Valley Homes, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1966

160 N.L.R.B. 289 (N.L.R.B. 1966)

VALLEY HOMES, INC.
APPENDIX
289
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 policies of the National Labor Rela-
tions Act as Amended, we hereby notify our employees that:
WE WILL NOT interfere with the rights of out employees under the law by
offering or giving them wage increases for the purpose of influencing them
not to join or assist, to withdraw as members of, or to reject international
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local Union No. 452 , or any other union , as their collective bargaining
representative. However, the law does not require us to withdraw any wage
increases which have been granted.
WE WILL NOT threaten our employees with loss of employment benefits if
they join or assist the above-named Union, or any other union.
WE WILL bargain, upon request, with the above-named Union as the exclu-
sive representative of our employees in the following appiopriate unit:
All employees employed by J. C. Penney Co., Inc., at its warehouse located
at 195 West Nevada Place, Denver, Colorado. excluding office clerical em-
ployees, guards, professional employees, and supervisors as defined in the
National Labor Relations Act
WE WILL NOT violate any of the rights our employees have under the
National Labor Relations Act to join, or not to loin, a union of their own
choosing.
J. C. PENNEY CO., INC,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, 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, 609
Railway Exchange Building , 17th and Champa Streets, Denver, Colorado 80202,
Telephone 297-3551.
Valley Homes, Inc. and Truck Drivers, Chauffeurs and Helpers
Local Union No. 100 , an affiliate of the International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America. Case 9-CA-3672. July 09, x96'6
DECISION AND ORDER
On April 20, 1966, Trial Examiner Harold X. Summers issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
,within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in other unfair
labor practices alleged in the complaint and recommended dismissal
of those allegations. Thereafter, the Respondent filed exceptions to
the Decision and a supporting brief.
160 NLRB No. 29
257-551-67-vol. 160-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the brief, and the entire
record in this case and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
I In the absence of exceptions , we adopt pro forma the Trial Examiner ' s findings that
Respondent did not violate Section 8 ( a)(3) of the Act when It laid off employees Stans-
bety Ellis, and Jackson We also find it unnecessary to pass on the Trial Examiner's
conclusions as to the status of employees Still and Harrison as agents of the Respondent
TRIAL EXAMINER'S DECISION
This case was heard upon the complaint 1 of the General Counsel of the National
Labor Relations Board , herein called the Board , alleging that the Respondent , Valley
Homes, Inc., had engaged in and was engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, herein
called the Act . Respondent 's answer admitted some of its allegations and denied
others; in effect, it denied the commission of any unfair labor practices. Pursuant to
notice, a hearing was held before Trial Examiner Harold X . Summers at Cincinnati,
Ohio, on December 13 and 14, 1965. All parties were afforded full opportunity to
examine and cross-examine witnesses , to argue orally , and to submit briefs. Only
Respondent filed a brief, which brief has been fully considered.
Upon the entire record of the case , including my evaluation of the reliability of
the witnesses based upon the evidence and my observation of their demeanor, I
make the following-
FINDINGS OF FACT
I. COMMERCE
Respondent , sometimes herein referred to as the Company , is an Ohio corporation
engaged in the processing and manufacture of prefabricated building materials at
its plant in Sharonville, Ohio . In the course of its operations during the year pre-
ceding the issuance of the complaint , a representative period , Respondent purchased
and caused to be shipped to its Sharonville plant , directly from points outside the
State of Ohio, materials valued in excess of $50,000.
Respondent is an employer engaged in commerce within the meaning of the Act.
II. THE UNION
The Charging Party, Truck Drivers, Chauffeurs and Helpers Local Union No. 100,
an affiliate of the International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, herein called Local 100, is a labor organization within
the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background, setting, and issues
In 1965,2 the Company, which manufactures and procures housing components
which it makes available to builders at homesites , enjoyed the most prosperous
month of May in its history.
I The complaint was issued September 29, 1965 . The charge initiating the proceeding
was filed August 20, 1965
2 Unless the contrary is indicated , all dates referred to herein fall within 1965.
VALLEY,- HOMES, INC._ 291
On June 12, an areawide strike in the ready-mix concrete industry was called by
the International Union with which Local 100 is affiliated.
