Preferred Homes Corp.

National Labor Relations Board - Board Decisions

Jun 20, 1960

127 N.L.R.B. 1350 (N.L.R.B. 1960)

1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by this February 19 picketing at Major Liquor , Local 641 violated Section
8(b) (4) (A) at this incident at the Major Liquor warehouse . Otherwise the Major
Liquor incident must be dismissed. i
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in
connection with the operations of the Charging Parties described in section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce
among the several States, and tend to lead to labor - disputes burdening and ob-
structing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondents , and each of them, is a labor organization within the meaning
of Section 2(5) of the Act.
2. On and after February 2, 1959 , by inducing and encouraging employees of
Harvey Redden , Inc., to engage in a strike or concerted refusal in the course of
their employment to perform services for their employer, an object thereof being to-
force or require said employer to cease using , selling, handling, transporting, or
otherwise dealing with or doing business with Riss and'Co., Respondent Local 560
has engaged in unfair labor practices proscribed in Section 8(b) (4) (A ) of the Act.
3.' On, February 19, 1959, at the warehouse of Major Liquor Distributing Com-
pany, and on February 24, 1959, at the warehouse of Fenestra, Inc., by inducing and
encouraging employees of said Major Liquor Distributing Company and of Fenestra,
Inc., to engage in a strike or concerted refusal in the course of their employment
to perform services for their respective employers , an object thereof being to force
or require said employers to cease using , selling, handling, transporting , or otherwise
dealing with or doing business with Riss and Co., Respondent Local 641 has engaged
in unfair labor practices proscribed in Section 8(b) (4) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Joint Council No. 73 has not engaged in any unfair labor practices.
6. Neither Local 560 nor Local 641 -committed any unfair labor practice in
connection with the employees of Uhrik Transportation' Company, Feuer Trans-
portation Company , Colgate Palmolive Company, - United States Lines Co., or,
on February 20, of Major Liquor Distributing Company.
[Recommendations omitted from publication.]
Preferred Homes Corporation and Millmen Local 2768, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO.
Case No. 10-CA-4057. June 20,-1960
DECISION AND ORDER
On October 12, 1959, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had ,engaged in and was engaging in unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. On April 8, 1960, the Trial Exam-
iner issued a Supplemental Intermediate Report, a copy of which is
attached hereto, affirming' the findings and conclusions in the Inter-
mediate Report. The Respondent has filed exceptions to the Inter-
mediate Report and Supplemental Intermediate Report and briefs in
support of the exceptions.
127 NLRB No. 149.
PREFERRED HOMES CORPORATION 1351
The Board 1 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 Interme-
diate Reports, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner 3
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Preferred Homes
Corporation, Columbus, Georgia, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a)_ Discouraging membership in Millmen Local 2768, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, or
any other labor organization, by discharging or refusing to reinstate
any of its employees or by discriminating- in any other manner in
regard to hire or tenure of employment or any term or condition of
employment.
(b) Interrogating employees concerning their union activities or
sympathies in a , manner constituting interference, restraint, or co-
ercion in violation of Section 8(a) (1) of the Act.
(c) Threatening to shut down its shop if a union organizes its
employees.
(d) In any other manner interfering with, restraining, or coercing
its employees in the right to self-organization, to form, join, or assist
Millmen Local 2768, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from any
or all of such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of. employment as authorized in Section 8(a) (3)
" Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three-member panel [Members Rodgers, Bean,
and Fanning].
2 The Respondent has excepted to the Trial Examiner ' s finding that on March 30,
Gibbons filed unfair labor practice charges with the Board 's Regional Office. The charges
were filed by the Union . The Intermediate Report is corrected accordingly.
3 The primary question is one of credibility-which set of witnesses to believe. Since
a Trial Examiner can observe witnesses while they are testifying, he is in a better posi-
tion-than the Board to determine such questions . Accordingly , unless the clear pre-
ponderance of all the relevant evidence convinces the Board that the Trial Examiner's
resolutions of credibility are incorrect, the Board will not overrule them. Standard Dry
Wall Products , Inc., 91 NLRB 544, 545, enfd . 188 F. 2d 362 ( CA. 3). Applying this
standard , the Board finds insufficient reason -to upset the Trial Examiner's resolutions of
credibility . They are therefore affirmed.
a
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Offer to Thomas A. Gibbons immediate and full reinstatement
to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges, and make him whole
in the manner set forth in the section of the Intermediate Report
entitled "The Remedy," for any loss of pay he may have suffered as
the result of the discrimination against him.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay due.
