Four Winds Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1974

211 N.L.R.B. 542 (N.L.R.B. 1974)

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Four Winds Industries, Inc. and Orange County
District Council of Carpenters , affiliated with the
United Brotherhood of Carpenters and Joiners of
America„ AFL-CIO. I Cases 21-CA-11403, 21
-CA-11507, and 21-RC-12985
June 13, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 17, 1973, Administrative Law Judge E.
Don Wilson issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
1. We affirm the Administrative Law Judge's
finding that H. Lee Walters, the Respondent's
president, did not engage in surveillance of its
employees' union or other protected concerted
activities at a meeting held on company property for
the purposes of collective bargaining or other mutual
aid or protection, as alleged in the complaint. In so
doing, however, we rely solely on the ground, stated
by the Administrative Law Judge, that Walters'
activities were without threat or coercion and were
therefore nonviolative of the Act. We therefore find
it unnecessary, and we do not pass on any of the
other grounds stated by the Administrative Law
Judge in regard to this issue.
We further affirm the Administrative Law Judge's
finding that the Respondent, through Thomas E.
McAfee, its shop supervisor, did not threaten
employees with plant closure if they continued
supporting the Union, in violation of Section 8(a)(1)
of the Act, as alleged in the complaint.
2. Contrary to the Administrative Law Judge, we
find that the Respondent violated Section 8(a)(1) by
means of statements, contained in its preelection
letters, that the Union never signs a contract, to the
Respondent's knowledge, without a union-security
clause; the Respondent is opposed to such a clause
and does not "believe we have any moral right to
force any of our people to join any union to keep
their jobs"; the Union would inevitably make
unreasonable demands which could be enforced only
by a strike; "if there is a strike we are not going to
close down our operations for even one day"; and
finally advising the employees of the Respondent's
right to hire permanent replacements in the event of
such strike. When considered with the other viola-
tions hereinafter found, these statements, in our
opinion, abridged employee rights guaranteed by
Section 8(a)(1) of the Act. Tommy's Spanish Foods,
Inc., 187 NLRB 235.
The above-described statements which, with the
single exception noted below, are common to both
Tommy's Spanish Foods and the instant case clearly
amount to warnings which, in the language of the
Board in Tommy's Spanish Foods, supra, 240, had the
cumulative effect of telling employees that
... the Union would inevitably call an unfair
labor practice strike because of Respondent's
bad-faith anticipated refusal to bargain about
union security, if the Union should seek such
security, and that it would permanently replace or
discharge unfair labor practice strikers.
We reject as without merit the Administrative Law
Judge's effort to distinguish the instant circum-
stances from those in Tommy's Spanish Foods on the
basis of the Respondent's expression of a moral, as
opposed to outright, opposition to negotiating a
union-security clause. In our opinion this attempted
distinction, in the instant circumstances, is semantic
only and therefore devoid of legal significance.
3. We find, contrary to the Administrative Law
Judge, that the Respondent discharged employees
Joe Rodarte and Jay Cormier and failed to reinstate
them because they engaged in union or other
protected concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion, in violation of Section 8(a)(3) and (1) of the Act,
as alleged in the complaint.
According to probative testimony adduced at the
hearing, Rodarte was hired in January or February
1972. Within 2 months, he received two raises in pay
and was promoted to leadman. On several occasions
through October 1972, he was complimented on his
good work. Cormier was hired in March 1972. By
August 1972, he had received three pay raises and
had been complimented on his good work. That
same month, Walters, the Respondent's president,
told Cormier he wanted "a few good men from the
camper building to go over to the motor home
building and pick it up." In October 1972, Cormier
was transferred to the motor home building.'
Rodarte was the key union organizer at the
The Administrative Law Judge found that Rodarte and Cormier did Cormier were complimented on their work and again added speculatively;
receive pay raises, but added speculatively ; "This may or may not have "So far as the record is concerned , every employee may have been
been true of every other employee ." He tacitly conceded that Rodarte and complimented on his job performance regularly, including other employees,
211 NLRB No. 60
FOUR WINDS INDUSTRIES, INC. 543
Respondent 's plant . on October 9, 1972, Rodarte,
with the assistance of Cormier and other employees,
commenced distributing union authorization cards
outside the Respondent 's plant . By October 12, more
than 75 percent of the Respondent 's employees had
signed cards . Miller, the union representative , visited
the Respondent 's plant on October 24, told Walters
that the Union had a majority of the authorization
cards , and requested recognition . Walters replied
that he had important business out of town and
suggested a meeting on October 26. On October 26,
the Respondent sent Walters a letter , found by the
Administrative Law Judge to constitute a "clear and
unequivocal demand to bargain ," which asked for
immediate recognition and requested a meeting for
contract negotiations . The October 26 meeting was
canceled, and when the parties met on October 27
the Respondent stated that it would not recognize
the Union and suggested that it pursue Board
processes.
Following Miller's demand for recognition, Wal-
ters became concerned about unionism at the plant
and at small group meetings on ensuing days
discussed the question of the Union 's majority status
with a total of 15 to 20 employees , out of the total
employee complement of approximately 40 employ-
ees. On November 1, Miller escorted members of the
Union's organizing committee , including Rodarte
and Cormier, around the plant, introduced them to
Plant Manager -Tyree- and -Plant Supervisor Garcia,
and sought an introduction to Walters.2 On Novem-
ber 13 , 1972, the Union filed its petition for
representation in Case 21 -RC-12985 . On November
17, 1972, the Respondent simultaneously discharged
Rodarte and Cormier, allegedly for absenteeism, low
production , and violations of work rules.
