Parkwood Homes, Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1968

170 N.L.R.B. 1451 (N.L.R.B. 1968)

PARKWOOD HOMES , INC. 1451
Parkwood Homes, Inc. and Local 364, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
25-CA-2724
April 16, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On November 28, 1967, Trial Examiner Eugene
E. Dixon issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting
brief, and the General Counsel filed a brief in sup-
port of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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, the
briefs, and the entire record in the case,' and
hereby adopts the findings, conclusions, and recom-
mendations 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 Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondent,
Parkwood Homes, Inc., Goshen, Indiana, its of-
ficers, agents, successors, and assigns , shall take the
action set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
1. Add the following as paragraph 2(c) of the
Recommended' Order and reletter present para-
graphs 2(c) and 2(d) respectively:
"(c) Notify Charles Lewallen and Robert
Reavis, if presently serving in the Armed Forces of
the United States, of their right to full reinstate-
ment upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces."
2. Add the following as the last indented para-
graph of the Appendix (Notice to All Employees)
attached to the Trial Examiner's Decision:
WE WILL notify - Charles Lewallen and
Robert - Reavis, if presently serving in the
Armed Forces of the United States, of their
right to full reinstatement , upon application, in
accordance with the Selective Service Act and
the Universal Military Training and Service
Act, as amended, after discharge from the
Armed Forces.
' At the commencement of the hearing, the Trial Examiner permitted
amendment of the complaint by the General Counsel to include additional
allegations of violations of Section 5(a}(1} of the Act. In permitting the
amendment, the Trial Examiner stated that at the close of the General
Counsel 's case, if the Respondent thought it needed more time because of
the amendment , he would consider a motion for a continuance for that pur-
pose. The Respondent did not make such a motion thereafter , but in its
brief to the Board in support of exceptions, it contends , in effect, that by
the amendment of the complaint it was denied due process of law. In view
of the Trial Examiner 's offer at the hearing to permit the Respondent addi-
tional time, if requested, to prepare a defense to the amended portions of
the complaint, and in view of the Respondent 's failure to make such a
request at the appropriate time, we find no merit in this contention.
For the reasons set forth by the Trial Examiner in his Decision , we also
deny Respondent's motion, renewed before us, to strike the testimony of
Lewallen.
' The Board hereby denies the Respondent 's request for oral argument
because the record, exceptions, and briefs adequately present the issues
and positions of the parties.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner: This proceed-
ing, brought under Section 10(b) of the National
Labor Relations Act, as amended- (61 Stat. 136),
herein called the Act, was heard at Goshen, Indi-
ana, on June 22, 1967, pursuant to due notice with
all parties being represented by counsel. The com-
plaint, issued by a representative of the General
Counsel of the National Labor Relations Board
(herein called the General Counsel and the Board),
on April 28, 1967, and based upon charges filed on
February 2 and served February 6, 1967, by Local
364, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica (herein called the Union), alleged (as amended
at the hearing) that Respondent, Parkwood Homes,
Inc., had engaged in certain specified conduct in
violation of Section 8(a)(1) and (3) of the Act.
In its duly filed answer Respondent, while ad-
mitting certain of the allegations of the complaint,
denied committing any unfair labor practices.
At the hearing after witness Charles Lewallen
had testified and had been excused and after the
General Counsel had rested, Respondent's counsel,
before starting his case-in-chief, made a demand for
170 NLRB No. 160
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any statements Lewallen might have given Board
agents regarding the case. The General Counsel op-
posed this demand and I sustained the General
Counsel, refusing to grant Respondent's request.
Respondent thereupon moved to strike all the
testimony by Lewallen which motion I denied. In its
brief, Respondent renews this motion contending
that I erred in refusing to order the production of
Lewallen's statement. I hereby renew my denial of.,
said motion on the grounds that my ruling regard-
ing the production of the statement was not error.