(c) Post at its plant in Columbus, Georgia, copies of the notice
attached to the Intermediate Report marked "Appendix." 4 Copies
of-said notice, to be furnished by the Regional Director for the Tenth
Region, shall, after being duly signed by the Respondent, be posted
by the Respondent immediately upon receipt thereof and be main-
tained 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 the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Tenth Region, in writing,
within 10 days from the date of this Order, what steps have been taken
to comply herewith.
4 The notice is hereby amended by deleting the words "Pursuant to the Recommenda-
tions of a Trial Examiner" and substituting the words "Pursuant to a Decision and
Order " In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order"
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the Labor Management Relations
Act, 1947, 61 Stat. 136 (herein called the Act), was heard in Columbus, Georgia,
on July 9 and 10, 1959, pursuant to due notice to all parties. The complaint, issued
by the General Counsel of the National Labor Relations Board, and based on charges
duly filed and served, alleged that the Respondent had engaged in unfair labor prac-
tices proscribed by Section 8(a)(1) and (3) of the Act. In its answer, duly filed,
the Respondent denied that the Board had jurisdiction over its operations and denied
that it hacj committed any unfair labor practices.
All parties were represented at the hearing and were afforded full opportunity to
be heard,' to examine and cross-examine witnesses, to introduce relevant evidence,
and to argue orally. Oral argument was waived. On September 14, 1959, Counsel
for the General Counsel and for the Respondent submitted briefs which have been
fully considered.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Georgia corporation, was chartered on March 2, 1959, and
maintains an office and plant at Columbus, Georgia, where it is engaged in the pro-
PREFERRED HOMES CORPORATION 1353
duction of manufactured homes. The corporate structure has two classes of stock,
all of which is held in substantially equal proportions by three officers and directors,
namely, Scott Grant, president; J. Ed Sayers, vice president; and Charles H. Rice,
secretary-treasurer. For several weeks prior to the date Preferred Homes secured its
charter, Mr. Grant was actively engaged in the task of getting a plant ready for pro-
duction., To this end, during the months of January and February, he remodeled
the necessary buildings for a shop and mill, hired three employees, and completed
the installation of machinery and equipment. Thereafter, in the 4-month period from
March 2 to July 2, 1959, the Respondent produced and sold 18 homes valued at
approximately $54,488 to customers located outside the State of Georgia.'
The Respondent contends, however, that this total 'is not a valid basis for deter-
mining the Board's jurisdiction. Sayers, a resident of Mobile, Alabama, who paid
$17,752 for seven homes, is, of course, an officer and one-third owner of the Re-
spondent. He is also a stockholder in Preferred Builders, Inc , the purchaser of
one home valued at $4,361 which was shipped to Florida. The Respondent argues
that it is not likely that these sales will be repeated and that their inclusion in the
sales total for the Respondent does not fairly reflect the probable amount of inter-
state business which the Respondent will have. No convincing argument was offered
in support of this contention, however, and Mr. Sayers himself did not testify as
to his plans for doing business in the future with Preferred Homes. On the other
hand, the purchases which Sayers made were, by no means, confined to the first month
of the Respondent's operations. Preferred Builders bought the Respondent's first
home on March 9 and the last purchase which Sayers made was dated May 5, 1959.
Under these circumstances, it appears reasonable to conclude that Sayers will continue
to deal with the Respondent whenever it is advantageous for him to do so and that
sales made to him and to Preferred Builders should not be eliminated from any
computation as- to the interstate volume of the Respondent's business. The Re-
spondent also contends that the sale of six homes, for a total of $18,585, to Freddie
Foster in Phenix City, Alabama, should not be considered as interstate transactions
because the Phenix City-Columbus area is, in effect, one metropolitan community,
and that the incidental location of the Georgia-Alabama boundary does not change
the essentially local nature of the sales. This identical argument, however, as to this
very community has already been rejected by the Board. Wells Dairies Cooperative,
107 NLRB 1445, 1447. Since the above described out-of-State sales exceed $50,000,
it is my conclusion, and I find, that the Respondent is engaged in commerce within
the meaning of the Act. It should be noted further that, even if the sales to Preferred
Builders and to Sayers were excluded, there would still remain a total of $32,000 in
sales to purchasers, who, admittedly, were outside the State of Georgia. As these
occurred in only a 4-month period and the Company is a going business, it may be
assumed on these facts alone that the Respondent's volume of out-of-State sales
over a 12-month period, will be far in excess of $50,000 Hawkins-Hawkins, Inc.,
121 NLRB 740; Atlantic Mills Servicing Corporation of Cleveland, Inc., et al., 117
NLRB 65, 66.
