Fleetwood Trailer Co., Inc.

National Labor Relations Board - Board Decisions

Sep 13, 1957

118 N.L.R.B. 1355 (N.L.R.B. 1957)

FLEETWOOD TRAILER CO., INC. 1355
immediate and full reinstatement to his former , or a substantially equivalent , position
without prejudice to his seniority or other rights and privileges, and make him whole
for any loss of earnings he may have suffered by reason of said discrimination by
payment to him of a sum of money equal to that which he normally would have
earned from the date of his discharge to the date of Respondent 's offer of reinstate-
ment , less his net earnings during said period . Said loss of earnings shall be
computed in accordance with the customary formula of the National Labor Relations
Board . See N. L. R. B. v. Seven-Up Bottling Company of Miami, Inc., 344 U. S.
344, and F. W. Woolworth Company, 90 NLRB 289. It will also be recommended
that the Respondent preserve and, upon request , make available to the Board or its
agents for examination and copying all records necessary and useful to determine
the amount of back pay due under the terms of this Recommended Order, including
pertinent social-security payment records , timecards , and personnel records and
reports.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. By discharging Herman Hartman and thereafter failing and refusing to re-
instate him to his former, or substantially equivalent , position , the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) and (3) of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed them in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Fleetwood Trailer Co., Inc . and Amalgamated Local No. 990,
International Union , Allied Industrial Workers of America,
AFL-CIO. Case No. 92.1-CA-257. September 13, 1957
DECISION AND ORDER
On March 18, 1957, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
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 copy, of the Inter-
mediate : Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in. connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the.
118 NLRB No. 179.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, and hereby adopts the findings and conclusions of the Trial
Examiner, but rejects his recommendations for the reasons set forth
below.
The Trial Examiner found, and we agree, that the Respondent
violated Section 8 (a) (1) of the Act in telling its striking employees
on August 6,1956, that because of their engagement in a strike they had
forfeited their employment. The Respondent contends that the evi-
dence does not establish a violation. The findings that the Respondent
would upset rest in large part on the Trial Examiner's credibility reso-
lutions. The Trial Examiner had the advantage of observing the
demeanor of the witnesses and credited the General Counsel's witnesses
rather than the Respondent's in their explanation of the events of Au-
gust 6. A clear preponderance of all the relevant evidence does not
convince us that,the Trial Examiner's resolutions were incorrect.'
Accordingly, we adopt them.
We do not adopt, however, the Trial Examiner's recommendations
respecting remedial action in the case. The Trial Examiner recom-
mended an order requiring the Respondent to cease and desist from
the unfair labor practices found and to post a notice to employees to
that effect. This recommendation failed to consider affirmative ac-
tion already taken by the Respondent to remedy the violation. On
August 6, 1956, when, as the Trial Examiner found, the Respondent's
vice president, Stearns, told striking employees that if they continued
the strike, they would be discharged, local newspapers published
accounts of that event. Immediately upon reading the newspaper ac-
counts, Stearns spoke to the newspapers' representatives, and wrote
confirming letters to them, correcting those accounts. He specifically
wrote that the employees were not being terminated, and that any em-
ployee who desired to return to work could do so without loss of pay,
provided a vacancy existed. The following day the newspapers pub-
lished the corrected version. At the hearing the General Counsel ex-
pressly disclaimed any contention that the economic strike was con-
verted into an unfair labor practice strike by any conduct of the
Respondent. Further, there is no allegation and no finding that any
striker was refused employment, and the reinstatement rights of the
strikers are not in issue here. Under these circumstances, although
the Respondent by its earlier conduct violated the Act, is dispelled any
coercion inherent in that conduct by its prompt repudiation of threats
of discharge and its publication of such repudiation by unambiguous
and effective notice. We therefore find no remedial order required.
We shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
I Standard Dry Wall Products , 91 NLRB 544 , 545, enfd . 188 F. 2d 362 (C. A. 8) ;
N. L. R. B . v. Universal Camera Corp ., 190 F. 2d 429 , 430 (C. A. 2).
FLEETWOOD TRAILER CO., INC. 1357
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges duly filed by Amalgamated Local No. 990,
International Union, Allied Industrial Workers of America, AFL-CIO, herein
called the Union, against Fleetwood Trailer Co., Inc., herein called the Respondent,
the General Counsel of the National Labor Relations Board filed his complaint
dated December 12, 1956, alleging that the Respondent had committed and was
committing unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and Section 2 (6) and (7) of the National Labor Relations Act,
fit Stat. 136, herein called the Act.