Meanwhile, on July 6, a labor organization, the, United Papermakers and Paper-
workers, AFL-CIO, filed a petition with the Regional Director for Region 9 of the
Board (Case 9-RC-6397), seeking certification as bargaining representative for
Respondent 's production and maintenance employees , including its truckdrivers. Six
days later, Local 100 filed a petition (Case 9-RC-6404), this one covering the
Company's truckdrivers only; and, on July 20, still another organization, Local 915
of the United Brotherhood of Carpenters and Joiners, filed a third petition (Case
9-RC-6417), in which the bargaining unit for which bargaining was sought con-
sisted of the production workers, excluding truckdrivers. Subsequently, the Paper-
makers' petition was withdrawn ; the Carpenters ' petition culminated , after an elec-
tion, in Local 915's certification as bargaining representative of the production and
maintenance employees ; and a hearing was held on Local 100's petition , after which
all action was and still is suspended because of the instant proceeding.
As time passed, the ready-mix strike began to affect the operations of area builders
and, in turn, the business of Respondent, who served these builders. In the latter
part of July, according to Respondent, a layoff was indicated; and, between July 21
and 23, inclusive, a number of employees, including three truckdrivers, were let go.
The concrete strike ended on August 16, by which time there had been no further
depletions in Respondent's working force. Next day, however, another employee, a
truckdriver, was discharged, and, not long afterward, he was replaced by an
employee transferred from the production group.
This case involves allegations that Respondent , through its agents, engaged in con-
duct constituting interference with, and restraint and coercion of employees in the
exercise of their self-organizational rights; and that the employment of the four
truckdrivers alluded to above was terminated because of their activities on behalf
of and their sympathies with Local 100. Involved, in addition to a determination
of what happened and the legal implications thereof, is the resolution of the
Respondent-agent status of several individuals whose acts are attributed to
Respondent.
B. Chronology of events 3
1. On June 19, at Local 100's hall, James Stansbery, Robert Jackson, Boyd
Ellis, and Jess Wilson, truckdrivers employed by Respondent, signed cards author-
izing Local 100 to represent them for purposes of collective bargaining.
2. "Right after the Fourth of July," between 9:30 and 10 a.m., Kenneth Morrison,
Respondent's shop superintendent,4 approached Robert Jackson as the latter brought
in a loaded truck and asked him if he had heard anything about a union . (He did
not mention the name of a union .) Jackson said he had not.
3. The Papermakers' petition for certification, mentioned earlier, was filed at the
Board's Regional Office on July 6.
4. On or about July 12, Ellis, Stansbery, and Wilson, eating their lunch, were
joined by Walter Still , another employee of Respondent . 5 The discussion, at one
point , centered about "the union ." Still asked Ellis if he had "signed for the union"
and, although Ellis vouchsafed no answer, several times asked why he had signed
and why he was for the union . Firther, he volunteered that he himself had a union
card-and that it did him no good. Ellis, in effect, said that Still ought to turn in the
card , that he did not deserve it. Then , Still made some predictions of things to come
should the Union come into the plant : "we" would be working 2 or 3 days a week
and "you" would be fired or laid off.6
5. On the same day-July 12-Local 100's petition for certification was filed.
6. Next day, Stansbery overheard a conversation between Edgar Harrison, whose
disputed employee-agent status is discussed infra, and Charles Robinson , one of the
Company's truckdrivers. The conversation, in relevant respect, was a one-sided one:
3 Unless otherwise indicated, these findings ate based upon uncontradicted, credited
testimony. They will not be repeated elsewhere In this Decision , later references to them
will take the form of the abbreviation "c)hron.," followed by the item number or numbers
being alluded to
4 Allegations in the pleadings establish, and I find, that Morrison is a supervisor for
Respondent.
5 Still's supervisory or agency status, which is in dispute, will be discussed below
9 This finding is based upon the uncontradicted testimony of Stansbery and Ellis Al-
though Wilson testified, he was not asked about the incident Still did not testify
292 DECISIONS OF NATIONAU'LABOR RELATIONS BOARD
Harrison asked'Robinson to find out about "the union ," who the leader was, and
"anything else"-if Robinson could identify "the instigator," he said , it would be
"a feather in [Robinson 's] cap." 7
7. At 4:20 p. m., the same day-July 13-Ken Morrison jumped onto the run-
ning board of Jess Wilson's truck and asked him if he knew anything about "the
Teamsters Union ." Wilson answered in the negative.
