United States Mobile Homes, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1969

174 N.L.R.B. 800 (N.L.R.B. 1969)

800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Mobile Homes, Inc. and United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Case 11-CA-3658
labor practices.
Upon the entire record in the case and from my
observation of the witnesses I make the following:
February 26, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On November 26, 1968, Trial Examiner George
A. Downing issued his Decision in this 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 set forth in
the attached Trial Examiner's Decision. He also
found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint, and
recommended that such allegations be dismissed.
Thereafter, the 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
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 no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions
and brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, United States
Mobile Homes, Inc., Henderson, North Carolina,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act
as amended was heard at Henderson, North Carolina, on
October 15, 1968, pursuant to due notice. The complaint
which was issued on August 30, 1968,' on a charge filed
on July 1, alleged that Respondent engaged in unfair labor
practices proscribed by Section 8(a)(1) and (3) of the Act
by certain specified acts of interference, restraint and
coercion and by discharging Edward Mosely on June 17
because of his union membership and activities.
Respondent answered on September 6 denying the unfair
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS; THE LABOR
ORGANIZATION INVOLVED
I find on admitted facts that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act,, and that the charging Union is a labor
organization within the meaning of Section 2(5) of the
Act.
IL THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
Organizational activities at Respondent's plant, first
begun by the Glass Blowers Union, were taken over by
Carpenters around April 25. The alleged unfair labor
practices herein occurred after that date and ended on
June 17 with the termination of Edward Mosely, who had
taken an active part in the Carpenters' campaign. In issue
herein are alleged instances of interrogation and of threats 3
and an issue whether Mosely was constructively (and
discriminatorily) discharged or whether he quit voluntarily
on being transferred to a different job. Much of the
evidence is in conflict.
B. Interference, Restraint , and Coercion
Edward Mosely testified that on May 1 Foreman Leon
Langley asked him what, he thought of the Union and
whether it would do any good. Mosely replied that he
thought the Union was a fine thing and that it could help
the working conditions. Thereupon Langley stated that
President Dale Miller said he would close the plant before
he would have a union in there. Langley flatly denied that
testimony and denied that he had any discussion with
Mosely about Union matters.
Mosely also testified that around May 25 Plant
Manager Jack Robertson asked him if he knew anything
about the Union, but he made no reply. Mosely testified
further that around May 31 he overheard Robertson ask
employee Tony Hughes whether Mosely knew anything
about the Union and Hughes replied that Mosely was
"the head man."
Robertson admitted that after hearing union talk
around the plant he talked with nearly all of the
employees (numbering 90), asking about working
conditions and to give the Company a chance to improve
them if anything was wrong . In that connection he
mentioned the Union and asked the employees if they
thought the plant needed a union . Robertson remembered
talking with Mosely and remembered asking Mosely
whether he thought all the people in the plant felt the
same way about the Union as he did. Robertson's
testimony contained no reference to the conversation with
Hughes to which Mosely testified.
'All events herein occurred in 1968 unless otherwise noted
'Respondent , a North Carolina corporation engaged at Henderson in the
manufacture and sale of mobile homes , sells and ships annually to
extrastate points products valued in excess of $50,000.
'No evidence was presented in support of an allegation that Respondent
created an impression of surveillance.
174 NLRB No. 118
UNITED STATES MOBILE HOMES
Frank Russell (who was also called as Respondent's
witness) testified that some 2 weeks before Mosely left
Foreman L. C. Smith talked with him about transferring
to many different jobs, explaining that he wanted the
employees to learn as many jobs as they could because the
Company was expecting to have a layoff. Smith continued
that there were some employees who were for the Union
or trying to get the Union in and that if Miller found out
who they were he was going to get rid of them.
Smith admitted discussing with Russell the advisability
of learning other jobs but denied stating that if Miller
found out who was in the Union he would get rid of them.