In respect to unfair labor practices the complaint alleges that on August 6, 1956,
the Respondent by its officer and agent, William D. Stearns, informed its employees
then on strike that they were discharged and did in fact on that date discharge
them because of their participation in the strike and in retaliation therefor.
Respondent's answer, duly filed, denies the commission of unfair labor practices.
Pursuant to due notice a hearing on the complaint was held before the duly
designated Trial Examiner in Los Angeles, California, on February 12, 1957. The
General Counsel and the Respondent were represented by counsel who participated
in the hearing and were afforded opportunity to examine and cross-examine wit-
nesses and to introduce evidence pertinent to the issue. A brief has been received
from counsel for the Respondent.
Upon the basis of the entire record in the case, and from my observation of
the witnesses, I make the following findings of fact:
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation with its main office and principal
place of business in Anaheim, California, where it is engaged in manufacturing and
selling mobile home trailers. In the course and operation of its business Respondent
ships and causes to be shipped from its Anaheim plants to points in States other
than the State of California products valued in excess of $50,000 annually. The
Respondent concedes and I find that it is engaged in commerce within the meaning
of the Act.
H. THE ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
On May 15, 1956, the Union was certified as collective-bargaining representative
of Respondent's employees and thereafter the Respondent and the Union negotiated
in respect to a collective-bargaining agreement until August 6, 1956. On that date
a strike called by the Union began which has not since formally been settled.
William P. Smith, the Union's business representative, John Mutimer, Lillie
Turner, Gladys Gray, and Irene Allen, striking employees, and Virginia Gibbens,
a laid-off employee, all testified that they were present at the perimeter of the plant
property at about 7:00 on the morning of August 6 when William Stearns, Re-
spondent's vice president, spoke to them. According to the witnesses just named,
Stearns said that the plant was open and would be kept open for the purpose of
building trailers; that anyone who wanted to go to work could do so; and that if
they did not report for work they would no longer be considered employees of the
Respondent. Gibbens testified additionally that a short time later Stearns came to
her, reminded her of her status as a laid-off employee, told her that he had promised
to give her employment when a job opening developed, and said that he had need
for her services now. Gibbens said that she would not cross the picket line. Stearns
replied that his obligation to her was then ended. Either shortly before or just after
this conversation with Gibbens, and after all those present had indicated their inten-
tion not to work, Stearns gave them their paychecks. The next day, Tuesday, was
the usual payday.
John Perkins testified that he came to the plant at about 8:00 on this morning
and saw the pickets at the gate. Stearns said he could go to work if he wished. Per-
kins said that he would not cross the picket line. Stearns gave him his paycheck
and said, "You just quit, then."
Violet White testified that when she came to the plant in the early morning of
August 6 and saw the pickets she drove back home. Later that morning, according
to White, Stearns and another representative of the Respondent came to her home
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and told her that the factory was open, that they were still building trailers, and
asked if she wanted to come to work. At about this point Stearns handed White
her paycheck and White inquired if she was fired. Stearns replied, according to
White, "No , you are automatically quitting."
Francis de Mars, a police officer for the city of Anaheim , testified that in the per-
formance of his duties he was present at the plant gate at about 7 : 00 on the morning.
of the strike and heard Stearns tell the assembled employees that the plant was open,
that it was his purpose to build trailers, and that all were invited to go in to work.
De Mars testified that he stood within 4 or 5 feet of Stearns at the time that the latter
was talking to the employees , and that at no time did Stearns tell any of the employees
that their employment was terminated . Witnesses Smith, Gibbens, Turner , and Gray
testified that no police officer was present beside Stearns at the time the latter spoke.
Stearns testified that he did not recall seeing De Mars near him at that time.
William Stearns testified that he told the employees on this occasion that he in-
tended to operate the plant, that trailers would be built, and that all were invited
to come in to work. He denied that he said anything to the group which might be
construed to indicate a purpose to discharge them because of their refusal to work.
Stearns explained that although paychecks were not due until the next day he was
concerned lest he violate a California statute which requires that in the event of a
strike unpaid wages earned by striking employees become due and payable on the
next regular payday. According to Stearns even though the next regular payday
was the following day he feared that if he entrusted the checks to the mail the
employees or some of them might not receive them on the day when they were due
and that he might thus find himself guilty of an infraction of the California statute.
Stearns testified that he spoke to Gibbens much as she testified , offering her employ-
ment in fulfillment of a promise made to her several weeks earlier , and that he told
her when she refused to accept the offer that the obligation represented by the promise
no longer existed.
