forces.
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to ascertain the backpay due under the terms of
this Order.
(c) Post in its establishment at Chickasha, Oklahoma,
copies of the attached notice marked "Appendix." 12
Immediately upon receipt of copies of said notice, on forms
Board and become its findings, conclusions, and order , and all objections
thereto shall be deemed waived for all purposes.
i2 In the event that the Board's Order is enforced by ajudgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
CHICKASHA MOBILE HOMES, INC.
to be provided by the Regional Director for Region 16
(Fort Worth, Texas), the Respondent shall cause the copies
to be signed by one of its authorized representatives and
posted, the posted copies to be maintained for a period of
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director of Region 16, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply
therewith.13
13 In the event that the recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director of Region 16, in writing, within twenty days
from the date of this Order, what steps Respondent has taken to comply
therewith "
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 having found, after a
trial, that we violated the National Labor Relations Act:
WE WILL NOT fire you because of your union
sympathies, or because you engage in union activities,
or because you recruit other employees to become
members of the Union or to engage in union activities.
WE WILL NOT question you about union meetings or
your attendance at union meetings.
WE WILL NOT, in any other manner, discriminate
against you to discourage your membership in a labor
815
union or interfere with your right to join, assist, or be
represented by, a labor union, or interfere with any of
your other rights of self-organization and mutual aid
guaranteed by Section 7 of the National Labor
Relations Act.
Since the Board found that we fired Robert Leake on
January 29, 1971, because of his union sympathy, and
fired Thomas Gillis on March 22, 1971, because of his
union activity, WE WILL offer each his oldjob back and
give each backpay. If either of them is in the Armed
Forces of the United States, we will notify him of his
right to reinstatement upon application after discharge
from the Armed Forces.
Each of you is free to become or remain, or refrain from
becoming or remaining, a member of United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, or any
other labor union.
Dated By
CHICKASHA MOBILE HOMES,
INC.
(Employer)
(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 compliance with
its provisions, may be directed to the Board's Office,
Federal Office Building, Room 8-A-24, 819 Taylor Street,
Fort Worth, Texas 76102, Telephone 817-334-2921.