See Walsh Co., 129 NLRB 294; Canton Mills, 148
NLRB 464.
Upon the briefs duly filed by Respondent and the
General Counsel and upon the basis of the entire
record in the case, including my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS INVOLVED
At all times material Respondent has been an In-
diana corporation with places of business at Bristol,
Indiana, and Moultrie, Georgia, where it is engaged
in the manufacture of mobile homes. During the 12
months preceding issuance of the complaint, which
is a representative period, Respondent manufac-
tured, sold, and shipped from its Indiana plant
finished products valued in excess of $50,000 to
points outside the State of Indiana. At all times
material Respondent has been an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Local 364, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
As indicated, Respondent at all times material
has been engaged in the manufacture of mobile
homes at two plants-one located in Bristol, Indi-
ana, and the other at Moultrie, Georgia. To trans-
port its finished product, Respondent had 13 trac-
tors used to haul the mobile homes and 3 tractors
(2 diesels and I gasoline) used with trailers and
referred to as "semis" to haul parts and supplies.
The two diesels were used chiefly for the transpor-
tation of products between the Bristol and Moultrie
plants, the gasoline "semi" being used essentially
for local hauling. Robert Reavis and Charles Lewal-
len both started working for Respondent in late
' These two drivers are both alleged in the complaint to have been Sec-
tion 8(a)(3) discriminatees , first by way of a reduction in work and then by
a way of discharge They are the only drivers with whom we are so con-
cerned
, There is no evidence in the record to counter this testimony not-
1965, and ultimately became regular drivers of the
"semis" used in the transportation of products
between the two plants-Reavis 2 months after
being hired and Lewallen in August 1966.'
About mid-November 1966, Respondent had
begun exploring a plan to change the basis of pay-
ment of the two drivers from a straight weekly sal-
ary to a mileage basis which in effect would
amount to a reduction in pay. Presumably because
of the proposed pay reduction, Reavis and Lewal-
len went to the union office in South Bend on
November 23 where they both signed union
authorization cards. Two days later the Union
wrote Respondent claiming to represent a majority
of Respondent's employees in a bargaining unit
composed of its "semi-drivers" and demanded
recognition. A meeting date was thereafter ar-
ranged and then rescheduled for December 8
between the Company and the Union at which time
an attempt was made to agree on the bargaining
unit. Being unsuccessful in this attempt, a Board
hearing was scheduled which took place on January
9. Both Reavis and Lewallen appeared at the hear-
ing and the latter testified at the call of the Union.
About December 1, Reavis and Lewallen were
told by Respondent's dispatcher, George Wortinger
(an admitted supervisor), that because business was
slack and would be slack until after the first of the
year, Respondent was going to try to cut down from
two trips to one trip a week to the Moultrie plant
thus using only one truck instead of two. The men
asked if the two drivers could run the trip together
and split the pay until business picked up. Wort-
inger said he would find out and went to check with
Clayton Merrill, Respondent's treasurer, returning
with the information "that it would be quite all
right." Thereafter the two drivers made two or
three trips together on this basis. Then Reavis (as
senior man) asked Wortinger to lay Lewallen off.
Wortinger again checked with Merrill and came
back to Reavis with the comment, "You are going
to run it just like it is, or else if you don't like it,
quit."
According to Reavis' direct testimony, on Satur-
day, January 21, he was scheduled to make a trip to
Moultrie alone.' He had taken the loaded truck
from the plant at Bristol and had driven it to a
truck stop some 22 miles from the plant at the in-
tersection of U.S. Highway 6 and State Highway 15.
There he parked it about 3 p.m. and went to his
home in Ligionier several miles away. He stayed
home until about midnight when he returned to the
truck stop prepared to start the trip to Moultrie.'