8. "Sometime in July"-the date can no more closely be pinned down than to
say that it fell prior to July 23, the day he was laid off-Robert Jackson was making
a delivery along with Walter Still. During the ride, Still told Jackson that if the
Union were to get in, he (Still) would be the only driver retained-plant men
would be sent along to unload the truck.
9. On July 15 , at the door shop, Superintendent Morrison asked Jess Wilson if
he knew anything about the Union , to which Wilson replied that he did not.8
10. About 2 weeks after the conversation between Morrison and Jackson noted
earlier (chron..2)-in other word 's, shortly after July 18-Morrison again spoke to
Jackson about a union , this time in the presence of truckdriver Cornelius Durham.
Morrison asked Jackson what he intended to do about the Union . Receiving no
reply, he said, "I thought I could count on you, and you let me down." 9
11. On July 20, the Carpenter' s petition was filed.
12. On July '20 or 21, at the timeclock just before worktime , Morrison again
asked Wilson about the Union; he asked if he knew who started it and if he knew
anything at all about it. Once again, Wilson disclaimed any such knowledge.'°
13. On July 21, 10 minutes before quitting time, Morrison called all the employ-
ees together . Explaining that the ready -mix concrete strike had "caught up" with
the Company and that work had fallen off, he said that a number of people were
being laid off; he did not know how long the strike would last nor how long it
would be before the lay-off personnel would be recalled . The names of those laid
off, he said, were on a sheet of paper he held, which list would be posted immedi-
ately after this meeting.
At meeting 's end, the list was posted . It bore the names of 8 to 10 persons , includ-
ing that of one of the truckdrivers, Boyd Ellis.
14. Two days later, on the 23d, Morrison told Robert Jackson that, because of
the strike , he (Jackson ) would have to "take a little vacation ." On the same day,
two or three production workers were also laid off.
15. On August 2, having just returned from 2 weeks of active service with the
Ohio Air National Guard, James Stansbery went to the plant. Having heard
(through Wilson , with whom he had kept in touch ) that he no longer had a job with
Respondent , he asked Morrison if this was true, and Morrison verified it.
16. On August 13, a formal hearing was held in connection with Local 100 's peti-
tion for certification. The Papermakers' petition, the first petition filed, was with-
drawn next day.
17. The ready-mix concrete strike ended on August 16.
18. On August 17, in the morning , Jess Wilson getting ready to take out a load of
materials . Morrison , commenting that that load was being delivered ahead of sched-
ule, said that, "if the union were here " he would have to send Wilson home.li
19. Later that day, Wilson was discharged , under circumstances discussed infra.
20. On August 18, Stansbery placed a telephone call to Al Opichka,12 office man-
ager for the Company, at the latter 's home. He said that he had been told that
Opichka had voiced the belief that he (Stansbery ) had "started" the Union, an accu-
sation which Stansbery said he resented because it reflected unfavorably on an uncle
and aunt through whom he had originally procured employment with Respondent.
Opichka conceded that he had , on several occasions , "blamed" both Stansbery and
Ellis, but that he now knew that the instigators were Jess Wilson and the Carpen-
7 This finding is based on Stansbery 's credited testimony . Neither Harrison nor Robin-
son were called as witnesses
B This is based on Wilson ' s testimony . Morrison , questioned on this aspect of Wilson's
testimony , "could not recall" the conversation.
9 This finding is based on Jackson 's testimony , as corroborated, in essence , by Morrison's.
10 This finding is based on Wilson 's credited testimony. Morrison , asked about the con-
versation , could not recall it.
ii This finding is based on Wilson's credited testimony . Morrison , who testified as to
several conversations with Wilson that day, made no reference to this one.
11 Whom I find to be a supervisor within the meaning of the Act.
VALLEY HOMES, INC. 293
ters' steward in the production unit. Continuing , he said that , if the Union got in,
you-singular or plural unknown-would be hurting a lot of employees of the Com-
pany ( since ) Chapin Jones (company president ) would very likely sell the shop.