One further jurisdictional argument upon which the General Counsel relies should
be considered. This is grounded on the -fact that in addition to the sales during the
4 months which have been discussed above, the Respondent also sold 10 houses for
approximately $33,000 to the Salter Construction Company. Salter is one of three
companies (herein called Salter) located in Columbus, Georgia, which constitute a
-single employer within the meaning of the Act 2 Salter's annual gross sales exceed
$1,000,000. Moreover, in the first 6 months of 1959 it purchased materials valued
at from $33,000 to $40,000 from out-of-State.3 With an annual gross in excess of
r 1These purchasers were located in Alabama (J. Ed Savers, Freddie Foster, H. D Carroll,
and Alfred Searcy), Mississippi (John D. Omara and George W. Loffeh), and Florida
(Preferred Builders, Inc ).
'These are Salter Construction Company, Muscogee Construction Company, and W G
Salter Realty W G Salter is the majority stockholder in Salter Construction, a one-third
owner of Muscogee Construction, and the sole proprietor of W G Salter Realty. Salter is
a director in both the corporations and Leon C. Lane holds the post of secretary-treasurer
in both companies The two construction companies and Salter Realty share the same
office space and have common employees On these facts, I find that all three, for pur-
poses of determining the Board's jurisdiction,', constitute a single employer. Frank S.
Owens et al , 118 NLRB 1619, 1620; Ivy Hill Lithograph Company, 121 NLRB 831 ;
Keystone Coat, Apron & Towel Supply •Company, et at. , 121 NLRB 880; Truss-Mart
Corporation, et al , 121 NLRB 1430
,a These figures,are based upon the, testimony of Leon C. Lane, who estimated that in
the first part of 1959 purchases of, brick from Alabama totaled from $3,000 to $5,000 and
that purchases of homes from a Louisiana manufacturer were valued at $30,000 to $35,000
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$500,000 and a substantial impact on commerce , Salter, of course , is subject to the
Board 's jurisdiction . Carolina Supplies & Cement Co ., 122 NLRB 88 . Since the
Respondent sold almost $ 33,000 in merchandise to Salter during the first 4 months
of its existence , the annual volume of sales, it may be assumed , will exceed the
minimum $50 ,000 gross annual indirect outflow standard . Siemons Mailing Service,
.122 NLRB 81. Consequently , on this further ground, I find that the Respondent is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Millmen Local 2768, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, herein called Carpenters or Union, is a labor organization within the
meaning of the Act.
III. THE. ALLEGED UNFAIR LABOR PRACTICES
A. The facts
As noted earlier, the Respondent was incorporated on March 2, 1959, and went
into production about that time. For approximately a month-preceding that date
it had only three employees. These were Durwood McMichael, who had-been hired
as a foreman or supervisor on -January 29, and two rank-and-file employees, Henry
Johnson and Thomas A. Gibbons, who were hired on January 30 and February 3,
respectively. During February these three individuals were engaged in' the work
connected with outfitting and equipping the plant so that production could be started
in March. On March 6, five additional employees were hired. The first home to
be produced by the new organization was finished soon thereafter. On about March
19, because of unfavorable weather and other, business reasons, the plant was shut
down and all of the men except McMichael and Johnson were laid off. McMichael
told the employees, however, that the layoff was temporary and that they should
keep in touch with him for information as to when they could return. In fact, the
plant resumed operations on about March 30, and reemployed all those who wished
to return except Gibbons. From that time forward it experienced a gradual increase
in its work force. On April 2 four new employees were hired, on April 9 another
four were hired, and during the following weeks in April seven more were hired. At
the time of the hearing the Respondent had about 20 employees.
Gibbons, the dischargee involved herein, had approximately 6 years' experience
in woodworking prior to his 'employment by the Respondent. He and McMichael
had known each other for a similar length of time and had worked together at other
building and woodworking plants prior to the time that they were employed at
Preferred Homes. Early in February, McMichael introduced him to Scott Grant,
president of the Respondent, and the latter hired him. Gibbons became interested in
the Union shortly before his employment at Preferred Homes, and on February 2
he was one of a'group of millworkers who signed a petition to the Carpenters Union
requesting that it charter a local for millmen in Columbus. This petition resulted
in a charter being granted to the Charging Party herein on February 19. Gibbons
attended an installation ceremony held at the union headquarters that.night and the
following day arrived at the plant wearing a union button. Thereafter he wore this
insignia constantly while at work. It was undisputed that in the following weeks he
likewise engaged in discussions about the Union, both-on and off the job, with many
of the other employees.
