Skyline Mobile Homes

National Labor Relations Board - Board Decisions

Nov 7, 1972

200 N.L.R.B. 109 (N.L.R.B. 1972)

SKYLINE MOBILE HOMES
Skyline Mobile Homes and Dan L. Trillo and Frank
M. Blenden . Case 17-CA-4959-1-2
November 7, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On May 8, 1972, Administrative Law Judge 1
Robert E. Mullin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge did not credit the
testimony of Respondent's Supervisor Harold E.
Harth in regard to his denial of a conversation with
employee Thomas D. Brown. Crediting Brown's
testimony, the Administrative Law Judge concluded
that the interrogation of Brown by Harth as to his
union interests and as to whether he had signed an
authorization card constituted interference and
restraint within the meaning of the Act in violation
of Section 8(a)(1).
We find that this inquiry, standing alone, was too
insubstantial to warrant the finding of an 8(a)(1)
violation, and, accordingly, we shall dismiss the
complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the complaint herein be,
and it hereby is, dismissed in its entirety.
I The title of "trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner: The trial of this
case was held on April 4 and 5, 1972, in Winfield, Kansas,
pursuant to charges duly filed and served,' and an order of
consolidation, a consolidated complaint, and a notice of
I The charges in both of these cases were filed on December 27, 1971
2 All dates mentioned hereinafter are for the year 1971, unless otherwise
specified.
109
hearing issued on February 29, 1972. The complaint
presents questions as to whether the Respondent violated
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended. In its answer, duly filed, the Respondent
denied all allegations that it had committed any unfair
labor practices.
At the trial the General Counsel and the Respondent
were represented by counsel. All parties were given full
opportunity to examine and cross-examine witnesses, to
introduce relevant evidence, and to file briefs. At the
conclusion of the trial the Respondent made various
motions to dismiss the complaint. These were taken under
advisement. They are disposed of as appears hereinafter in
this decision. The parties waived oral argument and on
April 28, 1972, both the General Counsel and the
Respondent submitted able and comprehensive briefs.
Upon the entire record in the case, including the briefs of
counsel, and from his observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, with over 30 plants in various States of
the United States, is engaged in the manufacture and sale
of mobile homes at a factory located in Arkansas City,
Kansas, the only facility involved in this proceeding.
During the course and conduct of its business at the latter
plant, the Respondent annually purchases goods and/or
services valued at in excess of $50,000 from sources outside
the State of Kansas. From this same location the
Respondent annually sells products valued at in excess of
$500,000, of which amount products valued at in excess of
$50,000 are sold annually to customers located outside the
State of Kansas.
Upon the foregoing facts, the Respondent concedes, and
I find, that Skyline Mobile Homes is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio & Machine
Workers herein called Union, or I.U.E., is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
During the latter part of May 1971, the Union began an
organizational campaign at the Respondent's Arkansas
City plant. The attempt to organize the Respondent's
employees continued for approximately 2 months and
then, apparently, was abandoned. In December 1971,2 the
Respondent laid off 16 employees, including Dan L. Trillo,
Frank M. Blenden, and Steve Musson. The General
Counsel contends that the layoff of the three last named
employees was discriminatory. These allegations are
denied by the Respondent in their entirety.
During the spring and summer of 1971 the Respondent
had approximately 108 employees at the Arkansas City
plant. The work was divided among a number of groups,
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
known as the mill, floor, plumbing, shell, electrical,
cabinet, metal, side walls, and final finish departments,
Almost all of the employees were in one or the other of the
foregoing groups, with an average of from 8 to 12 men in
each such unit. Those so employed were paid on what
Mansel W. Fore, vice president and director of operations,
described as a group incentive rate. Thus, for the
specialized work which each group performed on a mobile
home, or coach, an estimated labor cost was fixed by the
Respondent. Thereafter, it also established a requirement
as to the number of coaches to be completed each day.
Each group was then expected to meet this quota and,
when it did so, all members of the group shared equally in
the total amount alloted for the labor services of that
group. Witnesses for the Respondent testified as to various
advantages of the group incentive rate. Thus, Mr. Fore
testified that in contrast with a plant incentive plan, where
the employees in one section may be doing well, but others
in the plant are not, and, as a result, all are penalized,
under the group incentive system, each group is on its own.
