Mobile Home Estates, Inc

National Labor Relations Board - Board Decisions

Jan 26, 1989

292 N.L.R.B. 691 (N.L.R.B. 1989)

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