Among those with whom Gibbons discussed the Union was McMichael, his
former coemployee who had become his supervisor. About the middle of March,
McMichael accompanied some of the Respondent's officials to Florida where they
had gone to observe the erection of the first house which the new plant had pro-
duced. Upon his return he had a conversation with Gibbons about the Union.
According to Gibbons, McMichael told him that during the trip, Charles H. Rice,
secretary-treasurer of the Respondent, had related a conversation with Grant in
which the president of the Company had stated that he would close the plant "before
he would go union" and that before he would place his health in jeopardy with labor
organizations he would close the shop and go back to Mississippi. Gibbons further
testified that at the close of this conversation McMichael stated to him, "Tommy .. .
I've got a good job here. . . . I was talking to Mr. Grant and he wants me to be a
company man, which I am going to 'be. . . You can work into something good
here yourself. . . If a union comes in here and you get all mixed up, you have
no one to blame but yourself." McMichael conceded that he had had a conversa-
tion with Gibbons about the Union at the time in question but he denied that there
had been any references to Grant's health or that he had stated that Grant would
shut down the plant if the Union organized the employees. According to Mc-
PREFERRED HOMES CORPORATION 1355
Michael , Gibbons asked him what Mr . Grant would do if the employees organized
and he told Gibbons that he could not make a statement on what somebody else
would do, "That he [Grant] might or he might not close it down." McMichael fur-
ther testified that he thereupon informed Gibbons that he did not intend to discuss
the union question with him any more "that I wanted to just forget about it and
if he mentioned it to me, I was just going to turn around and walk off and for him
not to even mention it at all." The conflict between the testimony of these two wit-
nesses will be resolved later herein.
As noted earlier, the layoff began on March 19 and only McMichael and Johnson
worked regularly during the ensuing period of approximately 10 days that the shop
remained closed. However, since the foreman had told the employees to keep in
touch with him as to the time when production would be resumed, many of the
crew reported to the plant each morning to find out when they could return to work.
Gibbons was among those who came to the, plant several times during the following
week. He credibly testified that each time McMichael told him to keep in touch
with him. On the morning of March 24, Gibbons was among the group of laid-off
workers gathered in a parking lot outside the shop and there succeeded in persuading
three of his coworkers to sign authorization cards in the Union. Henry Johnson
was one of -the three . He signed a card while sitting in Gibbons ' automobile when
it was parked in front of the plant. Johnson testified that when he reported for
work immediately thereafter McMichael questioned him as to what he had been
doing "out there" and that he then told the foreman that he had been talking with
Gibbons and that the . latter had given him a union card.4
On the morning of March 26 Gibbons came to ,the plant to inquire as to when
he would be called back to work. McMichael thereupon told him,that insofar as
Gibbons was concerned the layoff would be permanent . He then showed Gibbons
a length of board which had been cut a quarter inch too long. At this point
McMichael told him that because he had continued to make mistakes and to waste
material he was discharged. On March 30, Gibbons filed unfair labor practice
charges with the Regional Office of the Board . About a week later and at a time
when the Company was hiring additional employees Gibbons returned to the plant
to ask Grant if he could have his job back. According to Gibbons, Grant refused
to reemploy him and stated during the course of their conversation that the Company
had received the charges which he filed, that they were fictitious, and that it had a
record of his mistakes. At the hearing, Grant denied that he told Gibbons that the
Company had such a record . According to Grant, he did not consider Gibbons for
further employment because the latter had been very inefficient. He further testified
that in speaking to Gibbons on this occasion he told him that because of "the mess
you got us into originally and the mess you 've gotten us into now , which I hope
to get out of, I don't need you under any circumstances."
Gilford Woods and George Creel were among those hired by the Company during
the first week in April. Woods testified that he applied for a job about April 1 and
during 'a conversation with McMichael the latter asked him what he thought about
unions. According to Woods, when he gave a noncommittal response to this ques-
tion, McMichael stated that "Mr.-Grant- said he'd shut down before he would have
a union." Creel testified that in a preemployment conversation with McMichael
during this same period the latter - questioned him as to his union sympathies and
told him that he (McMichael) "didn 't like [ the] union out there and . Mr.
Grant said he would close up and go back to Mississippi before he would have a
union shop." McMichael denied that he had made any such statement to the
employees and with respect to his conversations with Woods and Creel testified
that they, rather than he, had initiated a discussion of unions during their interviews
with him. 'Creel was an uncle of Gibbons and because of this relationship it might
fairly be argued that his testimony was colored to support the contentions of his
nephew . Woods, however, was unrelated to Gibbons and, insofar as appears
from the record , was totally unknown to him. Both, in fact, were credible witnesses.