When he started the motor and turned on the lights
he discovered that there were no taillights on the
trailer and that two of the four headlights were not
withstanding Wortinger 's refusal to comply with Reavis ' request to lay off
Lewallen
'' It was his practice on these trips to drive at night as much as possible to
avoid heavy traffic
PARKWOOD HOMES, INC.
working.' Since it was now about 1 o'clock on Sun-
day morning there was, not much he could do
although he "tried to call around ....'.'S Later that
morning he "tried to call the plant but nobody was
out there." According to his testimony, .he_ would
have called Wortinger but he did not have his
telephone number because Wortinger had never
given it to him. Moreover, according to his
testimony, he did not know where Wortinger lived.
He also testified that he had the number of Larry
Hale (Wortinger's predecessor as dispatcher who
was still employed by Respondent at this time), but
he did not call Hale because the latter had told him
that he no longer had - anything to do with the
trucks.
Thus, nothing was done about the truck until
Monday morning when Reavis called Wortinger at
the plant. Wortinger wanted to know why Reavis
had not called him and Reavis replied that he did
not have Wortinger's home number-that Wort-
inger had never given it to him. Reavis also told
Wortinger at this time that he was having sinus
trouble and was going- to see a doctor. According to
Reavis'- further direct testimony, he waited with the
truck until a couple of men came out and towed it
back to the plant.' Then he went to the doctor's of-
fice, gnome medicine, and went home. When he
got home his wife informed him that the plant had
called two or three times and wanted him -to come
in. He -thereupon called Wortinger who told him
that Ray Bassett, Respondent's president, wanted to
see him and that Lewallen was coming in also.
Reavis got to the plant about 10:30. Lewallen
was already there with his suitcase. Reavis asked
Lewallen what he was doing there and the latter
replied that he was "ready to go on a trip."7 Reavis
then asked Wortinger what,was "cooking." Wort-
inger laughed and said "Ray- wants to talk to you,"
The two men waited. Lewallen asked when the trip
would be ready to go and Wortinger replied "You'll
have to wait and talk to Bassett first."
When Bassett had not appeared by noon they left
to get something to eat. On their way back in their
car, they saw Bassett coming toward them with
another man in his car. Reavis jumped out of the
car, "tried to flag him down, and he kept right on
going." The two drivers then turned their car
around and followed -Bassett's'car to the Red Bird
Tavern-where they overtook him, Lewallen- -rolled
down his window and said; I )o you want to talk to
us, Ray?" Bassett replied that he had to get his
dinner then and would see them-at the plant. So the
According to his further testimony when he had brought the truck in
the week previously , he had "told them " that he had functional headlights
on only one side. Nevertheless, he didhotcheck the lights before he left the
plant on the 21st because it,was daylight and he "just didn 't think."
Besides, he wanted, to get home to see how his ailing wife was. '
5 On cross-examination he testified that he called his sister-in-law to get
her to come and take him home-and that-he made no other calls. He later
testified on cross that when he got home about 2'a.in . he tried unsuccess-
fully to get a call through to the plant.
1453
two returned to the plant and waited an hour or so
and then returned to the tavern. Bassett was still
there with the other man. Reavis and Lewallen had
just ordered a drink when Bassett and his cam-
panion got up and walked out. When they finished
their drink Reavis and Lewallen went back to the
plant and asked Wortinger if Bassett was. ready to
talk to them. Wortinger told them that they would
have to come back the follo wing morning at 10.8
They- arrived at the plant the next day a few
minutes after 10. According to Reavis' testimony,
they asked if they could see Bassett . Wortinger
started laughing and said that they were late and
that Bassett was not there. Reavis said that they had
waited all the previous day for Bassett and asked if
he could not have waited 5 minutes'for them. Wort-
inger "just laughed and ... said,: " You know-how it
is, boys."' Reavis then asked if there `was not some
way they could get in touch with ,Bassett . Wortinger
made a telephone call to someone and then told
them that Bassett would see them at, 2 , o'clock.