According to Vice President Fore, a feature of this system
is that it requires each member of the group to work closely
with all other employees in that group. Conversely, the
need for harmony and cooperation on the part of every
crewmember is at a premium.
B. The Union Campaign
The last week in May approximately eight of the
employees met at the home of Phillip Marrs, a coworker.
There, one Andy Earl, an uncle of Marrs and a representa-
tive of the IUE, endeavored to interest those present in
organizing a union at the plant. Dan L. Trillo was among
that number. The following week another meeting was
held, this one at a place called the Shamrock Cafe and
Motel. From 10 to 15 employees were present, among them
Frank M. Blenden, Steve Musson, and Trillo. All of those
present signed authorization cards for the union organizer
and were given IUE buttons to wear at the plant. These
were about the size of a half dollar and had the phrase
"IUE Shop Committee" printed thereon.
Thereafter, and over a period of about 6 weeks, several
other union meetings were held at weekly intervals. During
this same period a number of the employees wore the
union badges while at work, among this group being the
three employees mentioned earlier. Blenden testified that
twice during the early part of the summer, Ronald Wray,
the plant superintendent, read off to the employees a
statement as to the Company's reasons for opposing the
Union. However, the General Counsel did not allege that
in any such speeches had the Respondent trespassed on the
employees' rights under the Act.
As background evidence to establish the Company's
antipathy to employee organization, the General Counsel
produced several witnesses. Their testimony will now be
considered.
3 Geisler denied having questioned Sparks about unions at this time.
Sparks' credibility is discussed later in this decision.
4 Since this incident occurred more than 6 months prior to the filing of
the charge on December 27, 1971, it cannot serve as the basis for any unfair
labor practice finding
5 In the transcript Harth is referred to by several witnesses as "Dean"
Darrell Sparks testified that in May 1971 he applied for
employment and was interviewed by Walter Ray Geisler,
the plant manager. According to Sparks, Geisler asked him
how he felt about a union. Sparks testified that he
responded by telling Geisler he did not care for a union,
and that he had quit a job at a General Electric plant
because he did not like the union there. According to
Sparks, after this conversation, Geisler told him that he
was hired.3
David A. Rhodes, an employee, testified that on about
June 20, 1971, Geisler interviewed him for employment
and that during the meeting the plant manager asked him
what he thought of unions. According to Rhodes, he
responded with the comment that it made no difference to
him whether the shop had a union or did not. Geisler's
testimony as to this interview was not in conflict with the
account which Rhodes gave. The plant manager testified
that he told Rhodes at the time that the plant was not a
union shop and that the Company did not want one.
According to Geisler, Rhodes told him that the presence or
absence of a union made no difference to him. Geisler
testified that it was shortly after his interview with Rhodes
that he noticed employees wearing union buttons in the
plant 4
Thomas D. Brown, an employee during this period,
testified that shortly after July 4, his supervisor, Harold E.
Harth,5 came into the mobile home on which he was
working at the time and initiated a conversation about the
Union. According to Brown, although he endeavored to
ward off any such discussion by telling Harth that he was
not supposed to talk about the Union on company time,
the supervisor dismissed that objection by telling him that
their talk would be "off the record."6 Brown testified that
thereafter Harth asked him if he had signed a union card
and when he acknowledged having done so, Harth asked
him if he realized what he was doing. According to Brown,
he answered in the affirmative and went on to state that on
a prior job he had been a member of the Sheet Metal
Workers union in Wichita. Brown testified that thereafter
Harth concluded the conversation by telling him that he
did not think that Brown could know what he was doing
and that he "had better think it over before joining [the
Union ]." 7
Harth denied having had any such conversation with
Brown. Brown, however, was a credible witness and, in
comparison with the testimony of the employee, Harth's
denial was unpersuasive. Consequently, I conclude that
Brown's testimony represented a substantially accurate
account of the conversation between Brown and Harth.