With some reluctance I have come to a contrary conclusion as to Mr . McMichael.
Throughout the course of his cross-examination it was apparent that his answers
were less than frank. In part this was due to a lack of alertness on his part and
, some of it, no doubt, was due to his difficulty in comprehending the questions. On
the other hand , when , after a number of objections to the cross-examination had
been sustained , and a question was put to him which 'he clearly understood, the
answer still lacked the forthright persuasiveness necessary to convince. For these
reasons it is my conclusion, and I find , that the testimony of Woods and Creel is the
more credible . Similarly, I find that, as between the testimony of Gibbons and
4 This quotation is from Johnson 's testimony winch was credible and undenied
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McMichael as to the conversations set forth above, the former is the more accurate
and reliable.
The testimony of another witness must now be considered. Jerry McLendon was
an employee who had been hired in March and quit of his own volition in May.
He testified that 1 day in March while he was working with Jerry Eiland, one of
the other employees, and McMichael, he asked the foreman whether he should
join the Union.' According to McLendon, McMichael replied, "Well, we've got one
man here that belongs to the union. . We can't fire him for belonging to the
union, but we can fire him for cutting lengths too short or too long." McLendon
further testified that shortly after Gibbons was discharged and while the employees
were eating lunch together McMichael stated, "Well, we just got rid of one man
that belonged to the Union." Eiland testified that he had not heard the remark
which was supposed to have been made in his presence and several employees 5 who
frequently ate their lunch with McLendon testified that they had not heard Mc-
Michael make,any comment after Gibbons' discharge such as McLendon attributed
to the foreman. McMichael denied that he had made the foregoing remarks to
McLendon. On the other hand, he testified that he had told Gibbons that "I couldn't
discharge him because he belonged to the Union, but I would if he continued to
make mistakes." He likewise conceded that on other occasions he might have
made this comment in the presence of other employees. In its brief the Respondent
attacks the credibility of McLendon on the ground that he was a neighbor of
Gibbons and had regularly ridden to work with him prior to Gibbons' discharge.
McLendon so testified and that fact should be considered in appraising his credibility.
At the same time it should also be borne in mind that at the time of the hearing
McLendon was no longer in the Respondent's employ, having quit voluntarily in
May.' From that standpoint, he might be considered more disinterested than others
still in the employ of one of the parties. His demeanor was that of a truthful
witness. Earlier herein I have found that McMichael was neither persuasive nor
convincing. Consequently, on the record before me, and because of the further fact
that the Respondent has not offered any material evidence that McLendon's char-
acter is such that he cannot be relied upon, I must find that his testimony is credible.6
B. Contentions of the parties; conclusions with respect thereto
The General Counsel alleges that Gibbons' dismissal resulted from his union
activities and was discriminatory, whereas the Respondent earnestly contends that
the termination was due solely to Gibbons' inefficiency and mistakes.
Gibbons was a "bill cutter" and as such did most of the wood sawing for the shop.
It was undenied that he had made a mistake in cutting the boards which McMichael
showed him on March 26 7 Gibbons further conceded that on one earlier occasion
he had miscut some building plates. Gibbons also testified that in two other
instances he had made mistakes in his woodcutting but attributed these errors to
McMichael and an employee named John Ball, on the ground that they had given
him the wrong specifications. Both of the latter individuals, however, credibly
testified that the measurements always came-from a cutting list that was supplied
with the blueprints for a house and that they had nothing to do with them. Mr.
Grant reviewed some of these instances in testifying as to the reasons which led up
to Gibbons' discharge. On the other hand, some of the mistakes which Grant in his
testimony attributed to Gibbons were not discovered until after the latter had been
discharged.8 McMichael conceded that although he had told-Gibbons about some
G Mileage Lee Hester, Preston Thomley, and John Ball.
6 On March 26, McLendon had another conversation with McMichael which must be
considered. During the course of the conversation and after McMichael learned that
McLendon customarily rode to work with Gibbons, the foreman asked, "How are you
going to get to work after Tommy's gone" The General Counsel appears to rely on this
testimony to establish that McMichael thereby implied to McLendon that Gibbons was
about to be discharged even before Gibbons had been notified to that effect This con-
clusion, however, is not borne out by the record. Gibbons was discharged about 8 a in on
Thursday, March 26 McLendon himself testified that the conversation with McMichael
took place on Thursday afternoon It is obvious, therefore, and I find, that, contrary to
the General Counsel, this conversation occurred after, and not before, Gibbons' dismissal
9 McMichael testified that the boards in question had been cut three-eighths of an inch
too short Gibbons, however, testified that at the time of his discharge McMichael told
him that the boards had been.cut one-fourth of an inch too long
,8 For example, Grant referred to some material which Gibbons had cut in 42-inch lengths
whereas the specifications required that it be cut in 50-inch lengths McMichael testified
that this mistake was not found until after he had dismissed the employee
PREFERRED HOMES CORPORATION 1357
of his errors he had never warned him that unless he improved he would be dis-
charged. During his cross-examination, McMichael, at one point, testified that he
had warned Gibbons about the poor quality of his work. However, in a pretrial
affidavit which McMichael had given and which was received in evidence, he con-
ceded that he neither warned nor reprimanded Gibbons. In this latter document
McMichael had averred "I didn't say anything to him [Gibbons] about his work
because he was a, friend of mine."
