National Mobile Development Co.,

National Labor Relations Board - Board Decisions

Dec 29, 1970

187 N.L.R.B. 501 (N.L.R.B. 1970)

NATIONAL MOBILE DEVELOPMENT CO.
National Mobile Development Company, Tri Par
Homes Division and Michigan State Building and
Construction Trades Council , AFL-CIO. Case
7-CA-7914
December 29, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 22, 1970, Trial Examiner Melvin J.
Welles issued his Decision in the above-entitled
proceeding,) finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that the complaint be
dismissed as to them. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision 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
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, National Mobile Homes Develop-
ment Company, Tri Par Homes Division, Perry,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.2
' The Respondent's name appears as corrected in the Trial Examiner's
erratum to his Decision
2 In footnote 5 of the Trial Examiner's Decision substitute "20" for "10"
days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
501
MELVIN J. WELLES, Trial Examiner: This case, initiated
by a charge filed on April 30, 1970, and a complaint issued
June 25, 1970, was heard at Lansing, Michigan, on August
4, 1970. The complaint alleges that Respondent violated
Section 8(a)(1) and (3) of the Act. Respondent's answer
denied that it engaged in any of the unfair labor practices
alleged. Counsel for the General Counsel and for the
Respondent argued briefly before me. Neither filed a brief.
Upon the entire record in the case, including my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein Respondent, a Delaware
corporation, has been engaging in the manufacture, sale,
and distribution of modular homes and related products at
its plant at Perry, Michigan, the only facility involved in
this proceeding.
During the calendar year 1969, Respondent both received
and shipped goods valued in excess of $50,000 from and to
points outside the State of Michigan. Upon these admitted
facts, I find that Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Michigan State Building and Construction Trades
Council, AFL-CIO, herein called the Union, is, as
Respondent admits, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Request for Recognition and the Layoff
On April 15 , 1970, Richard Watts, an employee of
Respondent, met with Ralph Krimmel , an international
representative of the Carpenters Union , and several other
representatives of various unions, to discuss getting a union
into Respondent 's plant at Perry, Michigan . At a subse-
quent meeting on April 22, attended by many of
Respondent 's employees , Krimmel received 15 authoriza-
tion cards designating the Union as bargaining representa-
tive . Employee White had signed such a card at the first
meeting, on April 15.1
The next day, April 23 , about 3 : 15 p.m., Knmmel, with
two other union officials , Fred Ikle and Neil Van Stelle,
went to Respondent 's plant. They met with Plant Manager
Richard S . Torrey, and told Torrey that the Union had a
majority of his employees signed up and wished to be
recognized for the purpose of collective bargaining . Torrey
replied that he had "no authority to handle matters of this
nature ," that the union representative "would have to talk
with Mr . Dunkel ." At the time the union representatives
i There is no 8(a)(5) allegation in the charge or complaint, and thus no
authentication of these cards was proffered or necessary
187 NLRB No. 67
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were in Respondent 's office , a man in a police uniform was
there , making out an application for employment.
Krimmel, Ikle, and Van Stelle then left the plant, and
went into the city of Perry, where Krimmel placed a
telephone call to Respondent 's President Wilfred O.
Dunkel . After identifying himself , Krimmel requested a
meeting with Dunkel , and responded to Dunkel's "for what
reason," by telling Dunkel the Union represented a
majority of his employees and wanted to be recognized as
exclusive bargaining agent . Dunkel told Krimmel that if the
employees wanted a union , he "would shut the shop down,"
that he "would not deal with the union in any way because
it would jeopardize his other business ." Dunkel told
Krimmel to write him a letter , and he would have the
N.L.R.B. set up an election, but that "if the people vote for
the union, I will shut it [the shop] down." At one point
Dunkel told Krimmel that in about 2 weeks, they were
going to take inventory in the plant, and "if this [the Union ]
was what the people wanted," he "just wouldn't bother to
open it again."
The next afternoon, Friday, April 24, about 3 p.m., Plant
Manager Torrey called the employees into the office and
told them that they would be laid off until further notice
because of financial difficulties and poor workmanship.