In the above circumstances , we find , contrary to
the Administrative Law Judge , that the General
Counsel has established by a preponderance of the
evidence that the Respondent discharged Rodarte
and Cormier because of their organizing activities in
behalf of the Union, in violation of Section 8(a)(3)
and (1) of the Act. In so doing , we reject the
following conclusions of the Administrative Law
Judge : ( 1) the Respondent was insufficiently aware
of the fact, or extent , of Rodarte 's and Cormier's
if any, known to, or suspected by Respondent to have the most ardent union
adherence ." There is no evidence to support these speculations of the
Administrative Law Judge and we accord them no weight.
2 The Administrative Law Judge speculated that Walters "may or may
not" have met with the organizing committee "and recognized them" on
that date . In an apparent attempt , however, to minimize the importance of
testimony indicating such an encounter , the Administrative Law Judge
rejected , on grounds of hearsay , Walters' account of Tyree's meeting with
the committee . As Tyree's account is clearly a declaration against the
Respondent 's interest , a well-recognized exception to the hearsay evidence
rule, we accord this ruling and rejection no weight.
3 Absent supportive evidence , we accord no weight to the Administrative
Law Judge 's speculation that: "Others than Rodarte and Cormier may have
organizing activities, and (2) the Respondent dis-
charged Rodarte and Cormier for alleged violations
of their conditions of employment. As to (1), we rely
on the following facts: that Rodarte commenced
organizing at the plant; that Cormier assisted in
signing up employees; that Miller introduced Ro-
darte and Cormier, as members of the Union's
organizing committee, to the Respondent's plant
manager and plant supervisor and possibly to
Walters, himself; and to Walters' own record
testimony, not cited by the Administrative Law
Judge, that his awareness of the Union's organizing
campaign led him to conduct group meetings with
his employees, to endeavor to determine the Union's
majority status. In these circumstances, we find
ample evidence to support the conclusion, which we
hereby make, that the Respondent knew or believed
that Rodarte and Cormier were actively engaged in
union organizational activity.3
As to (2), the Administrative Law Judge relies
almost exclusively on two exhibits, described by him
as "reports," on Rodarte's and Corn-tier's job
performance, and in so doing credits Walters and
Foreman McAfee in support of, and discredits
Rodarte and Cormier in denial of, the complaints
therein contained.4 In so doing, he totally ignored the
testimony of employee Andrew Reimherr, the Res-
pondent's only witness besides Walters and McAfee
and its only employee witness, who gave uncontro-
verted testimony, on the basis of his own observa-
tions, that Rodarte's work, which had slowed down
for about a month after the commencement of the
Union's organizing campaign and picked up and
returned to normal during the final 2 weeks of his
employment, so that by the time of his discharge he
was again "working at his capability." 5 The com-
plaints, highly generalized, and with little specifica-
tion, concern Rodarte's and Cormier's alleged
absenteeism, low production, and work rule infrac-
tions.
Unlike the Administrative Law Judge, we accord
little weight to the exhibits as indications of the
Respondent's motivation for discharging Rodarte
and Cormier. Most of the shortcomings asserted in
the reports occurred after the organizing campaign
began, and the reduction to writing of these asserted
been much more active in behalf of the Union in the mind of Respondent."
4 The extraordinary extent of the Administrative Law Judge's reliance on
the exhibits per se is demonstrated by the following statement from his
Decision:
Much more than thousands of words of testimony , these exhibits depict
at least some of the problems which Respondent had with Rodarte and
Cormier which culminated in their terminations.
5 In speculating that "With 32 card signers, one might expect at least a
handful of co-employees who would testify as to his [Rodarte's] good
qualities, if any, as a worker," and that only one other witness, whom he
discredited, appeared in his behalf, the Administrative Law Judge entirely
ignores Reimherr's above-described testimony , which was offered by
Respondent's witness.
544 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons for the discharges does not insulate them
from scrutiny as to whether they were pretexts, even
though the Administrative Law Judge , on the basis
of credibility resolutions , has found that these
shortcomings existed . In this regard , we have but to
recall the following above-described probative facts:
Rodarte and Cormier were raised in pay and
complimented during a period which also covered
several of the complaints contained in the job
reports ; Rodarte had been promoted to leadman;
Respondent continued to tolerate their prior alleged-
ly delinquent job performances for 4 or 5 months
prior to their discharges ; according to Reimherr's
undisputed testimony , Rodarte's production during
the final 2 weeks of his employment was quite
normal ; and Cormier shortly prior to discharge was
transferred to the motor home building to improve
the works there because of his good performance on
the camper work he had been doing.
In these circumstances , we find that Respondent's
asserted reasons for the discharges were pretextual,
and that Respondent illegally discharged Rodarte
and Cormier because of their organizing activities in
behalf of the Union , in violation of Section 8(a)(3)
and (1) of the Act.
4. We find that the Respondent , through its
aforementioned conduct in anticipatorily threatening
to refuse to bargain with the Union with regard to a
union-security clause , in violation of Section 8(a)(1),
also violated Section 8(a)(5) of the Act, by demon-
strating the futility of bargaining meaningfully with
the Union , and we further find , in the circumstances
noted below, that a Gissel types bargaining order is
necessary to remedy the violation . These circum-
stances include the following: By October 26, 1972,
the Union had secured authorization cards represent-
ing more than 75 percent of the Respondent's
employees in an appropriate unit; on November 17,
1972, the Petitioner filed its instant petition in Case
21-RC-12985 ; on October 30, 1972 , and January 3
and 9 , 1973, the Respondent circulated among the
employees antiunion statements , including the Octo-
ber 30 letter hereinabove found violative of Section
8(a)(1) of the Act ; and on January 12 , 1973, an
election was held, which the Union lost by a margin
of 26 votes to 3 votes , with 4 ballots challenged.