Thereupon, the two went out' for a sandwich and
coffee. After discussing their situation they decided
that since they were "not getting any trips" they
would go to Goshen and file for unemployment
compensation. This they did, giviing as the reason
for their claim a lack of work. Then they returned
to the plant at 2 o'clock to see Bassett.
According to Lewallen's testimony, when they
went into the office they asked Wortinger, "Well,
George, what is the verdict? Do we talk to Bassett,
go on a trip, or what?" Wortinger laughed and said,
"Well, you are not going to believe this but Bassett
can't see you today." About what then happened
Lewallen testified as follows:
"Well, we left. We went out in the yard to get
in the car and George, followed us out to the
car, just outside of his office, and I don't re-
member which one brought it up 'but we said,
`George, we are not getting any runs.'.I said,
`We are not working. So _we must be laid off.
We signed up for unemployment,' and he said,
`You are not-going to waste the state's money,
are you?' I said,-Well, it is as simple as this.
You don't call us' for a run. We, are drawing
unemployment.' He says, `Does this mean you
are quitting?' and I said, -`No, it doesn't mean
we are quitting.. I said, I' am getting tired of
you calling me for 'a run and then I come in
here and there is no run available.' I said, ` Igot
kids. I got to take them to the babysitter and
make arrangements expecting -to be gone on a
' On cross-examination he testified at one point that they drove the truck
back and that he did not drive it back on Sunday because he "wa s going to
'the doctor" and in any event "didn 't think about it."
I According to Lewallen's undenied and credited testimony , Wortinger
had called him that morning and told him that Respondent had a trip to
Georgia for him. - i - -
' According to Reavis' testimony, at this time Bassett's car was at the
plant and Reavis thought he saw Bassett "walking around in there.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trip and it don 't pan out.' I said ` Don't bother on January 23, he testified as follows:
dk MI"to call me unless you 've got a run.
That was the end of the conversation and the two
men left.
On January-30, according to Lewallen, Wort-
inger called him at his home. About this call Lewal-
len testified as follows:
"He called and said, `Come on in.' I said,
`Have you got a run for me, George?' He said,
`No, I have got a run for you. Just come on
in.' I said, `Well, what do you want if you
haven't got a run?' He said, `I want to
straighten up your money.' I said, `Money?
What money?' He said, `Well, your back
checks.' I said, `I have got no back check. You
don't owe me any money.' He said, `No, our
books show that you owe us $30 on your
driver's fund.' I. said , `What are you trying to
say, George, are you firing me?' He said, `No, I
didn't say that. Just come in and we will
straighten up the money.' I said, `Well, George,
I haven't been working. I have not got $30 to
straighten `it up and if you haven't got a run, I
am sure not going .to drive to Bristol."'
According to Reavis, he had a telephone conver-
sation with •Wortinger in March about which he
testified as follows:
"I called Mr. Wortinger in March one morning
around 9:30 or 10 and I said, `George, I am
getting $40 a week unemployment and,' I said,
`that is not very much to keep a family on.
When can I go back to work?' He says,
`Work?' I said, `Yes sir.' He said, `Call me in a
half hour.' So I waited a half hour and called
him. Then he said, `Call me at 4 o'clock.' So I
called him back at 4 o'clock and the office girl
says, `Mr. Wortinger has left,' and I said, `Well,
who can I talk to out there,' and she said,
`Well, Jim West is here.' Jim West is the sales
manager . Jim, something, and I had to wait
about 10 minutes until I got him and I said, `I
was calling George about work.' He said,
`Well, hasn't George got your phone number?'
I said , `Yes,' and he said, `Well, good enough
then.' So that was it."
Both drivers testified that at no time subsequent
to January 23, had they been offered any work by
Respondent and Respondent's records show that
the last trip the two made for Respondent was paid
for on January 14.
There was nothing in Bassett 's testimony to con-
trovert any of the foregoing. As to what happened
" The truck was supposed to have been in Georgia on Monday morning.