In its brief the Respondent points out that it is not for the Trial Examiner to
substitute his judgment for that of the Respondent as to how the latter should conduct
its business. That is, indeed, correct. Moreover, from this record it appears
that Gibbons' work was not outstanding and that the Respondent might very well
have chosen to discharge him solely for his mistakes. The question as to whether
Gibbons' discharge was harsh, unwise, or a reflection on the Respondent's business
judgment, however, is not before the Trial Examiner. The Respondent was free to
fire Gibbons for a good reason, a bad reason, or no reason, so long as the reason
was not, in fact, the employee's union activities. At the same time it is also pertinent
to recall an observation by the Court of Appeals for the Eighth Circuit that under
the Act here involved "a justifiable ground for dismissal is.no defense if it is a ,pre-
text and not the moving cause." N.L.R.B. v. Solo Cup Company, 237 F. 2d 521,
525 (C.A. 8).9 i'
The only issue, therefore, with which we are here concerned is whether the true
motivation for that discharge was Gibbons' mistakes or his union activity. In
assessing the record and the testimony of the witnesses to determine the reason for
the Respondent's dismissal of this employee, the following must be considered:
Gibbons' activities on behalf of the Carpenters, which at times were so persistent
as to annoy some of his fellow employees; the Respondent's knowledge of these
activities; 10 the statement of McMichael to several employees in March and April
that if a union came in Grant would close the shop; McMichael's declaration to
Gibbons in mid-March that "If a union comes in here and you get all mixed up,
you have no one to blame but yourself"; Gibbons' activities on March 24 when he
secured authorization cards from three employees and the interrogation of one of
the latter by McMichael immediately thereafter to determine what Gibbons had
been doing; the timing of the discharge which occurred only 2 days after this
incident; McMichael's statement to McLendon prior to Gibbons' discharge that
we've got one man here that belongs to the union . . . We can't fire him
for belonging to the union, but we can fire'him for cutting lengths too short or too
long"; McMichael's statement shortly after Gibbons was terminated that "we just
got rid of one man that belonged to the Union"; the fact that prior to the time when
Gibbons' secured signed authorization cards from three of his fellow employees
McMichael had never reprimanded Gibbons for any mistakes; and finally, the fact
that after his dismissal, when Gibbons sought reemployment at a time when the
Respondent was hiring additional men, Grant told him that he was not needed "under
any circumstances" because of "the mess you got us into originally and the mess
you've gotten us into now. ." On -the basis of the foregoing findings it is my
conclusion that although Gibbons clearly had no more than an average employment
record and the Respondent may have had some cause for dissatisfaction with his
work, the real motive for his summary discharge on March 26 was not his work-
record but his activities on behalf of the'Carpenters' Union. I, therefore, find that
by this action the Respondent violated Section 8(a)(3) and (1) of the Act. I
further find that Foreman McMichael's interrogation of Woods and Creel as to
their union sympathies, coupled as it was with his remarks to the effect that Grant
would close the shop if a union organized the employees, constituted interference,
5 See also N L'R B v L Ronney & Sons Furniture Manufacturing Co , 206-F. 2d 730,
737, where the Court of Appeals for the Ninth Circuit stated, "It is well settled that an
employer violates Section 8(a) (3) by discharging . . . an inefficient employee if the em-
ployer's reason for so doing is not the employee's inefficiency but his union affiliation or
activity " Cf. N.L.R B. v. C & J. Camp, Inc, et al. d/b/a Kibler-Camp Phosphate Enter-
prise, 216 F 2d 113, 115 (CA 5), where the court held that a justifiable cause for dis-
charge cannot shield discrimination in employment shown to have been unlawfully
motivated.
10 As found earlier herein, McMichael conceded having been well aware of Gibbons'
union activities. At the hearing Grant at first testified that he did not learn of Gibbons'
union affiliations until the Respondent was served with a copy of the charge in this case.