In Gissel, the United States Supreme Court stated
that "In fashioning a remedy in the exercise of its
discretion . . . the Board can properly take into
consideration the extensiveness of the employer's
unfair labor practices in terms of their past effect on
election conditions and the likelihood of their
recurrence in the future." In the instant circum-
stances , we conclude that the extent and seriousness
of both the 8(a)(1) violations and the 8(a)(3)
discharges committed by the Respondent in its effort
to demonstrate to its employees the futility of any
further adherence to the Union not only affected the
last election, but also destroyed the atmosphere in
which a fair election can be held in the future, and
that the effect of this unlawful conduct cannot be
erased by just a cease-and-desist order . The Supreme
Court did not make it a mandatory requirement that
there is no possibility of ensuring a fair election by
traditional remedies , but stated that if such possibili-
ty is slight , and if the employee sentiment , would be
more reliably indicated by the cards than by an
election , then such an order should issue. We
conclude that this rule clearly applies in the instant
case . Accordingly , we find that the signed authoriza-
tion cards submitted in this proceeding constituted
better expression of employee sentiment than an
election would be, and we shall therefore order that
the election in Case 21-RC-12985 be set aside and
that the Respondent be required to recognize and
bargain with the Union as the representative of the
Respondent 's employees in the appropriate unit.
The Effects of the Unfair Labor Practices
Upon Commerce
The activities of Respondent hereinabove found
violative of the Act, and occurring in connection
with the operations described in section I of the
Administrative Law Judge's Decision , have a close,
intimate , and substantial relationship to trade,
traffic, and commerce between the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce. They are urifair labor practices within the
meaning of Sections 8(a)(1), (3), and (5) and 2(6) and
(7) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning
of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By anticipatorily refusing, in its preelection
letters to the employees, meaningfully to consider the
subject of a union-shop provision in subsequent
future bargaining negotiations with the Union, and
by stating that , in any resulting strike to enforce such
a provision, the strikers would be permanently
replaced, the Respondent thereby expressed to them
the futility of union support and the potential
6 N.L.R. B. v. Gisse/ Packing Co., Inc., 395 U.S. 575, 614 (1969).
FOUR WINDS INDUSTRIES , INC. 545
resultant harm and threatened and coerced employ-
ees in the exercise of their Section 7 rights, in
violation of Section 8 (a)(1) of the Act.
4. By discharging , and failing to reinstate, em-
ployees Joe Rodarte and Jay Cormier because they
engaged in union or other protected concerted
activities for the purposes of collective bargaining or
other mutual aid or protection , the Respondent
violated Section 8(a)(3) and (1) of the Act.
5. All production and maintenance employees,
including shipping and receiving employees, lead-
men, and truckdrivers employed by the Respondent
at its facilities located at 1918 East Occidental, Santa
Ana, California , excluding office clerical employees,
professional employees , guards , and supervisors as
defined in the Act, constitute a unit appropriate for
collective bargaining within the meaning of Section
9(b) of the Act.
6. At all times since October 26, 1972, the Union
has been the exclusive bargaining representative of
the employees in the aforesaid appropriate unit
within the meaning of Section 9 (e) of the Act.
7. By refusing to recognize and bargain collec-
tively with the Union as the exclusive representative
of employees in the aforesaid appropriate unit, the
Respondent , since October 26 , 1972, has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8 (a)(5) and (1) of the Act.
8. Such unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair
labor practices , we shall order that it cease and desist
therefrom , and take certain affirmative action to
effectuate the policies of the Act. We shall order that
Respondent offer Joe Rodarte and Jay Cormier,
immediate and full reinstatement to their former jobs
or, if those jobs are not available , to substantially
equivalent positions , without prejudice to their
seniority and other benefits and privileges , and make
them whole for any loss of earnings they may have
suffered by reason of their discharge by paying to
them sums of money equal to those which they
would have earned in wages from the date they were
terminated to the date of reinstatement , less their net
earnings during such period, backpay to be comput-
ed in the manner set forth in F. W.' Woolworth
Company, 90 NLRB 289, with interest thereon at 6
percent calculated according to the formula set forth
in Isis Plumbing & Heating Co., 138 NLRB 716. We
shall further order that Respondent preserve and
upon request , make available to the Board or its
agents , all pertinent records and data necessary in
analyzing and determining whatever backpay may be
due.
Inasmuch as Respondent's violations of Section
8(a)(1) and (3) of the !Act have undermined I the
Union's majority and caused 'an election to be a less
reliable guide to employee free choice than the
signed authorization cards by which they designated
the Union to represent them , and because Respon-
dent in failing to recognize and bargain with the
Union while engaging in such unfair labor practices
violated Section 8(a)(5) and (1) of the Act, we shall
further order that as an appropriate remedy Respon-
dent be required to recognize and to bargain with the
Union as well as to remedy the other unfair labor
practices found . See Federal Prescription Service Inc.,
and Drivex Co., 203 NLRB No. 145.
We shall further order that Respondent post
appropriate notices.