In this connection the record shows (1) that the Driver 's Monthly Log
report , on Lewallen dated January 16 contains a notation "No more
driving"and that a similar notation is set forth for Reavis dated January 18;
(2) that three new "semi" drivers were hired after January 14-Donald
Defenbaugh , in - February , Richard Coombs, in March , and James
Heckman, in May; ( 3) that in the period January 14 to June, trailer toter
drivers Andrew Boone and Waldimar Clements occasionally worked as
ay the 23rd ofononWell, I came in to wor
January, and I was informed that we had
another truck breakdown and was not in Geor-
gia. So I inquired where the drivers were, that I
wanted to talk to them, and I proceeded into
town to eat my lunch and I ran into them on
the way. I had another business associate with
me and we went in and had lunch, and I came
back and I had another appointment at 2 o'-
clock in Elkhart, which I made and set up. I
told my girl to set up an appointment for 10 o'-
clock the next morning at which I was present
and Mr. Lewallen and Mr. Reavis were not.
Then I had another appointment in Elkhart,
which I had to leave for and fulfill that ap-
pointment and that is about the extent of it.
From his further testimony it appears that the
"business associate" he referred to was a salesman
from whom Respondent buys tires; that his purpose
in setting up the appointment with Lewallen and
Reavis "was to have them account ... for the
failure to get a truck to Georgia"' because if there
was something wrong he would have to change it;
that it was his understanding that Lewallen and
Reavis had "... quit, just walked off" and that
other drivers were hired to do their work.'°
Except for Wortinger's testimony that. he had
given Reavis and all the other drivers his home
telephone number," there was no substantial con-
tradiction of the foregoing evidence in Wortinger's
testimony. Except for the call to Lewallen on
January 23, to come in prepared to take a trip to
Georgia, there is nothing in the record to show that
any work was offered to Reavis or Lewallen after
that occasion. Although Wortinger testified at one
point on direct that he had offered work to Lewal-
len and Reavis after the Highways 6 and 15 in-
cident his subsequent testimony on direct seems in-
consistent with that assertion. Moreover, on cross-
examination the only occasions on which he could
recall talking to the two were those that they
testified about (on January 30 with Lewallen and in
March with Reavis) and on those two occasions he
admitted that he had not offered them any work. I
am convinced and find that the two drivers were of-
fered no work as they testified.
Reavis testified about a conversation he had in
January with Respondent's Plant Manager Van
Dam at the Bristol-plant. According to Reavis,
"after it was out" that he and Lewallen had signed
union cards, no one at the Bristol plant would talk
to them. Since they and Van Dam were "pretty
"semi" drivers; and (4) that employees Al Daniels and Oliver Pruex were
also used on the Moultrie run after January 14.
" The significance of this testimony is considerably watered down by the
further revelation on cross-examination that, since the time that Wortinger
had done so, his address and telephone number had changed and that he
had not given his new number individually to the drivers, claiming , instead,
to have posted it on the bulletin board in the office.
PARKWOOD HOMES, INC.
good friends" and "he was always- way high as far
as (they) were concerned" he told Van Dam that
he and,Lewallen wanted him to know that there
were "no hard feelings." Van Dam replied, "I wish
you would have talked to Ray and Bob before you
had done this." Reavis replied, "I tried to talk to
Ray and Bob and neither one of them would have a
thing to do with me and ... a man has got to do
something. "'Van Dam said, "Well, you know when
a company gets it in for you they are going to find a
way to get rid of you." Since Van Dam did not tes-
tify the foregoing stands undenied in the record.
Accordingly, I credit Reavis here.
Reavis also testified as follows about a conversa-
tion he had with Wortinger around December 27 as
he was leaving the office:
" .. I started to walk out the door and George
Wortinger said, `Just a moment, Reavis.' I
walked back and he looked at me and he said,
`What do you think about the Union?' I said, `I
don't know. What do you think about it,
George?' Well, he said, `We don't think much
of it around here. We don't want it.' I said,
`Yes, I heard you had a meeting in here and
voted on it this morning .' He said, `Yes, that is
right.' I walked out the door."