On cross-examination, however, he conceded that prior to Gibbons' discharge he had
heard what he described as "rumors" about the employee's affiliations.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restraint , and coercion of the employees ', organizational rights within the meaning of
Section 8 (a) (1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in unfair
labor practices, I will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act. Having
found that the Respondent discriminatorily discharged Thomas A. Gibbons on
March 26, 1959, I will recommend that the Respondent offer him immediate and
full reinstatement without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings that he may have suffered by payment
to him of a sum of money equal to that which he normally would have earned
from the aforesaid date of his discharge to-the date of the Respondent's offer of
reinstatement, less net earnings during said period. The backpay provided for herein
shall be computed in accordance with the formula stated in F. W. Woolworth Com-
pany, 90 NLRB 289.
I will also recommend that the Respondent, upon reasonable request, make avail-
able to the Board and its agents , all payroll and other records pertinent to an analysis
of the amount due as backpay.
Since I have found that the Respondent, by various acts, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in the Act and
particularly because the discriminatory discharge found herein goes "to the very
heart of the Act" (N.L.R.B. y. Entwistle Mfg. Co., 120 F. 2d 532, 536.(C.A. 4) ), and
indicates a purpose to defeat the self -organization of its employees, I am convinced
that the unfair labor practices committed are related to other unfair labor practices
proscribed and that the danger of their commission in the future is to be anticipated
from Respondent's conduct in the past. Accordingly, in order to make effective
the interdependent guarantees of Section 7 and thus effectuate the policies of
the Act, I will recommend that the Respondent cease and desist from in any manner
infringing upon the right of employees guaranteed by the Act.. May Department
Stores d/b/a Famous-Barr Company v. N.L.R.B., 326 U.S. 376, 386-392.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case , I make the following: -
CONCLUSIONS OF LAW
1. The Respondent is, and at all times relevant herein was, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminating in regard to the hire and tenure of employment of Thomas
A. Gibbons, thereby discouraging membership in the Union, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a) (3) of the Act.
4. By interfering with, restraining,' and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, 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 affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
PREFERRED HOMES CORPORATION - 1359
WE WILL NOT discourage membership in Millmen Local 2768, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, or in any other
labor organization of our employees, or in any other manner discriminate in
regard to their hire or tenure of employment, or any term or condition of their
employment.
WE WILL offer to Thomas A. Gibbons immediate and full reinstatement to
his former or substantially equivalent position without prejudice to any sen-
iorlty or other rights previously enjoyed, and make him whole for any loss
of pay suffered as a result of the discnmination against him.
WE WILL NOT threaten to close our plant In the event a union organizes our
employees.
WE WILL NOT coercively, or otherwise unlawfully, interrogate our employees
concerning their union activities or sympathies.
All our employees are free to become, remain, or refrain from becoming members
of any labor organization, except to the extent that this right may be affected by a
lawful agreement requiring membership in a labor organization as a condition of
employment.
-PREFERRED HOMES CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title) -
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
SUPPLEMENTAL INTERMEDIATE REPORT
On October 12, 1959, the Trial Examiner issued his Intermediate Report in the
above-captioned case. Four days later, on October 16, Gerald Thomas McLendon,
a witness for counsel for the General Counsel at the original hearing , was convicted
of a felony in the Superior Court of Muscogee County, Georgia. On January 22,
1960, after receipt of various motions to admit additional evidence filed by the
Respondent , and the responses in opposition thereto filed by the General Counsel,
the Board issued an order remanding proceeding for further hearing. This order
provided , in relevant part, that the record be reopened and that a supplemental
hearing be held for the purpose of receiving testimony as to McLendon 's conviction
of crime. It further provided that upon the conclusion of the hearing the Trial
Examiner prepare findings relative to .the alleged conviction and the change, if
any, required in the original Intermediate Report.
On March 3, 1960, the Trial Examiner received a stipulation signed by all counsel
and representatives of record in the original hearing, whereby they agreed that a
certified copy of McLendon's indictment, plea of guilty, and sentence, be received in
evidence in lieu of the presenting or taking of testimony at any further hearing.
By order, dated March 9, 1960, the Trial Examiner received in evidence the aforesaid
stipulation and court records, closed the record in the instant case, and allowed the
parties until March- 29, 1960, to submit briefs. Prior to the latter date, the
Respondent submitted a supplemental brief wherein it also incorporated by reference
two earlier briefs which the Respondent had filed in this matter. The General
Counsel did not file any brief or memorandum.