Upon the foregoing findings of fact , conclusions of
law, and the entire record in this case , and pursuant
to Section 10(c) of the Act , we hereby issue the
following:
ORDER
Respondent , Four Winds Industries , Inc., Santa
Ana, California, its officers , agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging employees or otherwise discrimi-
nating in any manner with respect to their tenure of
employment, or any term or condition of employ-
ment, because they engaged in concerted activity or
activity on behalf of Orange County District Council
of Carpenters , affiliated with The United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO, or any other labor organization.
(b) Failing and refusing to bargain collectively in
good faith with Orange County District Council of
Carpenters, affiliated with the United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, as
the exclusive bargaining representative of all its
employees constituting the unit herein found to be
appropriate for the purpose of collective bargaining.
(c) Expressing to the employees , by preelection
propaganda or otherwise , the futility of their union
support, anticipatory refusal meaningfully to consid-
er mandatory subjects of bargaining such as a union-
shop provision , and threats to discharge or perma-
nently replace strikers, in a manner violative of
Section 8(a)(1).
(d) In any other manner interfering with , restrain-
ing, or coercing employees in the exercise of their
right to self-organization, to form labor organiza-
tions , to join or assist Orange County District
Council of Carpenters , affiliated with the United
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their
own choosing, and to, engage in other concerted
activities for the purpose of collective; bargaining or
other mutual aid b"r protection as guaranteed in
Section 7 of the Act, or to refrain from any and all
such activities, except to the extent that such right
may be affected by an agreement requiring member-
ship in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the
Act as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Offer to Joe Rodarte and Jay Cormier immedi-
ate and full reinstatement to their jobs or, if such jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make them whole for loss of
earnings in the manner set forth in the section herein
entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or any of its agents, all records necessary
to analyze the amount of backpay due Rodarte and
Cormier under the terms hereof.
(c) Upon request, recognize and bargain with the
above-named Union as the exclusive representative
of all the employees in the bargaining unit described
above and, if an understanding is reached, upon
request embody such understanding in a signed
agreement.
(d) Post at its plant in Santa Ana, California, copies
of the attached notice marked "Appendix. " 7 Copies
of said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by
Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the election conducted
on January 12, 1973, in Case 21-RC-12985 be, and it
hereby is, set aside and that the petition for
certification of representative in said case be, and it
hereby is, dismissed, and that the allegations of the
complaint not hereinabove found to be supported by
the evidence be, and they hereby are, dismissed.
CHAIRMAN MILLER, dissenting:
I do not agree with my colleagues' findings that
Respondent's statements to its employees violated
Section 8(a)(1) of the Act,8 and that the discharge of
Rodarte and Cormier was moved by antiunion
considerations, rather than by the deficiencies in
their work performance which the credited evidence
depicts. I would therefore adopt the conclusions of
the Administrative Law Judge below dismissing the
alleged violations of Section 8(a)(1) and (3) in Coto
and would affirm his further judgment that there is
therefore no predicate for the issuance of a bargain-
ing order under the standards set out in the Gissel
Packing case, supra, footnote 6.
7 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
8 See my opinion in Tommy's Spanish Foods, Inc., 187 NLRB 235, 237,
and the adoption by the Ninth Circuit Court of Appeals of the rationale
I there explicated in rejecting a violation finding predicated on statements
similar to those Respondent had made . N.L.R.B. v. Tommy's Spanish Foods,
Inc., 463 F.2d 116 (C.A. 9, 1972).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization To form,
join, or help unions To bargain collectively
through representatives of their own choos-
ing To act together for collective bargaining
or other mutual aid or protection To refrain
from any or all these things.
WE WILL NOT express to our employees, by
means of preelection propaganda or otherwise,
the futility of their union support, by anticipation
refusal to meaningfully consider mandatory
subjects of bargaining, such as a union-shop
provision and threats to discharge or permanently
replace strikers.
WE WILL NOT discriminate against our employ-
ees by discharging them in order to discourage
membership in Orange County District Council
of Carpenters, affiliated with the United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO, or any other union.
WE WILL NOT discharge or otherwise discrimi-
nate in any manner with respect to our employees
tenure of employment, or any term or condition
FOUR WINDS INDUSTRIES, INC. 547
of employment because they engaged in concert-
ed activity.
WE WILL reinstate Joe Rodarte and Jay
Cormier with backpay.
WE WILL bargain collectively with Orange
County District Council of Carpenters, affiliated
with the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, as the exclusive
collective-bargaining representative of our em-
ployees in the following appropriate unit:
All production and maintenance employees,
including shipping and receiving employees,
leadmen, and truckdrivers employed by
Four Winds Industries, Inc., at its facilities
located at 1918 East Occidental, Santa Ana,
California, excluding office clerical employ-
ees, professional employees, guards, and
supervisors as defined in the Act.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent, a corporation, manufactures and sells
recreational vehicles and has a plant in Santa Ana,
California. In its normal business operations, it annually
sells and ships goods, products, and services valued in
excess of $50,000 directly to customers located outside
California. At all material times, it has been an employer
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all material times , the Union has been a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
FOUR WINDS
INDUSTRIES, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, Room
600, 849 South Broadway, Los Angeles, California
90014, Telephone 213-688-5254.