Wortinger admitted calling a meeting of all the
"toter" drivers about a week after the Union's letter
had been received, about which he testified as fol-
lows:
The only thing that I said at that meeting re-
garding the Union was that we had received a
notice from the Union that the drivers would
have a chance to vote on whether or not they
wanted the Union, and I brought this fact up to
them so [they] would have a chance to study
it, you know, to see whether or not they did
want a union, and that was all I said, and that
was what I said at the meeting about a union.
Wortinger also denied - interrogating any of the em-
ployees about the Union at that meeting or con-
ducting any poll- there as to how they felt about
having the Union represent them. Nowhere in this
testimony, however, is there any denial of the
December 27 conversation as testified to by Reavis.
Accordingly, I credit Reavis in this regard also.
Albert H. Daniels, a former "trailer toter" driver
who had been discharged by Respondent12 but who
was still working at the time of the disabled truck
incident, was called as a witness by the General
Counsel and testified in substance as follows: In a
general conversation in the garage or the office
with Wortinger either a couple of weeks before
12 The reason for his discharge was not shown.
's Pierce was not called by either side as a witness.
'a The company records show that Daniels was paid on January 20 and
January 31 for trips to'Georgia . The evidence further shows that the Geor-
1455
Christmas or just after the first of the year at which
one of the mechanics, Harry Pierce, was present,13
Wortinger made the comment that " . . when this
was all over ... the two drivers would be gone."
Daniels explained that the "this" referred to by
Wortinger was the union matter. According to
Daniels, although his job was that of a "trailer
toter" in the winter when the snow was bad, he
would work in the shop or elsewhere. At the time
of this conversation with Wortinger he was working
in the shop as a mechanic. Daniels further testified
that on January 20, he was taken out of the shop to
make a trip to Moultrie." He also testified that
Reavis "threatened to kick the thunder out of
(him)" for making the trip to Moultrie.
In his testimony Wortinger denied making the
above statement to Daniels. Between the two I
credit Daniels. Nowhere in what he testified to or
how he testified was there anything to give me any
reservations in appraising it as there was with the
testimony of Wortinger. Not only did Wortinger ap-
pear inordinately -ill at ease on the stand, he other-
wise failed to impart any sense of candor.
Moreover, this impression of him was- enhanced by
the inconsistencies in his testimony and between his
testimony and his sworn statement.
8(a)(1) Conclusions
The complaint, as amended at the hearing, al-
leged that in December 1966 Wortinger threatened
to discharge employees because of their union sup-
port and activity and that he also interrogated em-
ployees about their union activities all in violation
of Section 8(a)(1) of the Act. I find that these al-
legations are established by Wortinger's question to
Reavis on December 27- as to what he thought
about the Union and by his comment to Daniels
about the same time that "when this (the union
matter) was all over ... the two drivers (Reavis and
Lewallen) would be gone."
8(a)(3) Conclusions
The comlaint alleges -that from January 14, 1967,
Respondent reduced the hours of work and the
number of trips Reavis and Lewallen would nor-
mally have received and on January 23 discharged
them both because they joined and_ assisted the
Union and thus discriminated against them in viola-
tion of Section 8(a)(3) of the Act.
Respondent 's defense as I understand it is that
any reduction in the number of trips between the
gia trips after the mileage basis was established (including those made by
the newly hired men ) were all paid for on that basis and that the payment
was generally made to the driver immediately on his return to Bristol.
1456 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Bristol and Moultrie plants reflected in the record15
was not-the result of discrimination but was purely
economic in orgin and that in any event the .em-
ployees in question were not discharged but had
voluntarily quit.