21. On or about August 21 , Ellis visited the plant. Encountering Morrison, he
asked if they might talk a minute. Then he asked if Morrison knew when he would
be recalled to work ; and Morrison replied that he had no idea. Ellis repeated his
question , saying he had a family but no income; again , Morrison said he did not
know when the Company would do any more hiring and he suggested it might be a
good idea for Ellis to seek employment elsewhere . At the conclusion , Ellis said, in
effect, "If you 're not bringing me back because of the union , I had nothing to do
with it," and Morrison assured him that was not why he.was laid off.13
C. The Company 's responsibility for conduct of Still and Harrison
Walter Still figured in two incidents (chron . 4 and 8 ) and Edgar Harrison in one
(chron . 6), which incidents , possibly, have a bearing on the issues herein . While not
alleged as unfair labor practices , evidence of the incidents was offered and received
as background material for the light they might throw on Respondent 's attitude
toward unions or on Respondent 's knowledge of union activities . Their relevance, of
course , depends on whether Still's and Harrison 's acts are imputable to Respondent.
Both Still and Harrison are classified by Respondent as truckdrivers.
According to a "driver seniority " list prepared by the Company as of July 16, Still
was hired on April 5 , 1965. Harrison , on the other hand, was hired in the fall of
1961 , although , because of a break in service , his "driver seniority" dates from Sep-
tember 18, 1962. Both are considered "the older hands , 14 they know more about
what is going on around the shop."
While both men are supposed to be truckdrivers , there is some question as to how
much truckdriving either did during June and July, the period in question. There
were more truckdrivers than trucks and, I find , they did not drive trucks until and
unless all other truckdrivers present were given trucks to drive. Instead, Still was
mainly occupied in the trim shop and Harrison 's duties kept him in the yard, and
each gave work orders to tiuckdrivers.
But the available evidence falls far short of demonstrating that, during any rele-
vant period , either was a supervisor within the meaning of the Act. One witness tes-
tified that , when he was hired , Harrison was introduced as yard foreman but not as
a boss. (His making the distinction indicates to me that he regarded the former as
on a higher level than the latter. ) Be that as it may, Still spent much of his time
working on interior trim and helping load it onto trucks; and Harrison was mainly
occupied in handling materials , by forklift and otherwise , in Respondent 's yard. Nei-
ther had authority to effectuate personnel changes or effectively to recommend such
action, and neither gave orders which required the independent exercise of discretion.
On the other hand, both these men , during the months of June and July, were
used extensively to transmit instructions and orders from Morrison to the truck-
drivers, telling them what and how to cut trim , what to load, and what trucks to take
out. In Morrison 's own words:
Well, in June and July, well I don't know if it took both months but for about
a four-week period , I think Mr . Jones said , "We are awfully busy," something
that I hadn 't experienced before as long as I had been there . . Edgar Har-
rison and the next man on the list, Walter Still, being older drivers, I used them
to break in the new drivers .
Every morning I would tell Ed or Walt what to do , what driver to take,
and how to break him in, and if all six drivers or all drivers showed up that
day I would keep Ed and Walt in the shop helping me load , getting trim loads
together . . . . They would , on the days that they were in [ the shop], they
13 In making this finding, I rely on the testimony of both Ellis and Morrison, who were
in substantial agreement « ith this exception . Ellis' version of the mention of a union was
that Morrison asked Ellis if he was for the Union and that Ellis answered in the af/irina-
tine. This bit of Ellis' testimony was belatedly and with difficulty drawn from him , more-
over, the incident occurring , as it did, the day after the instant unfair labor practice
charge was filed, this version lacks plausibility . I do not credit it
14 This is not apparent from the seniority list , particularly in Still ' s case ; but, the state-
ment went unquestioned . I can only assume he worked for Respondent in some other area
prior to April 5.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would carryout orders for me, they would load trucks, and I would tell Ed or
Walt, in my office, I'd say, "When Durham comes in" or "When Charles comes
in, tell him to take such and such truck and deliver it to" the place where I
wanted it to go, just to save me all the steps running all over the shop , keeping
up with all these fellows . .
[Asked if the two were authorized to transmit orders from him to employ-
ees:] Yes, they would carry orders from me to employees. I use quite a num-
ber of employees for the same thing because I'm the only supervisor in the
plant and at the time [we] employed about 40 people and I just could not keep
up with running all over the building telling everybody . I tried to have people
carry orders for me . .
[Asked how employees knew he had given authority to transmit orders:]
Well, I never received any argument from any of them. I never had any trouble
Maybe once or twice somebody would come back and say to me, "Did
'you tell him to tell me that," but it did not happen very often ... . I'd tell
them yes; I told him to tell you that, go ahead and do it ... .