Although all employees were laid off effective the following
Monday, April 27, Respondent, either the afternoon of the
23d or the morning of the 24th hired a new employee,
Burshard , who apparently worked doing outside repairs
during the layoff period. Some few employees may have
been recalled during the week of April 27, a larger number
were recalled on May 4, and all the employees were back at
work by May 11.
B. The Alleged Violations of 8(a)(1)
Late in the afternoon of Thursday, April 23, Plant
Manager Torrey visited Mrs. Gertrude Zwolensky, mother-
in-law of Respondent 's employee James William Hendley.
Torrey asked Mrs. Zwolensky if Hendley had anything to
do with trying to get the Union into the plant. She said she
did not know, and Torrey then asked if she would try to
find out, remarking that he knew there were three or four
employees who had signed cards, but he did not know who
they were. Torrey also said that if they tried to get the
Union in, the Company would close the plant down the
next day, Friday.
The following morning , April 24, Torrey called Mrs.
Zwolensky and asked if she had found out whether
Hendley signed a card. He went on to say that those
employees who had not signed a card could come to work
Monday, but those who had signed would be laid off that
day. He added that he thought he would call Mrs.
Zwolensky's daughter, Rebecca Hendley.
About 11 a.m., the same day, Torrey did in fact call
Rebecca Hendley. He asked her whether her husband had
signed a union card . When she replied that she did not
know, Torrey said he would have to lay off the men who
had signed union cards.
That Torrey's threats of plant closing or layoff, and his
attempts to ascertain employee Hendley's union affiliation
or sympathies violated Section 8(a)(1) of the Act requires
no citation of authority , and I so find.
On Monday , April 27, Torrey visited employee Michael
Waters, who was in layoff status. Torrey talked with Waters
about the home Waters had purchased from Respondent,
which Respondent had been helping to finance. Torrey said
that "it would be a rough time trying to finance a home
without a job." Waters asked Torrey whether, if the
employees would go back without the Union, it might help
the employees to get back to work, and Torrey replied that
if he "knew the people would go back to work without the
Union, it may help us to go back to work, to open the
plant." Waters asked where he might be able to reach
Torrey, and Torrey replied that he would be at home
Thursday night, and that Waters should call to let him
know how many people would come back to work without
the Union.
It is entirely possible that Torrey intended his remark that
"it would be a rough time trying to finance a home without
a job," as a veiled threat . Indeed , Waters seems to have
viewed it as such , for Waters immediately thereafter
brought up the subject of the Union. I nevertheless reject
the General Counsel 's contention that this statement was a
threat and find no violation of Section 8(a)(1) therein. Had
Torrey, rather than Waters, injected the subject of the
Union into the discussion, I would find otherwise, but in
the circumstances the General Counsel has not proved by a
preponderance of the evidence that the remark was a
threat. That Waters brought up the union question, and
asked Torrey whether it would help the employees to get
back to work if they could go without the Union, is not,
however , a defense to Torrey 's response that "it may help
us to go back to work , to open the plant," and that Waters
should let him know how many people would come back to
work without the Union. The implicit threat to continue the
layoff unless the employees rejected the Union is no less
violative of Section 8(a)(1) just because it is elicited by the
employee. I find, accordingly, that Respondent violated
Section 8(a)(1) by this statement of Plant Manager Torrey.
On May 8, after all employees had been recalled,
Supervisor Darwin Williams stopped at Waters' work
station and asked whether Waters had heard any more
about the Union. Waters said he had not, and asked
Williams what he thought would happen. Williams replied
that he was not against the Union, but thought it was the
wrong time to try to organize as it was a new plant and the
Union would "probably hurt us more than it would help
us.
Although Williams was admittedly a supervisor at the
time, he was hired only a week or so before the April 24
layoff, he is not alleged to have engaged in any other
conduct violative of the Act, and the context of the full
discussion (Williams did not testify ) convinces me that
Williams' concern was with his own job , that his casual
question was with that in mind , rather than to seek
information for "management ," and, therefore , that the
interrogation was neither calculated to coerce nor would it
reasonably be expected to coerce the employees. I
conclude , therefore, that this allegation of the complaint
should be dismissed.