I agree with Respondent that the reduction in-the
number of trips in 1967 from about two a week to
one a week on the -average was not discriminatory
in and of itself. I do not agree, however, that the as-
signment of those trips was not grounded in a dis-
criminatory motive at the expense of Reavis and
Lewallen. Although it is true that Respondent did
not formally discharge the- two, what it did in effect
amounted to =the same thing. Respondent 's reliance
on the fact that the two applied for unemployment
compensation is no support for its, position-that, the
men quit. Such action o_ n, its face is as open to an
interpretation that, the men thereby were demon-
strating their interest in retaining their connection
with Respondent as it was to the contrary. ' In any
event any question in Respondent', $ mind about the
status of these two should have been eliminated by
L' ewallen's statement 'to Wortinger on January 24
that-their application for unemployment compensa-
tion did not mean they were quitting their jobs.
And if any -doubt about it -lingered after that, it
should certainly have been dispelled by Lewallen's
request for a run in his January 30 telephone con-
versation with Wortinger and by a similar request
by Reavis in his March telephone conversation with
Wortinger.
That Respondent's motive was discriminatory re-
garding the tenure of Reavis and Lewallen is shown
by Van Dam's observation in connection with their
having signed union cards that "when a company
gets it in for you,-they are going to find a way-to get
rid -of you," and-by Wortinger's prophetic threat in
the same vein that the two drivers would ultimately
be, gone. And that this motive and purpose was in
existence prior to their alleged resignations is
'shown by the notations "no more driving" on their
driver's - log, dated prior to their- applications - for
unemployment compensation.. Respondent's failure
to show why Daniels was called upon to make runs
to Moultrie that he was paid for on January 20 and
January 31 shows that as of about January 1616
Respondent's discriminatory plan had already been
put into effect. Accordingly, I find that from that
date Respondent reduced the hours and trips of
Reavis and 'Lewallen and that on January 23
Respondent in affect discharged them in violation
of Section 8(a)(3) and (1) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section
8(a)(1) and (3) of the Act, I shall recommend that
it cease and desist , therefrom ,and that-it take cer-
tain affirmative action-,designed to effectuate the
policies of the Act. I shall also recommend' that
Respondent offer- Charles Lewallen and Robert
Reavis immediate and full reinstatement to their
former or substantially equivalent positions and
that they be made whole for any loss of pay from
January 15, 1967, to the date of-the offer, of rein-
statement less their net earnings during' that- period.
Loss of pay shall be computed and paid in ac-
cordance with the formula adopted by the Board in
F. W. 'Woolwo'rth Company, 90 NLRB 289, and with
interest thereon at the rate of '6 percent per`annurn
as prescribed by the Board in Isis Plumbing, A Heat-
, 138 NLRB 716.-
The unfair labor practices committed by Respon-
dent involve conduct in derogation of the principles
of good-faith collective bargaining. The inference is
-thus warranted. that Respondent - maintains an at-
titude of opposition to the purposes of the Act with
respect to the protection of employee rights in
general. Accordingly, I shall recommend - that
Respondent-be' ordered to cease and desist from in-
fringing in any manner upon the rights guaranteed
in Section 7 of the Act.
Upon the basis, of the foregoing findings of fact
and the entire record in the-case, I make the follow-
ing: -
CONCLUSIONS QE LAW
1. Parkwood _ Homes, Inc., - is and at all times
material herein has been-, an employer within the
iieaning-of`Section 2(2) of the-Act, - I
:. 2. Local , 364, International Brotherhood- of
Teamsters, Chauffeurs, `Warehousemen and Help-
ers-of America. is and at all.times material herein
1s The record shows the following trips to, have been made by those
named on the dates stated.