Morrison also gave testimony bearing upon the question of whether Still's and Har-
•rison's roles- as carriers of communications between management and the truckdriv-
ers encompassed , or appeared to encompass , the area of labor relations as well as
routine work problems:
[Asked if Still or "Harrison had ever reported to him they had talked to
employees about unionism:] I heard that they did talk to a couple of people,
yes
[Asked how employees could distinguish between the source of Still's and
Harrison's work-orders and the source of their union discussions :] Well, in the
first place if they were giving a work order from me they would start out by
saying, I would imagine, that "Ken told me to tell you to do this," "Ken told
me to tell you to take this truck out ...." 15
On the' preponderance of the evidence in this record, I find that, at least during
June and July, Still and Harrison were cloaked with the apparent authority to con-
vey information, from management to the truckdrivers, not only with respect to
workorders,but also with respect to any matters, such as unionization, which might
bear upon their employment relationship. To the extent they have any bearing on the
issues herein, then, I would attribute the conduct of Still and Harrison (as found
above) to Respondent.
D. Interference, restraint, and coercion
Respondent , in its answer , as amended at the hearing, admitted that Kenneth Mor-
rison and Al Opichka were supervisors for Respondent but denied that they were its
agents. Having found that they are supervisors, I find further that, in their activi-
ties which are the subject of this proceeding, they were acting for and on behalf of-
in short, as agents of-Respondent.
I find, as alleged in the complaint, that the conduct of Kenneth Morrison, con-
sisting of his conversation with Robert Jackson shortly after July 4,16 his conversa-
tion with Jess Wilson on July 13,17 his conversation with Jess Wilson on July 15,18
and his conversations with Jackson and Wilson shortly after July 18 and on July 20
or 21 , respectively, 19 constituted interrogation of employees regarding their union
activities or sympathies. I find further that a preponderance of the evidence supports
the complaint 's allegations that , on August 17, Morrison told an employee that, if
a union represented the employees , the employee would not enjoy a privilege then
available; 20 and that, on August 18, Opichka told an employee 21 that he had erro-
neously accused him of initiating union activities and threatened that Respondent
18 Morrison then went on to explain that, when he testified on the previous day that
he was aware Still and Harrison had been talking about the Union, he meant that he was
aware everyone at the plant was talking union.
30 See chron. 2. The date alleged in the complaint was on or about July 12.
17 See chron. 7.
's See chron 9.
19 see chron. 10 and 12.
20 See chron. 18
21 A term which encompasses laid-off employees
VALLEY HOMES, INC. 295
would sell its operation if a union should be successful in organizing its employees.22
Considering the clear meaning of the statements made, viewed in the light of their
timing and of the union animus demonstrated by other acts 23 as well, I find that
these interrogations and threats of reprisal constituted interference with, and restraint
or coercion of, employees in the exercise of their self-organizational rights.
E. The terminations of employment
The complaint alleged that Respondent discharged James Stansbery on July 17,
Boyd Ellis on July 21, Robert Jackson on July 23, and Jess Wilson on August 17,
and thereafter failed and refused to reinstate them, because of their activities on
behalf of and sympathies with Local 100.
The answer denied that the four "were terminated" for unlawful reasons and
averred that each of them was "separated for cause." Further elucidating at the
hearing, Respondent took the position that Stansbery, Ellis, and Jackson were laid
off because of a lack of available work and that Wilson was discharged for cause,
all on the dates indicated.
The pretermination union activities, such as they were, of Stansbery, Ellis, Jack-
son, and Wilson consisted primarily of their having signed Local 100 authorization
cards and of their having "discussed the union" among themselves, in the presence,
on one occasion, of,Walter Still. Despite Respondent's contention (made through
witnesses) that it was unaware of the union activities or interests of any individual,
I find that Respondent was aware of the activities and interests of each of these
four. This finding is based on the concentrated campaign of interrogation of and
threats directed at them, the indication that surveillance of employees on the sub-
ject was sought by management, and on the size of the installation.
In view of the union animus displayed by the unfair labor practices heretofore
found and by the several other indicia of such animus alluded to earlier, and in
view of the suspicious timing of the terminations,24 I have carefully scrutinized the
assigned causes for those terminations.
As earlier found, May was a peak-activity month for Respondent. At that time,
the Company's work force consisted of 36 employees it regarded as production or
maintenance workers and 8 it regarded as truckdrivers.