Decision
STATEMENT OF THE CASE
E. DON WILSON, Administrative Law Judge: Pursuant to
due notice, a hearing in this case was held before me on
April 23, 24, and 25, 1973, in Anaheim, California. A
supplemental decision and order directing hearing and
order consolidating cases and notice of hearing was issued
by the General Counsel of the National Labor Relations
Board, herein the Board, on March 9, 1973, upon charges
filed by Orange County District Council of Carpenters,
affiliated with the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, herein the Union, on
November 24, 1972, and January 26, 1973, against Four
Winds Industries, Inc., herein Respondent. The parties,
other than the Union which entered no appearance, fully
participated in the hearing. Briefs were received July 9, and
have been fully considered.
I Hereinafter all dates refer to 1972 unless otherwise stated.
2 Or October 30.
3 Numbers varied.
A. The Issues
The issues include whether Respondent (1) has unlawful-
ly refused to recognize and bargain with the Union since
about October, 1972; 1 (2) on or about November 17, did
Respondent, in violation of Section 8(a)(3) and (1) of the
Act, discharge Joe Rodarte and Jay Cormier and since
then has it unlawfully failed and refused to reinstate them;
(3) through its agent, Thomas E. McAfee, did Respondent
about October 30 threaten employees with plant closure if
they continued to support the Union; (4) did Respondent,
through its president, Lee Walters, about October 272
engage in surveillance of its employees' union or other
protected concerted activities; (5) in October and in
January 1973, did Respondent through Walters distribute
literature to its employees threatening a refusal to bargain
with the Union in good faith and threatening loss of
employment to employees who did not refrain from union
activities?
B. Background
At material times , Respondent had about 40 employees .3
Before September, its camper and mobile home manufac-
turing operations were in the same building. About that
time, Respondent opened a new building for its mobile
home operations. Various employees, including Rodarte
and Thomas Granneman,4 were then assigned to such
building.
About October 9, Rodarte went to the union hall where
he conversed with Union Representative William K.
Miller. Rodarte received blank union authorization cards
from Miller. Rodarte and other employees began distribut-
ing such cards during breaks outside Respondent's plant.
Signed cards were returned to Miller either through the
mail or at a union "meeting" at a restaurant on October
23 .5 Although about 32 signed cards were allegedly given
to or previously mailed to Miller at this meeting, 24 are in
He testified . His demeanor and testimony impressed me most
unfavorably.
5 In addition to Rodarte, about six other employees were present.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence as signed on or before that date. Respondent had
47 employees as of October 24.
Miller visited Respondent's plant on October 24, met
with Walters, and told him the Union had authorization
cards signed by a majority of Respondent's employees,
Miller having introduced himself as an International
representative of the Union. Miller requested recognition
as the employees ' bargaining agent . Walters replied he then
had important business in Los Angeles and asked Miller to
set up an appointment with him for October 26.
On October 26, Miller sent Respondent a letter again
asking immediate recognition "for the purposes. of negoti-
ating an agreement for wages, hours, and working
conditions." The letter, signed by Miller, stated the
Union's availability to meet with Respondent at a mutually
agreeable time and place to negotiate a contract. Contrary
to Respondent, I find this was "a clear and unequivocal
demand to bargain," even if polite.
The October 26 meeting with Walters was cancelled and
a meeting with Respondent's counsel , Mr. Nagel, was set
up for October 27. Miller and Nagel met at the latter's
office on this date. Nagel said Respondent would not
recognize the Union which should pursue Board processes.
It is plain that at least as of this date forward,
Respondent made it plain it did not want a union in its
plant. This is no indication of a plan or program to engage
in unfair labor practices.
C. Alleged Surveillance by Walters on October 30
Although the consolidated amended complaints alleges
Walters engaged in surveillance on October 27, it appears
clear that it was an incident on October 30 involving
Walters and Miller in the vicinity of two or three
employees that the complaint refers to. Rodarte testified
that on October 30, Miller was having a union meeting on
what I find was Respondent's property.7 According to
Rodarte, Cormier, Granneman, Little, Villa, Galloway,
and he were meeting with Miller at such time and place. As
the meeting was breaking up, Rodarte testified he was
standing there when Walters walked up and said "It looks
like everybody is gone , I wanted to meet some of these
gdfys."s Rodarte remembered Walters saying nothing else.
He then testified only he, Cormier, and Miller were present
when Walters arrived. Cormier testified that when he and
Miller and Rodarte were present at Cormier's pickup truck
at the end of lunch break on October 30, Walters
approached and said "He wanted to see who these people
were that were at the meeting with Mr. Miller from the
Union." That was all he said, according to Cormier. No
one else said anything, was his testimony. Miller testified
that on this occasion, when he was with Rodarte and
Cormier, Walters came "out" and said he always wanted to
meet this "in-plant" organizing committee. Miller at first
testified only Rodarte and Cormier were then present. He
subsequently added Granneman. He later testified he
wasn't sure about Granneman.
Walters admitted approaching the pickup truck on
October 30. His version of what he said, however, is vastly
different than that given by the three witnesses for General
Counsel. He testified he told Miller he did not want him on
Respondent's property and asked Miller to leave. I credit
his version of what he said. His demeanor impressed me
very favorably. Obviously he knew Rodarte and Cormier
(and perhaps Granneman) and would not have to say he
was glad to meet or see them. If he saw them, as he
probably did, they probably saw him and knew he saw
them with Miller. There was no occasion for him to say
what they attributed to him. I find he did not.
Walters had an unfettered right to order Miller off
Respondent's property. Miller was an uninvited trespasser.