This interrogation of the latter as to employee Brown's
union interests and as to whether Brown had signed an
authorization card constituted interference and restraint
within the meaning of the Act. I conclude and find that in
so doing the Respondent violated Section 8(a)(1).8
Darrell Sparks testified that late in July, or early in
August, his foreman told him to report to Geisler's office
Harth, the name, apparently, by which he was commonly known in the
plant
6 The quotation is from Brown's testimony.
7 The quotation is from Brown 's testimony.
8 Gregory Thomas, another employee, testified that during the summer
he once asked Harth what he thought of the Union. According to Thomas,
SKYLINE MOBILE HOMES
and that, after he did so, the plant manager questioned him
as to whether he was still opposed to a union. According to
Sparks, after he answered this question in the affirmative,
Geisler mentioned the possibility of a layoff, but assured
him that he had a good chance of staying on the payroll,
whereas those who were "wearing union badges around the
shop and trying to organize the union . . . would go before
I would."9 Sparks testified that Dale Vance, a member of
his group, was the only employee mentioned by Geisler as
a badge wearer. Geisler denied that he ever had any such
conversation with Sparks as the latter testified. The
resolution of this credibility problem is critical to the
decision of the principal issue in this case.
In December, as will be discussed later herein, the
Respondent had a layoff. Notwithstanding Sparks' testi-
mony that during the summer Geisler assured him that he
would be kept through the winter, Sparks, in fact, was
among those laid off, allegedly for poor workmanship and
a bad attendance record. Vance, on the other hand, was
retained. At the trial, and as a witness, Sparks was very
obviously a bitter ex-employee. He conceded that when
Geisler informed him in December that he would be
among those laid off he became very indignant and told
the plant manager "I would see him [later] and he wouldn't
like me when I did." During cross-examination, Sparks
denied that his antagonism toward the Respondent,
evident throughout his testimony, had been accentuated by
the Company's termination of his brother, allegedly for
theft of plant property. He conceded, however, that he
would like to see the Respondent lose the instant case.
Sparks acknowledged that he had a poor attendance
record, and it appeared from evidence brought out on his
cross-examination that his tendency to be tardy or absent
began shortly after he was hired and continued until the
time of his layoff in December. Under these circumstances,
it seems unlikely that the plant manager would have made
a point of calling Sparks into his office during July or
August to assure him that in the event of a layoff he would
be kept and that the prounion employees would be laid off.
Even at that point, it must have been apparent that Sparks
was developing a poor attendance record. Consequently, in
view of this fact, and the manifest belligerent hostility
which he displayed to the Respondent during his testimo-
ny, I cannot accept as accurate his testimony as to the
alleged conversation with Geisler during late July or early
August.
C. The December Layoffs
Various witnesses for the Respondent testified as to the
seasonal character of its operations and that customarily a
layoff occurred in November and December of each year.
the supervisor told him that he did not think that a union would be good as
far as pay was concerned, but that, in any event, "It is what you guys think
you want." Harth acknowledged having had such a conversation with
Thomas and testified that he told the employee that whereas he was not for
the Union himself, the matter was up to the men as to whether they wanted
one. The General Counsel did not allege this incident to be a violation of
Sec. 8(a)(1). In any event, it is my conclusion that in this conversation,
initiated by employee Thomas, the foreman's comments could not be
construed as tending to interfere with or restrain or coerce Thomas in the
exercise of his rights.
9 The quotations are from Sparks' testimony.
111
It was undisputed that this has been a characteristic of the
Respondent's employment history for a substantial period
of time. Thus, Ronald Wray, the plant superintendent,
testified that whereas during the summer of 1971 employ-
ment reached a peak of 108 men, at the time of the trial in
April 1972, there were only about 90 employees on the
payroll. On December 10 and 16, the Company laid off a
total of 16 employees. Among this number were Blenden,
Musson, and Trillo.
Of the employees laid off, the Respondent's records
reflect the following purported reasons for their separa-
tion: 11 were described as either poor workers or slow
workers,10 3 of this same number were described as having
a low service date," in addition to being poor workers, and
7 others were described as having the lowest service date in
their group.12 One of the latter number, viz., Sparks, was
also credited with a record of absenteeism . The purported
reason for Blenden's layoff was "poor workmanship" and
that he "constantly argued with fellow employees." For
Musson, the reason stated was "poor workmanship" and
"argued with other workers."
Blenden testified that, early in December, Supervisor
Harth told him that a layoff was about to take place and
that the Company would utilize it "to get rid of the goof
offs and troublemakers." Harth conceded that he had such
a conversation with Blenden, but asserted that he had no
one in particular in mind at the time he made the remark in
question.
To the individual records of the three employees whom
the General Counsel contends were discriminatees we will
now turn.