The credited, uncontradicted evidence, oral and documentary, establishes that the
Company's business was affected by the ready-mix concrete strike which began
June 12. Although many of the area builders, in anticipation of the strike, had
poured foundations in advance of schedule, the continuing strike gradually made
itself felt, first to the builder, and then to Respondent, their supplier. Within 2
weeks, the effects were perceptible, and, during the last week in June, Respondent's
business fell off substantially. (Sales for the entire month of June were down 81/z
percent from those of May.) And the decline continued in July-sales for that
month were 87.6 percent of May's. Economic conditions, I find, called for the layoff
of a number of employees.
Early'in July, Respondent's work force was the same as it had been in May.
Specifically, eight persons were classified as truckdrivers. Available for use by these
drivers were six trucks, but as earlier found, Walter Still and Edgar Harrison would
drive trucks only when one or more of the others did not report for work.
' The four drivers most recently hired-in inverse order of seniority-were Stans-
bery, Ellis,25 Charles Robinson, and Jackson.
22 See chron. 20.
29 See chron . 4, 6, and S.
24 Filing of Local 100's petition, July 12 ; Still's interrogation of and threat expressed
to the four drivers here involved, same day 'Harrison's adjuration to a fellow empinvee
to procure union information, next day ; interrogation by Morrison, on the 13th ; Stans-
bery's layoff, July 17; another threat and tivo further acts of interrogiation in the next
3 days; the filing of the production-maintenance petion, July 20, interrogation of Wilson,
July 20 or 21 ; Ellis and Jackson's layoffs, July 21 and 23, respectively , no relevant action
for several weeks ; the representation case hearing, August 13 . Morrison's antiunion
comment to Wilson on August 17, followed by the latter's discharge later that day
a EIIis had worked for Respondent on several earlier occasions, and the hiring date
which is the basis for this finding is that of his most recent hiring Uncontradicted testi-
mony of Respondent witnesses was to the effect that continued seniority status does not
survive a break in employment.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stansbery's last day of work for Respondent was Friday, July 16. After that day,
he reported for a 2-week stint of active duty with the Ohio Air National Guard.
On or about July 17, Stansbery was among those selected for the layoff which
was shortly to be effectuated. Since he was not at work (on July 21) when the
initial mass layoff was put into effect, Respondent considers him to have been laid
off on the 17th itself. The first notice came to him, while on guard duty, from
fellow-driver Wilson; as found earlier, the news was officially verified on Stansbery's
return on or about August 2.
Stansbery was selected for layoff, assignedly, because he was low man on the
truckdnver totem pole and because of the irregularity of his attendance.26
I find that the reason assigned by Respondent for Stansbery's layoff is a plausible
one. The General Counsel has not, by a preponderance of the evidence, shown that
Stansbery's employment was terminated for any other reason.
On July 21-see chron. 13-8 or 10 persons, including truckdriver Boyd Ellis,
were laid off.
Ellis was (last) hired by Respondent on June 10. The assigned reason for his
being selected for layoff was the fact that-Stansbery no longer employed-Ellis
was the truckdriver with the least seniority.
Ellis was considered by management to be a good worker. On the other hand,
in view of his two employment breaks in the past, occasioned by voluntary quits,
his reliability was considered questionable. Therefore, the known quality of his work
did not serve to justify Respondent in deviating from the principle of seniority,
which principle, it appears, was followed where possible.
I find that the reasons assigned by Respondent for Ellis' layoff are plausible ones
and that the General Counsel has not, by a preponderance of the evidence, shown
that Ellis' employment was terminated for any other reason.
The layoffs of July 21 did not prove sufficient, and 2 days later, a number of
others, including truckdriver Jackson, were laid off.
Jackson was not the driver with the least seniority at the time, but he was selected
because, although he "could do a good day's work," he could not drive a tractor-
hence, was not as valuable to the Company as Robinson, hired later.
Although this is a more suspicious case than the last two, I cannot say that the
evidence of a violation preponderates. The General Counsel has not met his burden.
After these layoffs were effectuated, Respondent's employment rolls had fallen to
approximately 30 production maintenance employees and 5 truckdrivers.
On August 17, 10 minutes before quitting. time, truckdriver Jess Wilson was
discharged.