Indeed, assuming arguendo that Walters saw a union
meeting being held on Respondent's property,9 he had an
absolute right to look at it, talk to those employees of his
attending it, and tell them he had always wanted to meet
them.10 Certainly, it was not up to Miller or the employees
to choose Respondent's plant as a union meeting place. They
certainly were inviting the owner to look at them or talk to
them even about the Union or their other activities on his
property. The union organizers had found a meeting place
other than the plant of Respondent earlier. They did not
have to select Respondent's property as a place to have a
meeting on October 30. Miller had no right to be present,
absent invitation, and the employees' activities thereon
were lawfully subject to observation or comment or inquiry
by Walters, absent threat or unlawful promise by him. It is
most natural for an employer to watch over his employees
on his premises and to have an interest in their activities.11
Walters' activities in this instance, in their worst light, were
without threat or coercion and nonviolative of the Act.
Indeed if General Counsel's version of the conversation
were to be accepted, the pleasant and innocuous remarks
of Walters, if replied to by the employees, might have
culminated in a contract.
D. Alleged Threat to Bargain in Bad Faith and
Threats of Job Loss, and McAfee's Alleged Threat
to Employees of Plant Closure if Employees
Continued to Support the Union
The above matters are alleged in separate paragraphs in
the complaint, but for convenience's sake they are here
considered together.
On October 30, January 3, 1973 and January 9, 1973,
Respondent distributed antiunion and pro-Respondent
preelection literature to its employees, the election being
held on January 12, 1973, the Union having filed a petition
on November 13.12
The literature distributed by Respondent is comparative-
ly voluminous. Although requested, General Counsel failed
6 Hereinafter , complaint . property was an "easement." If it were Respondent's easement, so what?
7 1 credit Walters ' testimony that it was Respondent's property. Others 10 No threat or promise , expressed or implied.
who testified were not in a position to know. 11 I cannot find "surveillance" just because an employer observes his
8 This was Walters' property and his employees were meeting thereon. employees on his property.
9 No factual basis was even offered to support Miller's testimony that the 12 The Union lost 26-3 with 4 votes challenged.
FOUR WINDS INDUSTRIES, INC. 549
at the hearing to delineate those portions which allegedly
violated the Act.13 Parts have been set forth in General
Counsel's brief and I direct my attention to them along
with whatever McAfee said. This case is entirely different
from Tommy's Spanish Foods, Inc., supra.
Respondent 's October 30 letter says, in part, that this
Union never signs a contract, to Respondent's knowledge,
without a union-security clause . In this letter, Respondent
states it is opposed to such clause and does not "believe we
have any moral right to force any of our people to join any
union to keep their jobs." 14 Respondent forecast that the
Union would inevitably make unreasonable demands
which could be enforced only by a strike15 and "If there is
a strike we are not going to close down our operations for even
one day. "16 (Emphasis supplied.) The letter continues with
reference to Respondent's right to hire permanent replace-
ments, etc.
On January 3, Respondent distributed a lengthy pam-
phlet stating, among other things, that once it had
"negotiated in good faith" and found the Union's demands
non-acceptable, the Union could only strike and "we're not
going to close down our operations for even one single
day." Strikers would be permanently replaced. It plainly
told the employees it would never sign a contract which
would make it noncompetitive.
Again on January 9, 1973, Respondent distributed
another rather lengthy document. It was first stated
Respondent had the absolute right to refuse to grant any
union demand Respondent did not believe was in its best
interests . Then, again, it was stated the Union would insist
on a union shop if it won and Respondent did not believe
it had the moral right to force any employee into the
Union.17 Then it was forecast that if no agreement was
reached, after Respondent bargained in good faith, there
would be a strike18 and "we will not close our plant for
even one single day." Strikers would be permanently
replaced. Respondent said it had the right to decide what
was good for it and the Union could not force Respondent
to sign a contract Respondent did not agree to.19
No matter the way in which I have studied the above
three documents, and I have studied them every way I
know how, I find not a trace of a violation. I find no
unlawful threat or promise. I find an affirmance that any
bargaining would be in good faith. There was no
anticipatory refusal to bargain. I find a statement that
economic strikers would be permanently replaced. Such
was obviously lawful. An employer, this Respondent, made
the businesslike statement that after good faith bargaining
it would not agree to a contract which would make it
noncompetitive.20 In making a statement that it had no
"moral" right to agree to a union shop contract, it did not
deny that standards of morality can be learned at the
bargaining table. It said it would bargain in good faith.
"Moral," of course, usually relates to concepts of right and
wrong . It can also apply to "principles, standards or
habits." "Flexible morality" is not unheard of. Certainly,
the Respondent could tell its employees a union could do
them no good. Such was its lawful opinion. Nothing in the
distributions of letters or documents by Respondent may
be found to be other than protected free speech. Respon-
dent never said it would not "bargain" about union
security. It merely affirmed its "moral" opposition to such
a contractual provision. The history of bargaining under
the Act demonstrates that both unions and management
have accommodated their ideas of "morality" to the
realities of facts as they presented themselves for solutions
in the course of good faith bargaining. We are here not
dealing with the Natural Law, nor the Absolutes of
Unchanging Right and Wrong, nor Eternal Verities. We
are dealing with "good faith" bargaining within the
meaning of the Act. In no way did Respondent say it
would do anything but bargain in good faith. To be
"morally" opposed to union security does not mean that an
employer believes he will be "sinful" if he agrees to it after
"bargaining in good faith." This Respondent was, not like
the one in Tommy's Spanish Foods, Inc., supra, who
anticipatorily refused to bargain with the Union on union
security and announced that unfair labor practice strikers
would be permanently replaced. To be "morally" opposed
to a union-security agreement is no worse than to be
"morally" opposed to raising wages or granting an extra
holiday, or having stores or movies open on Sundays, etc.