Dan L. Trillo
Trillo was hired in March 1969 and worked continuously
for the Respondent until his layoff on December 16, 1971.
During most of that period he was in the floor department
where he worked at laying carpet and tile. He signed a
union card at one of the early union meetings and
thereafter wore an IUE button at work during several
weeks in June and July. Other than wearing the badge,
however, he engaged in no other organizational activity.
He induced none of his coworkers to sign authorization
cards and conceded that he made little, if any, effort to
secure their signatures.l3
Trillo conceded that during the year prior to the layoff
he had difficulty in laying carpet in the mobile homes and
that a new type of jute back carpet introduced during the
spring or summer had been difficult to handle. It appears
that often, after Trillo finished the laying of the carpet, it
bulged or wrinkled and that various expedients had to be
adopted to get the carpet back in place. Sometimes, the
10 Le., Frank Blenden, Don Buell, Thomas Brown , Lewis Brown,
Michael Dailey, George Farris, Steve Musson, Kenneth Ramsey, Daniel
Sparks, Daniel Trillo, and Clifford Vaden.
11 Buell, Thomas Brown, and Farris.
12 George Far is, Jim Hobbs, Billie Jordan, John Postelwaite, Dale
Powell, Kenneth Ramsey , and Van Roger Richardson.
13 Thus, when Trillo was asked the following question he gave the
answer which appears below.
Q. Did you make any attempts to [secure coworkers signatures on
authorization cards ]9
A Yes, once in a while.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent called in an independent contractor who had
to restretch the carpet. This individual, one Larry Steiner,
was called as a witness and testified as to the number of
times that he had been engaged by the Company to redo
carpet laying work, most of which had been done by
Trillo.14 In the approximate 3 months from the time of the
layoff until the date of the hearing in the instant case,
Steiner testified that he had done substantially less work
for the Respondent than he had during comparable periods
in 1971. Steiner was credible and his testimony was
supported by invoices and charge sheets on which he had
been paid by the Company for his services.
Trillo also conceded that he had been reprimanded on a
number of occasions by both Mike Tennant, his foreman,
and by Geisler, the plant manager, for wastage of tile and
carelessness in measuring out the quantity needed. Fore-
man Tennant described Trillo as a "fast worker", but
testified that it was necessary to warn Trillo more than any
other worker in his group as to careless habits. He further
testified that on six to eight occasions he cautioned Trillo
that if he did not heed these reprimands he could be
terminated.
Steve Musson
Musson was an employee of the Respondent from
January 1969 until his layoff on December 16, 1971. He
was in what was known as the shell department and
worked at the installation of walls and cabinets. He
attended one of the early union meetings where he signed
an authorization card and thereafter wore a union button
while at work for about a month. From his testimony it
appears that, apart from wearing the button, Musson
played no active role in the union campaign. He testified
that he talked with from 10 to 15 employees about the
Union, but he made no claim to having secured any signed
authorization cards or having engaged in any other
organizational efforts on behalf of the IUE.
Musson testified that on December 16 Geisler called him
to the plant manager's office and told him that although he
was a good worker he was being laid off because he
"disrupted the crew" and "bad mouthed the Company too
much."
Musson conceded that he had been reprimanded from 10
to 15 times for faulty workmanship and infractions of the
plant rules. The principal tool which he used during the
greater portion of each day was an expensive piece of
equipment known as a screw gun.15 Musson conceded that
he had been reprimanded by both Geisler and Foreman
Harth for misuse of this tool. He also acknowledged that
on one or two occasions, in a fit of pique, he had thrown
the gun down on the ground. Some of Musson's fellow
employees described him as "moody," 16 "hot headed," 17
and as one who complained a lot about the Company.18
David Rhodes, a witness called initially by the General
Counsel, testified that the attitude and work of the
department was better after Musson left. John B. Dziedziy,
the employee at the plant who was responsible for the
repair and maintenance of tools, testified that Musson
brought him more screw guns to repair than any of the
more than 30 employees at the plant who used that
particular type of equipment. He also testified that since
Musson left the Respondent's employ, the number of screw
guns needing repairs had declined.
Frank M. Blenden
Blenden was in the electrical department . He was last
employed by the Respondent in October 1969 and worked
continuously until being laid off on December 16, 1971.