Smith testified that Russell questioned him about the
Union and he told Russell that Miller could not fire
anyone for participating in it or for signing a card . Russell
volunteered that he signed a card but expressed no fear
about what might happen because of it.
Concluding Findings
Resolution of the credibility issues in the foregoing
testimony begins properly with noting the respects in
which there are no conflicts and no denials. Thus,
Robertson's testimony tended to confirm Mosely's
account of the interrogation for he freely admitted
questioning Mosely about the Union as well as practically
all other employees. Furthermore, Robertson made no
denial of the conversation with Hughes to which Mosely
testified and Respondent also failed to call Hughes to
testify in denial. Attempts on cross-examination to cast
doubt on Mosely's ability to hear the conversation were
thus wholly unpersuasive. I therefore find that Robertson
engaged in the interrogation to which Mosely testified.
There remain the outright conflicts concerning the
threats which Mosely and Russell attributed, respectively,
to Foremen Langley and Smith, both of whom purported
to quote President Dale Miller.
There are two factors which serve to break the apparent
stalemate in this head -on conflict and which tip the scales
in favor of crediting the employees. The first is that Plant
Manager Robertson was contemporaneously engaged in a
plantwide campaign in which he was seeking to have the
employees disclose their union views and sentiments and
their knowledge of union activities and its supporters. The
conduct of Foremen Langley and Smith as Mosely and
Russell testified to it plainly fitted into that pattern,
reflecting that the foremen were following in less
restrained fashion the example of their superior.
Furthermore , Respondent reflected a willingness to accept
Russell's testimony on other matters for it called him, as
its own witness to give significant evidence in defense of
the termination of Mosely. See section C, infra.
I therefore conclude and find that by interrogating
employees concerning their union membership and
activities and by threatening that it would close the plant
and would get rid of employees who were trying to get the
Union in , Respondent interfered with , restrained and
coerced its employees in the exercise of rights guaranteed
by Section 7 of the Act . Winchester Spinning Corporation
v. N.L R.B., 402 F.2d 299, (C.A. 4).
C. The termination of Edward Mosely
Edward Mosely was employed from January 1967 to
June 1968 , in the cabinet department under Foreman
Lewis C. Smith . His active participation in union
activities and Respondent ' s knowledge thereof are
established by the findings made in sections A and B,
801
supra.
Mosely testified that, having heard on June 14 from his
son-in-law, George Wrenn, also employed in the' cabinet
department, a rumor that he was to be transferred to the
belt sander, he went to the plant on Saturday morning
and spoke to Plant Manager Robertson Mosely informed
Robertson that if he were put on the sander he would
have to quit because he could not stand the dust
Robertson replied he would see what he could do.
Mosely testified that on Monday morning Foreman
Smith called the employees together and informed them
there were going to be some transfers made and that those
who did not like it could quit. As the group dispersed
Mosely asked Smith what his transfer would be and
Smith informed him it would be to the belt sander.
Mosely told Smith of the conversation with Robertson on
Saturday morning and stated that if be were put on the
sander he would have to quit because he could not stand
the dust. Some 10 minutes, later Smith told Mosely that
when he finished the door he was working on to go to the
sander. Mosely replied that he would not do so and that
when he finished the door he would simply walk out and
leave the job. A few minutes later as he finished the door
he picked up his lunch and walked out.
Mosely testified that he returned to the plant some
hour and a half later to explain to Robertson that he had
quit because he could not work on the sander on account
of the dust. Though denying that Robertson suggested he
take the sander's job for a short while, Mosely testified
that Robertson stated he would see what he could do
about a job in another department and would let Mosely
know.
Robertson admitted that Mosely spoke to him on
Saturday about not taking the job on the sander, but
testified that Mosely did not state why he did not want to
work on that job and said nothing about dust or his
respiratory condition Robertson told Mosely he would try
to work something out on Monday, but Smith had
already made the transfers (and Mosely had quit) before
Robertson arrived at the plant around 8 a.m.