At 2:30 p.m. that day, Wilson had come in from a truck trip and prepared to
eat his lunch. Morrison told him to finish his lunch-that he wanted to talk to him.
After Wilson had completed his lunch, Morrison asked him about some damage
done to the bumper of Wilson's truck. When Wilson disclaimed knowledge of any
damage, Wilson said that Walter Still had told him that the damage occurred when
Wilson had permitted the truck to be pulled out of the mud by its bumper. Wilson,
while not denying that he was at fault, repeated that he was unaware of it. As they
walked to the truck, Morrison reminded him of an incident 1 week earlier in which
Wilson had damaged a door he was delivering and also of an occasion, more recent,
on which Wilson had delivered some material to the wrong location. "You know,"
he said, "I can fire you for these reasons."
After they had inspected the truck-and Wilson still denied any knowledge of the
damage-Morrison went on at length about Wilson's performance. In Wilson's
words, "He got real hot . . . bawled me out [over] this and that, and naturally, I
got hot . . . but there wasn't no namecalling or nothing like that." When Morrison
repeated, "I could fire you," Wilson said, "Well, go ahead, fire me then."
Morrison went to discuss the matter with Company President Jones and, a few
minutes later, he returned to Wilson with, "Punch out, you're through." Wilson left.
Before he left, however, he asked Morrison for the reason for the discharge, and
Morrison told him. There was irrelevant dispute as to the reasons given him: he
testified that Morrison gave him but three reasons-the damage to the door, the
damage to the truck, and an incident involving his having run over a customer's
freshly poured foundation and leaving his trailer at the wrong spot on the builder's
premises-while Morrison testified he gave these three reasons plus a fourth-the
° Company records showed he was absent a number of days since he was hired-perhaps
4 or 5, excluding 1i/_, weeks he missed due to an injury on the job.
VALLEY HOMES, INC. 297
misdelivery. It becomes unnecessary to resolve this issue of credibility since, at any
rate, Respondent here takes the position that all four incidents entered into the
decision to discharge.27
The circumstances surrounding the four incidents were the subject of extended
testimony at the hearing.
1. On July 22, Respondent received a telephone complaint from a new customer
to the effect that its driver, making a delivery , had run over a "green" foundation 28
President Jones went to the site to investigate . He found that Wilson-for he was
the driver-had pulled onto what would eventually be the driveway to the resi-
dence under construction , had "spotted" his trailer at the entrance to the ( future)
garage,29 and had then run his tractor into and out of the garage area , over the
front and the rear foundations . (It turned out that the sole damage was to the
customer 's feelings .) Also, the customer complained , the trailer was spotted at
the wrong place.
Next day, Jones, in Morrison 's presence , reprimanded Wilson over the incident
and, although Wilson protested he had spotted the trailer where the customer
wanted it, warned him against any more troubles of this nature.
2. On a date undetermined , but between August 13 and 17, Wilson damaged a
double-door. The door consisted of two doors ( six panels ) set in a door jamb, 5
feet by 6 feet 8 inches. On all previous deliveries of double doors, Wilson had
been given a helper. Now, he asked for help but was told that everyone was too
busy. In unloading the door at the customer's site, he damaged it. Morrison spoke
to Wilson about it, saying he did not know whether he would mention it to Jones
(who was out of town), but he said he could tolerate no more mistakes.
3. At or about the same time , Wilson delivered some materials intended for one
customer to another customer for whom other materials were being delivered
simultaneously. This, a common mistake among Respondent 's drivers , resulted in a
loss of the misdelivered materials.
4. Just when the truck bumper was damaged is unknown . (The same bumper
showed evidence of prior damage.) However, Morrison believed-because it had
been reported to him by Still-that Wilson had, several days before the discharge,
permitted the truck to be pulled from the mud by a chain hooked to this bumper,
contrary to orders to employees to put pulling strain only on the chassis and at
hooks designed for that purpose.
Respondent concedes that none of these incidents was serious enough to warrant
a discharge but that the combination was overwhelming-that the last incident was
the trigger but that all four incidents entered into the decision.