Prior to this last period of employment Blenden had
worked for the Respondent on two prior occasions, once
for a period of about a month in May and June 1965, and
thereafter from July 1965 to March 1969 when he quit
without notice.
Blenden went to one of the early union meetings where
he signed an authorization card and was given an IUE
button. Thereafter he wore the button, according to his
own testimony, for from 4 to 6 weeks while at work in the
plant. According to Blenden, at the same time , from 10 to
15 of his coworkers in the electrical department also wore
the buttons . Blenden likewise testified that from time to
time he passed out authorization cards to fellow employ-
ees, but he did not testify that he secured any signed
authorization cards from his coworkers.
Leon Williams , a fellow employee in the electrical
department, described Blenden as a very good worker who
was more proficient than one Larry Riggs, the employee
who subsequently replaced Blenden. He acknowledged
that Blenden shouted a lot while on the job, but also
testified that Blenden had been that way throughout his
employment with the Respondent . Williams further testi-
fied that he himself wore a union button during the
organizational campaign. He is still employed by the
Company.
Blenden testified that on December 16 Geisler called him
to the plant office and told him that he was being laid off
because he "yelled too much, disrupted the crew and ...
had a bad attitude." Geisler testified that when he rehired
Blenden in the fall of 1969 he cautioned him about the
problem of what he described as 'Blenden's "loud,
boisterous mouth" and habit of "bossing everybody."
According to Geisler, he warned Blenden that he would
face termination unless he did better in that regard than he
had in the past. Blenden testified that he had no
recollection of having received such a warning from the
plant manager at the time he was rehired . However, he
conceded that he had a practice of raising his voice while at
work. He also acknowledged that in 1971 Foreman Harth
warned him that he should work harder toward getting
along with his coworkers in the electrical group and that on
another occasion Geisler had reprimanded him for yelling
at the other employees in his department . Some of the
employees called by the Respondent testified that subse-
quent to Blenden 's departure the work of the electrical
group proceeded more smoothly.
14 Trio had one helper.
15 This was a power driven screwdriver.
16 David W Carson.
17 David Rhodes.
is Jim Brew.
SKYLINE MOBILE HOMES 113
Concluding Findings
Trillo, Musson, and Blenden were described by various
coworkers and some foremen as "good" workers, or "fast"
workers. Each one also, admittedly, had various weakness-
es. As the General Counsel has pointed out, of the 16 laid
off in December, only Musson and Blenden were charged
with having a bad attitude. From that the General Counsel
moves on to argue that the attitude which the Company
most disliked was their having embraced the Union during
the brief organizational campaign that was conducted
during the summer. As found earlier herein, however, both
Blenden and Musson at times engaged in arguments with
their fellow employees, and the charge that they were a
disruptive force in that connection had some basis in fact.
The central issue here, however, is whether the General
Counsel established by a preponderance of the evidence
that the three named employees were terminated because
of the Respondent's antipathy for their union activities. In
this regard, it is relevant to note that, viewed in the light
most favorable to the General Counsel's case, the organiza-
tional effort of these men was minimal at best, it occurred
almost 6 months before the layoffs and there was no
evidence in the record that these three men had established
any significant identification with the IUE among the
employees in the plant. Whereas they had worn union
buttons while on the job, admittedly many of the other
employees also had done so. Consequently, there is no
compelling evidence on which the General Counsel can
rely which would tend to establish that they were known to
the Respondent for their organizational efforts. As is the
case with most employees, their work records were not
spotless. The charge made in the layoff of Trillo that he
had been responsible for poor workmanship had some
foundation in fact . The same charge as to Musson and
Blenden was likewise supported by evidence in the record,
as well as the charge that the latter two were prone to argue
with their fellow employees . In view of all the foregoing, it
is my conclusion that the General Counsel has not proved,
by a preponderance of the evidence, that the three above-
named employees were discriminatorily terminated. Ac-
cordingly, it will be recommended that the allegations in
the complaint to that effect be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization , all within the meaning of the
Act.
2. By unlawfully interrogating an employee as to his
union interests and activities, the Respondent violated
Section 8(a)(1) of the Act.
3. The General Counsel has not proved that the
Respondent violated the Act, except by the specific acts
and conduct found herein to have been violative.
4. The aforesaid unfair labor practices described in
paragraph 2, above, are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that the
Respondent be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act.
[Recommended Order omitted from publication.]