C The Discriminatory Layoff
The undisputed facts established by the General Counsel
NATIONAL MOBILE DEVELOPMENT CO.
present a clear and convincing affirmative case of a
discriminatory layoff. Thus, not only was the layoff
effected on April 24, the day after the Union requested
recognition, but Respondent's President, Dunkel, respond-
ed to the Union's request the day before that he "would
shut the shop down" if the employees wanted a union. Also
Plant Manager Torrey told Mrs. Zwolensky on April 23
that the plant would shut down the next day if the
employees tried to get the Union in; he told Rebecca
Hendley the morning of April 24 that he would have to lay
off the men who signed union cards, and he told employee
Richard Waters, during the layoff, that it would help the
employees to get back to work if they would go back
without the Union.
Respondent does not dispute that all the above
statements were made, and concedes that the timing of the
layoff was at least of surface significance, but contends
nevertheless that the layoff was economically motivated.
To support this contention, Respondent adduced testimony
from executive Vice President and Secretary Hugh J.
Murphy, which did in fact demonstrate the Company's
tenuous economic position. At a meeting of the Company's
board of directors on April 9, it had been agreed to
"consider" stopping construction work and laying off
nonessential personnel, in view of the Company's "cash
position." The timing of any such shut down was to be left
to the discretion of Murphy and President Dunkel. The
Company was also having some difficulty with inventory,
and storing completed homes which could not be delivered
for one reason or another Murphy specifically testified on
direct examination that the decision to close the plant was
made "to reduce the expenditures for that operation as one
of the means of stopping the decline on cash in the
corporate accounts."
Murphy impressed me as a truthful witness, and I credit
his testimony completely as to the Company's economic
straits. As to his testimony that the decision to close the
plant was motivated by economic considerations, I believe
that Murphy also testified to the truth as he saw it, for
Murphy's concern was with the Company's financial
position, and he had already recommended a shut down as
one possible way of alleviating the situation. Murphy,
however, apparently had little to do with the employees
directly. He was not the recipient of the Union's requests,
he did not personally participate in any threats or
interrogation, and he owned approximately 1 percent of the
Company's stock. President Dunkel, who owned 74 percent
of the stock (the remaining 25 percent was publicly owned)
was obviously the head of the Company in all respects.
Dunkel's own motivation was expressed in unequivocal
terms in response to Krimmel's telephonic request for
recognition. He said he would "shut the shop down." And
Plant Manager Torrey's statements to Gertrude Zwolensky
and Rebecca Hendley to the effect that they would close
the plant the next day if the Union tried to get in, confirms
Dunkel's, and Respondent's, motivation for closing down
at that time. Further proof of Respondent's discriminatory
selection of April 24 for the layoff lies in the hiring of a new
2 Burshard was clearly the applicant in a police uniform seen by
Krimmel on April 23, for Plant Manager Torrey testified that he hired
503
employee, Burshard, on either the afternoon of April 23 or
the morning of April 24.2 A company about to have a 2-
week layoff would scarcely be taking on new help at the
same time. The hiring of a new foreman, Williams, about a
week earlier is also inconsistent with the April 24 shut down
having been impelled by economic considerations.
Undoubtedly, as Murphy testified, "the financial position
of the corporation was of much more importance to us than
the visit by the Union." By this, I take it that had
Respondent been swamped with orders and making money
hand-over-fist, it probably would not have resisted
unionization by laying off its employees. Respondent's
counsel stated as much in oral argument; he said "I am
certain they would be happy to operate if they were making
a profit, union or no union." But the question is not
whether a healthy company would have done the same
thing, but whether the layoff of a sick company's employees
was occasioned by the Union's organizing them and
requesting recognition. As I have already indicated, the
evidence overwhelmingly demonstrates that it was. I find,
accordingly, that Respondent violated Section 8(a)(1) and
(3) of the Act by laying off its employees on April 24,1970.
IV. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, it will be recommended that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the purposes and policies of
the Act.