Conclusions
I do not believe that Stearns was concerned about the statute relating to payment
of wages to the strikers on the morning of August 6. The statute, briefly, does no
more than require an employer not to discriminate against striking employees in
connection with making their earnings available to them on regular paydays. Stearns'
obligation under the statute would clearly have been satisfied if he had checks
prepared on the regular payday and either mailed them to the strikers or held them
at the plant office available to them. He also explained , however , that the occasion
offered a convenient opportunity to distribute the checks and this is of course true.
The contradiction between the testimony of Stearns on one hand and the striking
employees on the other is flat . Stearns is of course outnumbered by the employees,
but this is not a prime consideration in resolving the credibility question . Stearns is
supported in his version by the testimony of a police officer who has no apparent
interest in the outcome of this dispute . Of course the fact that he is a policeman
does not warrant according greater credence to his testimony than to that of the
strikers , but De Mars seemed open and ingenuous as a witness and I have no serious
doubt but that he gave as accurate , complete, and honest a report of what he heard
and saw that morning as his memory permitted . Every witness for the General
Counsel , however, gave me the same impression. I am convinced that each of them
testified forthrightly and truthfully . I think that the difference between the testimony
of the police officer and the strikers is probably to be explained by the fact that their
interests on this occasion were different . The police officer was there solely for the
purpose of seeing that disorders did not develop, and if they did, to correct them.
The strikers were there for the purpose of demonstrating their support of the strike
and their interest in their employment . A suggestion or a statement that their jobs
were terminated or threatened by their strike action would be of immediate and
compelling interest to them and would not have gone unnoticed . A similar statement
coming to the ears of De Mars would not have had such an impact and would less
likely be remembered . Of course Stearns denied that he said anything importing
a discharge, but either he or the strikers are wrong on this point and considering
his testimony in the context of the attending circumstances , I do not credit his denial.
This was a time when his emotions were involved. It was a serious matter for him
to see the threat to the operation of the business that the picket line represented. He
was concerned of course whether he could secure sufficient employees in the presence
of a picket line to permit a profitable operation . I consider it highly probable that
in such a situation and in his eagerness to continue his business operation he would
have, as a means of impressing upon the strikers the seriousness of the action they
were taking , told them that they either could work or lose their employment.
His remarks to Gibbens indicate that he felt that the employees should either work
STRETCH-TEX CO. 1359
or abandon their employment status. It was stipulated at the. hearing that Gibbens
had the status of a laid-off employee and that she was entitled to the next opening in
her classification. However, when she refused to cross the picket line Stearns told
her, as. he testified, that the obligation no longer existed. This was tantamount to
discharging Gibbens from her status as a laid-off employee with preferential employ-
ment rights because of her identification with the strikers and is the same action
which the other strikers who testified attributed to Stearns in connection with them.
When Stearns arrived at the plant it was obvious that a strike was in progress. The
employees, or at least a number of them, instead of proceeding into the plant and
to their work stations, were gathered about the entrance. When they failed to
respond to his invitation to go in to work he distributed the paychecks. Having
found that Stearns was not impelled by his interpretation of California law in thus
advancing the payday, I am convinced that he did so to emphasize to the strikers
present that their refusal to work signalled their separation from the Respondent's
payroll. I consider the payment later that morning to Perkins to have the same
intended significance and the payments to those individual employees whom he sought
out at their homes to constitute a further implementation of this purpose. The evi-
dence persuades me that Stearns did tell the strikers assembled before the plant gate
on the morning of August 6, and later that day Perkins and White, that because they
would not go to work their employment was terminated. I have no doubt but that
he later learned that he should not have spoken in that fashion and has perhaps
persuaded himself that he did not do so.
I find that by telling the striking employees on August 6, 1956, that because of
their engagement in a lawful strike they had forfeited their employment with the
Respondent, the Respondent interfered with, restrained, and coerced them in the
exercise of rights guaranteed in Section 7 of the Act, and that the Respondent has
thereby violated Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with
its operations described in section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it will
be recommended that it cease and desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act. Reinstatement is not sought and
therefore is not recommended.
Upon the basis of the foregoing findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Amalgamated Local No. 990, International Union, Allied Industrial Workers
of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5)
of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Stretch-Tex Co. and United Textile Workers of America, AFL-
CIO, Petitioner . Case No. 10-RC-3526. September 13,1957
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a Decision and Direction of Election issued on
September 4, 1956, an election by secret ballot was conducted on
118 NLRB No. 183.