This Respondent emphasized its willingness and readiness
to bargain in good faith should the employees select the
Union as their representative. Who knows? After such
bargaining, it might have signed a contract with a union-
security clause even though still "morally" opposed to such
a clause . The Act does not prohibit "moral" opposition to
a contractual clause any more than it does economic or
intellectual opposition so long as such opposition does not
negate or frustrate "good faith" bargaining. I find General
Counsel has failed to prove by a preponderance of the
probative and substantial evidence that this Respondent
even indicated it would not bargain in good faith about any
bargainable issue21 including union security.
We come to the alleged unlawful threat of Respondent's
shop supervisor, Thomas E. McAfee, on October 30, that
Respondent would close the plant if its employees
continued supporting the Union.
In substance, such is alleged to be the "fact" in
paragraph 12 of the complaint. Rodarte was offered as
General Counsel's witness in this regard. Rodarte testified
that at the coffee break on October 30, McAfee said,
"something to the effect that if this continues Lee Walters is
pretty stubborn and he will shut the plant down before he
will let a union in." He testified he was "quoting" McAfee
as to something the latter allegedly said about 6 months
earlier. Rodarte testified McAfee gave no indication of
what he meant by "if this continues." Since the rest of the
"quoted" statement is so conditioned, I cannot interpret the
13 He referred to Tommy's Spanish Foods, Inc., 187 NLRB 235. He
conveniently ignored it in his brief.
14 Clearly a statement of "opinion" and "belief."
11 Again, "opinion."
19 Compare with alleged statement of McAfee.
17 Opinion.
18 Opinion.
19 So true.
20 And perhaps put it out of business?
21 "Moral" opposition is not the same as an expressed determination not
to agree to a union-security clause . A statement of "moral" opposition is
merely a statement of opinion or belief . Respondent did not in any manner
state it had a "closed mind" on union security.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement as a whole. One can speculate at will as to what
"this" referred to. It could mean protected union activity
by employees in which case General Counsel would have
proved the allegation of paragraph 12 as an unlawful
threat. "This" could mean repeated threats by union
adherents to destroy plant property or do violence to
employees who did not support the Union, or anything
concerning activities prohibited by the Act. Then the
statement would not violate the Act. I cannot and should
not guess at what McAfee meant by "this." 22
I have also considered that McAfee's alleged statement
was made right after Walters told everyone he would not
close down the plant for a single day, even if there were a
strike.
I find McAfee was honestly confused and lacking in
memory as to just what, if anything, he may have said to
Rodarte on this occasion.
I find General Counsel has failed to establish by a
preponderance of the probative and substantial evidence
that Respondent violated the Act, as alleged in paragraph
12 of the complaint. To find a violation would require
impermissible speculation.
E. The Alleged Unlawful Discharges of Rodarte and
Cormier
Rodarte, it appears, began the union organizing at
Respondent's plant. There is insufficient probative or
substantial evidence that Respondent knew this or the
extent of his union activities. Cormier testified he handed
out authorization "cards." He then testified he handed out
"one," that he could remember. There is insufficient
probative and substantial evidence that Respondent knew
this. Undenied is testimony that on November 1, Miller
introduced Rodarte and Cormier and some other employ-
ees to Respondent's representatives, including Plant
Manager Tyree and Plant Supervisor Garcia, as the union
organizing committee. Walters may or may not have had
so met and recognized them on that date. Neither Garcia
nor Tyree testified and I do not accept Walters' hearsay
version of Tyree's encounter with Miller and the employees
as competent evidence.23
General Counsel proved 32 employees had signed
authorization cards by October 24 since October 9. I figure
this was in excess of 75 percent of Respondent's employ-
ees.
Respondent plainly did not want a union to represent its
employees. This was its right. I find not an iota of credible
and substantial evidence that it, in any way, resented any
union activities of Rodarte or Cormier. There is no
substantial evidence that either was ever warned to refrain
from engaging in any activities protected by the Act.
Each of them was granted wage increases during the
course of his employment. This may or may not have been
true of every other employee. So far as the record is
concerned, every employee may have been complimented
on his job performance regularly, including other employ-
ees, if any, known to, or suspected by Respondent to have
the most ardent union adherence. Aside from the fact that
there is no substantial evidence that Cormier engaged in
much more than a minimal of union activity, there is no
substantial evidence that Respondent was aware of any
more than the fact that each was a member of the Union's
"in plant committee," 24 as a result of Miller's introduc-
tions of November 1. This is considered by me in light of
the accepted evidence that Miller, a week earlier, had told
Walters that the Union represented at least a majority of
Respondent's employees.25 Others than Rodarte and
Cormier may have been much more active in behalf of the
Union in the mind of Respondent. Indeed, unless one finds
as ipse dixit that the very discharges of Rodarte and
Cormier prove not only a belief by Respondent that they
were prime union leaders but also that Respondent was
unlawfully motivated as to them or other union supporters,
General Counsel has failed to establish a prima facia case
as to- their discharges. That their discharges occurred not
long after the Union filed its RC petition is not ignored by
me. Timing is most relevant. Most irrelevant is post hoc
ergo propter hoc. I find the so-called timing here has naught
to do with the legality of the discharges. They must not be
looked at only in the framework of union activity in the
plant of a Respondent who preferred that his employees
not be represented by a union. Also must be considered
Respondent's entirely lawful motive for discharging them
because their work had deteriorated and not improved in
spite of warnings that failure to shape up would result in
discipline.