It having been found that Respondent unlawfully laid off
its employees on April 24, 1970, in violation of Section
8(a)(I) and (3) of the Act, it will be recommended that
Respondent take these employees whole for any loss of
earnings they may have suffered as a result of the
discrimination against them, by payment to them of the
sums of money equal to the amount they would have
earned during the layoff, less net earnings during said
period, to be computed on a quarterly basis in the manner
established by the Board in F. W Woolworth Company, 90
NLRB 289, and shall include the payment of interest at the
rate of 6 percent to be computed in the manner set forth in
the Board in Isis Plumbing & Heating Co, 138 NLRB 716.
Although it is possible that Respondent might have had
to layoff the employees at some other time had it not done
so on April 24, there is no certainty that a subsequent layoff
or plant closing would have occurred. A change in
Respondent's cash position, an increase in orders, or,
indeed, a determination not to shut down even without
such changes, were all possibilities. Since the April 24 layoff
was, as I have found, motivated by the advent of the Union,
the "conjectural eventuality [of a future shutdown] cannot
now be permitted to defeat Respondent's obligation to
remedy its violation of [the employees'] statutory rights."
Interurban Gas Corporation, 149 NLRB 576, 577-578, enfd.
354 F.2d 76 (C.A. 6). I see no reason, therefore, to take that
possibility into account in determining the backpay due
these employees.
In view of the nature and extent of the unfair labor
Burshard on April 23 or 24, and that "he was on the police force at the
time that I hired him "
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices herein found , I shall recommend that Respondent
be placed under a broad order to cease and desist from in
any manner infringing upon the rights guaranteed its
employees by the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. National Mobile Homes Development Company, Tri
Par Homes Division, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Michigan State Building and Construction Trades
Council, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatorily laying off its employees on April
24, 1970, thereby discouraging membership in the above-
named labor organization, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
4. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed by
Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDERS
Upon the basis of the above findings of fact and
conclusions of law, and pursuant to Section 10(c) of the
Act, it is recommended that National Mobile Homes
Development Company, Tri Bar Homes Division, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Laying off its employees, or otherwise discriminating
against employees, in order to discourage membership in or
support of Michigan State Building and Construction
Trades Council, AFL-CIO, or any other labor organiza-
tion.
(b) Threatening employees with discharge, layoff, closing
of the plant, or other reprisals if they joined the Union or
engaged in activities on behalf of the Union.
(c) Seeking to obtain information about its employees'
union sympathies by questioning their relatives.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist Michigan State
Building and Construction Trades Council, 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 mutual aid or protection, or to
refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole each of the employees who were laid off
on April 24, 1970, for any loss of pay they may have
suffered by reason of Respondent's discrimination against
them, in the manner set forth in the section entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to determine the amount of backpay due under
the terms of this Recommended Order.
(c) Post at its plant at Perry, Michigan, copies of the
notice marked "Appendix." 4 Copies of said notice, on
forms provided by the Regional Director for Region 7, after
being duly signed by a duly authorized representative of
Respondent, shall be posted by it 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 Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.5
3 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings conclusions and order, and
all objections thereto shall be deemed waived for all purposes
4 In the event that the Board 's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
5 In the event this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We will not discourage membership in Michigan
State Building and Construction Trades Council,
AFL-CIO, or any other labor organization, by laying
off or discharging employees or otherwise discriminat-
ing in any manner with respect to their tenure of
employment or any term or condition of employment.
We will not threaten to close our plant if our
employees engage in union activities or select a union to
represent them.
We will not threaten our employees with discharge,
layoff, or other reprisals because of their union
activities.
We will not try to find out whether our employees
have signed a union card by questioning their relatives.
We will not in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed to them by Section 7 of the National
Labor Relations Act.
We will make whole the employees laid off on April
NATIONAL MOBILE DEVELOPMENT CO. 505
24, 1970, for any wages lost as a result of our
discrimination against them.
All our employees are free to become , remain , or refrain
from becoming or remaining members of the above-named
or any other labor organization.
NATIONAL MOBILE HOMES
IMPROVEMENT , TRI PAR
HOMES DIVISION
(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 compliance with
its provisions , may be directed to the Board's Office, 500
Book Building, 1249 Washington Boulevard , Detroit,
Michigan 48226 , Telephone 313-226-3200.