Robertson testified that it was on Tuesday that Mosely
returned to the plant, called him out to the car and
explained (for the first time) that he could not take the
job on the sander because of the dust. Robertson
suggested that Mosely take the job on a temporary basis
and stated that he would do his best to transfer Mosely to
another department in the near future: Mosely rejected the
offer, stating that he would rather quit and that he was
going to Raleigh. Being thus under the impression that
Mosely was going elsewhere for a job, Robertson did
nothing further to find a different job for Mosely and did
not inform Mosely he would get in touch with him.
Foreman Smith testified that he called the employees
together on the morning of the 17th and told them a
number of them were being transferred in order to get a
better knowledge of the various jobs, and no one
expressed any objection at the time. Smith said nothing to
the effect that anyone who did not like the transfer could
quit . Some 10 minutes later he told Mosely to go on the
sander and Mosely replied he would quit before he would
go there. Mosely did not mention his physical condition
and when he finished the door he was working on he
picked up his lunch and left.
The General Counsel offered no corroboration of
Mosely's testimony concerning the circumstances of his
transfer or of his quitting, but two witnesses, including
Frank Russell, corroborated Smith's testimony that the
latter said nothing to the effect that those who did not like
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their jobs could quit.
Both Robertson and Smith testified that it was
Respondent's policy to make frequent transfers of
employees in order that they might obtain a broader
knowledge of the particular department and of the plant
as a whole and a better ability to perform the various
jobs. The transfers (six in number) which Smith
announced in the cabinet department on June 17 were
made pursuant to that policy and others had been made at
various times both in the cabinet department and
elsewhere. That testimony was corroborated by some 6
witnesses called by Respondent, including Jimmie Allgood
and Frank Russell, both of whom testified to previous
transfers in the cabinet department. James Young testified
similarly that he had worked on every job in the cabinet
shop as well as on some jobs in other departments, and
Vance Rose, Jerry Taylor and Ray Claiborne testified to
their own transfers in other departments.
The remaining testimony concerned the matter of
Mosely's physical condition and his reaction to dust.
Mosely admitted that he himself sometimes operated the
sander for short intervals in connection with his regular
job and that there was also a substantial amount of dust
at times in an area called "bottoms" which was much
closer to his work station than the sander. Though Mosely
(and others) made complaints about the dust emanating
from the bottoms area, his testimony did not relate his
complaints to his alleged allergy to dust or otherwise to
his physical condition. Furthermore, Russell, recalled as
Respondent's witness, testified he knew Mosely quite well
and that he never heard Mosely say anything about his
physical reaction to dust and never heard him complain
about dust on the job.
As Mosely described his condition his breathing was
affected if he were in "too stuffy or dusty a place," but
the General Counsel made no attempt to establish that
Mosely's health would in fact have been jeopardized or
endangered by a transfer to the sander. The closest
approach was Mosely's testimony that several years before
while working in a cotton mill he developed a chest
condition which a doctor diagnosed as something like
arthritis in his chest, that the doctor gave him some pills
to take, and that he took them for a couple of months
while he continued to work at the cotton mill. Mosely quit
that job partly because of the dusty conditions and partly
because he got another job nearer home, and he never
again consulted a doctor concerning his alleged allergy to
dust.
working on the sander would in fact have endangered
Mosely's health. The most that Mosely claimed was that
his breathing was affected by working under conditions
which were too dusty, but he never raised the point before
even when complaining about the dust in the bottoms area
and he never told anyone about his alleged allergy to dust.
Indeed Mosely had been able to continue working on an
earlier dusty job after taking pills prescribed by his
doctor. If a health hazard actually existed on the sanding
job or was reasonably expected to, develop that fact could
be found only after a trial period and/or a seeking of
further medical advice. Significantly, Mosely's physician
did not find his continued unemployment on the earlier
dusty job to be hazardous.