. ` `Lewallen & Reavis Jan. 14
At Daniels Jan. 20
Al Daniels & OliverTruex - Jan. 31
Donald Defenbaugh Feb. 6
Donald Defenbaugh _ Feb. 10
Donald Defenbaugh Feb;`18
Donald Defenbaugh - --Feb. 22- -
Donald Defenbaugh Mar. 6
Andrew Boone. = Mar. 6
Donald Defenbaugh Mar, 13
Donald Defenbaugh Mar. 17
Richard Coombs Mar. 21
Donald Defenbaugh
Donal&Defenbaugh` a
Donald Defenbaugh
Donald, Defenbaugh
Donald Defenbaugh
Donald Defenbaugh -
JaniesHickman ,
Donald Defenbaugh
Richard Coombs -
Waldimar Clements
James Hickman
Waldimar Clements
Waldimar Clements
Valdimar Clements
's it took about 4 days fora tri
Mar. 27
Mar: 30
,Apr.5
Apr. 12
Apt. 20 .
Apr.28
Apr. 28. ` x
May 3 -
May 17
May18 -
May 26
-May 31
June 7- -
June 16 -
to Moultrie and back,
PARKWOOD HOMES , INC. 1457
has been a labor organization within the meaning of
Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
its employees in the exercise of the rights guaran-
teed by Section 7 of the Act, as found above,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By discriminating against its employees, as
found above, Respondent has engaged in unfair
labor practices within the meaning of Section
8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in this
proceeding, I recommend that Respondent. Park-
wood Homes, Inc., its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership of its employees
in Local 364, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization by dis-
criminatorily discharging or in any other manner
discriminating against them in regard to their hire,
tenure of employment, or any term or condition of
employment.
(b) Illegally interrogating its employees about
their union activities, membership, or sympathies.
(c) Threatening its employees with discharge or
other reprisals because of their union activities.
(d) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of -their right to self-organization, to bargain
collectively through representatives of their own
choosing, or to engage in concerted activities for
the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or all
such activities.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Offer to Charles Lewallen and Robert Reavis
immediate and full reinstatement to their former or
substantially equivalent positions without prejudice
to their seniority or other rights and privileges, and
make them whole in the manner set forth in the
section 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 analyze the
amount of backpay due under the terms of this
Recommended Order.
(c) Post at its plant in Bristol, Indiana, the at-
tached notice marked "Appendix."" Copies of said
notice to be furnished by the Regional Director for
Region 25, shall, after being duly signed by an
authorized representative of Respondent, be posted
by Respondent immediately upon receipt thereof,
and be maintained by it for a period of 60 consecu-
tive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are
customarily posted.
(d) Notify the Regional Director for Region 25,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.18
IT IS FURTHER RECOMMENDED that unless on or
before 20 days from the receipt of this Decision the
Respondent notifies the aforesaid Regional
Director, in writing, that it will comply with the
foregoing Recommended Order, the National
Labor Relations Board issue an order requiring it to
take such action.
it In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
'" In the event that 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 ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Ex-
aminer of the National Labor Relations Board and
in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify
our employees that:
WE WILL NOT discourage membership in
Local 364, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or in any other labor or-
ganization, by discriminatorily discharging
them or in any other manner discriminating
against them in regard to their hire or tenure of
employment or any term or condition of em-
ployment.
WE WILL NOT illegally interrogate our em-
ployees concerning their union activities.
350-999 o - 71 - 93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with
discharge or other reprisals for engaging in
union activities or joining a union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the right to self-organization, to
form, join, or assist the aforesaid Union or any
other labor organization, to bargain collective-
ly through representatives of their own choos-
ing, and to engage in other concerted activities
for the purpose of collective bargaining or
other mutual aid or protection, or to refrain
from any and all such activities.
WE WILL offer Charles Lewallen and Robert
Reavis immediate and full reinstatement to
their former or substantially equivalent posi-
tions without prejudice to their seniority and
other rights and privileges and make them
whole for any loss of pay suffered as a result of
our discrimination against them.
PARKWOOD HOMES, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 614 ISTA Center, 150 West Market St., In-
dianapolis, Indiana 46204, Telephone 633-8921.