Upon the entire record in the case, including the above-mentioned exhibits and
the Respondent 's briefs, and after a reconsideration of the findings and conclusions
set forth in the original Intermediate Report , I make the following:
Supplemental Findings and Conclusions
On October 5, 1959, Gerald Thomas McLendon was indicted in the Superior
Court of Muscogee County, Georgia, for the offense of third-degree arson, alleged in
the indictment to have been committed on November 25, 1958, and to have consisted
of wilfully and maliciously setting fire to an automobile valued at $1,200.
McLendon pleaded guilty to this offense and on October 16, 1959, was sentenced
to serve 3 years in the State penitentiary. At the same time, however, the court
placed McLendon on probation for the duration of this sentence on condition that he
obey all Federal, State, and municipal laws and ordinances.
Evidence that a. witness has been convicted of a felony. is material to the question
of credibility and may be offered for impeachment purposes. It does not, however,
disqualify -a witness, nor require that his testimony, ipso facto, be discredited.
Rosen et at v. U.S., 245 U.S. 467. The Board has held that "Counsel may show
convictions for felonies or misdemeanors amounting to crimen falsi in accordance
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a well recognized rule of evidence." (Crown Corrugated Container, Inc., 123
NLRB 318, wherein the Board quoted from N.L.R.B. v. Baldwin Locomotive
Works, 128 F. 2d 39, 46 (C.A. 3)). Wigmore has referred to the crimen falsi of
the common law as including forgery, perjury, barratry, subordination of perjury,
suppression of testimony by bribery, conspiracy to procure the absence of a witness,
or conspiracy. Wigmore on Evidence (Third Edition), Volume II, Section 520.
Even the testimony of a witness convicted of one of the latter crimes, however,
must be considered by the trier of the facts. United States v. Margolis, 138 F. 2d
1002, 1004 (C.A. 3); Colt v. United States, 160 F. 2d 650, 651 (C.A. 5); United
States v. Montgomery, 126 F. 2d 151, 155 (C.A. 3); McCormick v. United States,
9 F. 2d 237, 239 (C.A. 8).1 After such consideration, it may, of course, be found
unworthy of belief. On the other hand, it may be accepted as credible, provided
it has been "scrutinized with care." United States v. Margolis, supra. The convic-
tion of McLendon was not for a crime of falsehood, nor was it of such a nature
as to discredit completely the credibility of this witness. Capitol Fish Company,
126 NLRB 980, footnote 3.
At the original hearing in July 1959, McLendon was produced as a witness for the
General Counsel and testified as to events which occurred in March of that year.
In the Intermediate Report, McLendon's testimony was credited over that of Fore-
man McMichael as to two alleged conversations. McLendon testified that in one,
prior to Gibbons' discharge, McMichael stated ". . . we've got one man here that
belongs to the Union.. . We can't fire him for belonging to the union, but we
can fire him for cutting lengths too short or too long." In the other conversation,
according to McLendon, the foreman stated, shortly after Gibbons' termination,
that "we just got rid of one man that belonged to the Union." McMichael denied
having made any of these comments to McLendon.
In reconsidering the credibility of McLendon in the light of the evidence as to his
conviction of a crime, I have reviewed the testimony of McLendon and McMichael
and their demeanor while testifying at the original hearing. In the Intermediate
Report issued on October 12, 1959, I found that McMichael was less credible than
several of the General Counsel's witnesses. My opinion of his reliability on the
stand and the weight to be accorded his testimony is unchanged. Moreover, I
remain impressed by the fact that, while a witness, McLendon withstood a skillful
and searching cross-examination , whereas McMichael did not. After a careful
scrutiny of the testimony of these two witnesses and a review of their comparative
demeanor at the time of their appearance on the stand, it is my conclusion as to
McLendon that, notwithstanding the newly received evidence of his criminal record,
his testimony is still more worthy of belief than that of his foreman.
In view of the foregoing conclusion and after a reconsideration of the entire record,
I conclude that the new evidence produced with respect to McLendon does not affect
or require modification in the findings of fact or of unfair labor practices heretofore
made in the original Intermediate Report.
' See United States v. Margolis , 138 F. 2d 1002 at 1004: "The appellant contends that
because Sands was an admitted perjurer his testimony should not have been considered.
Even a convicted perjurer, however, may testify competently. The'jury must determine
his credibility. The court must charge that the testimony of such a witness must be
scrutinized with care."
Butcher Boy Refrigerator Door Company and Carpenters Local
2674, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Cases Nos. 13-CA-2753, 13-CA-3107, and
13-CA-3113. June 00, 1960
DECISION AND ORDER
On February 12, 1960, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as iset forth in the copy of the
127 NLRB No. 160.