Neither did the evidence establish that Respondent was
harassing Mosely, that the transfer was culmination of a
plan to force Mosely to quit, or that Respondent sought
deliberately to subject Mosely to conditions which it knew
would prove intolerable. Cf. Plastic Age Company, 111
NLRB 121, 14-3. Indeed, the decision to make the
transfers was made on Friday before Mosely registered
any protest to going on the sander, and without any
knowledge of his claimed allergy to dust.
I therefore conclude on the entire evidence that the dust
excuse was a mere afterthought which Mosely advanced
after his quit, that his claims of feared adverse affects
were greatly exaggerated, and that the General Counsel
failed to establish by a preponderance of the evidence that
conditions on the new job were to Respondent's
knowledge unbearable or were such as to endanger
Mosely's health. Thus the General Counsel failed to
establish that Mosely was constructively discharged, and I
find to the contrary that he voluntarily quit his job.
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. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1).
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
3. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
THE REMEDY
Concluding Findings
As previously noted the evidence established that
Mosely was an active supporter of the Union and that
Respondent was aware of the fact. Also previously found
were the threats which Foremen Langley and Smith
attributed to Respondent's president to close the plant and
to get rid of employees who were trying to get the Union
in. Such findings customarily form the conventional base
for inferring a discriminatory motivation in employer
actions which adversely affect the employment of union
adherents and will suffice here if it can be found on a
preponderance of the evidence that Mosely was in fact
constructively discharged. On that essential factor,
however, the General Counsel failed to carry the burden
of proof.
Thus, although the General Counsel's theory as argued
orally and by brief was that Mosely was not required to
put his health in jeopardy, no showing was made that
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
as provided in the Recommended Order below which I
find will be necessary to remedy and to remove the affects
of the unfair labor practices and to effectuate the policies
of the Act.
'Because of inconsistency in Mosely's testimony , I credit the denials of
Robertson and Smith of Mosely ' s claim that he informed them prior to his
quit that he would not take the sander's job on account of the dust. Thus,
Mosely explained as a witness that he returned to the plant to inform
Robertson that he had quit for that reason; but his testimony elsewhere
was that he had already informed both Robertson and Smith why he
objected to the job.
I also reject Mosely' s testimony that Smith made the statement on
Monday that those who did not like their transfers could quit . The General
Counsel attempted no corroboration of that testimony while Smith's
testimony was corroborated by two witnesses, including Russell.
UNITED STATES MOBILE HOMES
Upon the foregoing findings of fact and conclusions of
law and the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following:
RECOMMENDED ORDER
United States Mobile Homes, Inc., a corporation, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating coercively its employees concerning
their union membership, activities and sentiments
(b) Threatening its employees that it will close the plant
and get rid of employees who were trying to get the Union
in.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to form, join or assist
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing or 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.
2. Take the following affirmative action:
(a) Post in its offices and plant at Henderson, North
Carolina, copies of the attached notice marked
"Appendix."5 Copies of said notice on forms provided by
the Regional Director for Region 11, after being duly
signed by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.'
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "a
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
Appeals 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 the Regional Director for
Region 11, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
803
IT IS RECOMMENDED that the complaint be dismissed
insofar as it alleges that Respondent discharged Edward
Mosely in violation of Section 8(a)(3) and (1) of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the polices of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT interrogate our employees coercively
concerning their union membership, activities or
sentiments.
WE WILL NOT threaten our employees that we will
close the plant or that we will get rid of employees who
are trying to get the union in.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce our employees in the exercise of
their right to self-organization, to form, join or assist
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, or any other labor organization,
to bargain collectively with representatives of their own
choosing or to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such
activities.
All our employees are free to become or refrain from
becoming members of United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, or any other labor
organization.
UNITED STATES MOBILE
HOMES, INC.,
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1624 Wachovia
Building, 301 North Main Street, Winston-Salem, North
Carolina, Telephone 723-2911.