As to "timing," I find Respondent much earlier would
have discharged Rodarte and Cormier, but for its counsel's
sage advice that it would be most dangerous to discharge
employees in the midst of the Union's campaign. Such
advice finally was not followed, wisely or not, because
Respondent no longer could tolerate a continuation of
their bad work habits.
There is much conflicting testimony in the record as to
whether each of these employees did poor work and was
warned of discharge for such reasons. Much more reliable
than any such testimony are Respondent's Exhibits 3 and
4, 3 being a report on Rodarte and 4 being a report on
Cormier.
Respondent's Exhibit 3 shows Rodarte was "again
warned" by McAfee about his attendance, on September
17, he having been late four times in the preceding 4 weeks
and having missed 20 hours' work in the last 4-week
period. It further shows he was "warned" again on October
10 by McAfee because of continued poor attendance. He
was then "very argumentative." He was told the warning
was serious. McAfee recommended to Walters that
Rodarte be replaced if he did not improve during the next
4 weeks. On October 31, with or without justification,
Walters warned Rodarte about violating a "no smoking"
rule. Walters noted that Rodarte seemed "to be challenging
dismissal ." It was noted by Walters that other workers
feared a layoff because of poor production in Rodarte's
setup department. On November 14, Walters noted that
McAfee recommended Rodarte's discharge. It was noted
that Rodarte had continued to ignore warnings and other
22 Nor should anyone else. 24 Number unknown so far as this record is concerned.
22 No reason was advanced for the absence of Tyree and Garcia as 25 75 percent or more?
witnesses.
FOUR WINDS INDUSTRIES, INC.
workers were inquiring why his poor work standard was
tolerated.26 His replacement was recommended to avoid
layoff of other employees. On November 17, he was
terminated for poor attendance,27 lack of interest in his
job, and jeopardizing the jobs of others. With 32 card
signers , one might expect at least a handful of coemployees
who would testify as to his good qualities, if any, as a
worker. None but. Granneman was produced and his
demeanor impressed me most unfavorably and I found his
testimony, in general , to be unworthy of credit.
Respondent's Exhibit 4 deals with the work record of
Cormier. I find no need to review it in detail. It differs not
substantially from Respondent's Exhibit 3 in that it details
failings of Cormier, warnings to him, etc., culminating with
his termination on November 17 because of "lack of
performance."
One could, as I did, when the above exhibits were first
produced, "suspect" that they were prepared solely for this
trial. I find my "suspicion" was baseless as would be true
of a similar suspicion by anyone else. Rodarte and Cormier
denied that the facts set forth in Respondent's Exhibits 3
and 4 were true, but I do not credit their denials. Walters
and McAfee credibly testified as to the truth of the matters
set forth in Respondent's 3 and 4.
Crediting Walters, as I do, I find Respondent's Exhibits
3 and 4 were "score" sheets or "report" sheets such as
Respondent maintained for each employee. It was compa-
ny policy to prepare such sheets for each employee 28 The
exhibits were company records prepared as the events
occurred. Notations on the exhibits were prepared on or
about the dates the events narrated thereon occurred. They
were prepared and maintained in the regular course of
business as events occurred and not for the purposes of the
trial. There is no credible evidence that these exhibits were
fabricated in any manner. To the extent that Rodarte or
Cormier dispute the accuracy of any statement contained
in either exhibits, I do not credit their testimony. I credit
Walters' testimony that the matters narrated in the exhibits
accurately reflect events concerning Rodarte or Cormier
on or about the dates noted in the exhibits. Much more
than thousands of words of testimony, these exhibits depict
at least some of the problems which Respondent had with
Rodarte and Cormier which culminated in their termina-
tions. I find they were accurate records made contempora-
551
neously with the events narrated therein. I give no credit at
all to the testimony of Rodarte and Cormier that such
events never occurred. I find they deliberately misstated
the facts. I
I find Respondent has established that it discharged
Rodarte and Cormier for the reasons set forth in
Respondent's Exhibits 3 and 4. To the contrary, I find
General Counsel has failed to establish by a preponder-
ance of the probative and substantial evidence that either
Rodarte or Cormier was discharged by Respondent
because either engaged in any activity protected by the
Act.
F. Bargaining Order
Plainly, the record establishes no violation of Section
8(a)(5) of the Act and no remedy contemplated by Gissel
Packing Co., 395 U.S. 575 (1969), is called for.
Concluding Findings
I conclude on the basis of the entire record that General
Counsel has failed to establish any violation of the Act by
Respondent by a preponderance of the probative and
substantial evidence and that the consolidated complaint
should be dismissed in its entirety. The record establishes
that the Union's objections are without merit and should
be dismissed.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following conclusions of
law:
1. At all material times Respondent has been an
employer engaged in commerce within the meaning of the
Act.
2. The Union is a labor organization within the
meaning of the Act.
3. The record does not establish that Respondent has
engaged in the unfair labor practices or any of them
alleged in the consolidated complaint and it establishes no
merit to any of the objections to the election presented to
me for consideration.
[Recommended Order omitted from publication.]
26 Shop production was dependent upon his department's production. 28 Such was not successfully disputed by General Counsel.
21 His timecards were made available to General Counsel.