The plausibility of these incidents as the cause of the discharge must be viewed
in the light of a number of circumstances : (a) The "foundation" incident had
occurred 4 weeks earlier, at a time of a mass layoff-yet, it was not considered
serious enough to enter into the selections for layoff at that time , (b) the door
damage, I find resulted from the failure of Respondent to furnish the requested
help; the plant superintendent so lightly regarded it that he considered letting it go
unmentioned to the working head of the Company, ( c) on this record , misdelivery
of materials is a frequent occurrence , ( d) Wilson was considered the type of
worker who did everything quickly. ( Morrison : "I liked that about him . he
always seemed to get back quicker than anyone else when he made a delivery
:'); and finally, ( e) Wilson , by this time, was marked as the union ring-
leader-see chron. 20. I find that the assigned reasons lack plausibility and, in fact,
are pretextual.
Upon the entire record and on what I am convinced is a fair preponderance of
the credible evidence , I conclude and find that Respondent discharged Jess Wilson
and thereafter failed to reinstate him because of his activities on behalf of and
sympathies with Local 100, thereby discouraging membership in Local 100 and
interfering with, restraining , and coercing employees in the exercise of their self-
organizational rights, in violation of Section 8(a)(3) and (1) of the Act.
'According to Respondent , there were other blemishes on Wilson ' s performance but
these did not enter into the decision
^ "Green" concrete is relatively recently poured concrete which, although already
hardened , still may show defects if subjected to premature strain
a"Respondent , in making a delivery , would leave the trailer full of materials for the
customer to unload as needed.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing factual findings and conclusions, I come to the following:
CONCLUSIONS OF LAW
i
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Local 100 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 Jess Wilson by termi-
nating his employment on August 17, 1965, because of his interest in and sym-
pathies with Local 100, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct, by interrogating employees concerning their union
activities, sympathies, and membership, by threatening employees with loss of priv-
ileges or with a termination of operations if a union should become the employees'
bargaining agent, Respondent has interfered with, restrained, and coerced employ-
ees in violation of Section 8(a) (1) thereof.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
6. Except for the above, Respondent has not engaged in unfair labor practices
as alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it be ordered to cease and desist therefrom and to take cer-
tain affirmative action in order to effectuate the policies of the Act.
Having found that Respondent discriminated with respect to the hire and tenure
of employment of Jess Wilson, I shall recommend appropriate action. I shall rec-
ommend that Respondent offer him full and immediate reinstatement to his for-
mer or substantially equivalent position without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of earnings suffered by him
because of the discrimination by payment to him of a sum of money equal to the
amount he would have earned from the date of his discharge to the date of
Respondent's offer of reinstatement, less his net earnings during said period. Back-
pay shall be computed on a quarterly basis in the manner prescribed by the Board
in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 per-
cent per annum computed quarterly.
As the unfair labor practices committed by Respondent are of a character strik-
ing at the roots of employee rights safeguarded by the Act, it will also be recom-
mended that Respondent cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, and pursuant to Section 10(c) of the Act, I recom-
mend that Respondent, Valley Homes, Inc., of Sharonville, Ohio, its officers,
agents, sucessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organization by discriminating in
regard to hire, tenure, or other conditions of employment.
(b) Interrogating employees as to their union activities, sympathies, and
membership.
(c) Warning employees of a loss of privileges or of a termination of operations
if a labor organization should become their bargaining agent.
(d) In any other manner, interfering with, restraining, or coercing their employ-
ees in-the exercise of their right to self-organization, to form labor organizations,
to join or assist any labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to refrain from any
and all such activities except to the extent that any such right may be affected by
an agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer Jess Wilson reinstatement to his former position even though this may
necessitate displacement of a present incumbent (or, if his former position no longer
VALLEY HOMES, INC. 299
exists, to a substantially equivalent position), -without prejudice to his seniority or
other rights and privileges.
(b) Make him whole for any loss of earnings'suffered by reason of the discrimina-
tion against him, in the manner set forth in the section above entitled "The Remedy."
(c) Notify the above-named employee if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon application in accord-
ance with-the Selective Service Act and the Universal Military Training and Serv-
ice Act, as amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board, or its agents, for
examination and copying, all payroll records, social security records, timecards,
and personnel records and reports necessary to analyze the amount of backpay
due and the right of reinstatement.
(e) Post at its place of business at Sharonville, Ohio, copies of the attached
notice marked "Appendix." 30 Copies of such notice, to be furnished by the Regional
Director for Region 9, after being duly signed by an authorized representative of
Respondent, shall be posted imediately upon receipt thereof, and be maintained for
a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that such notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 9, in writing, within 20 days from
the date of receipt of this Decision, what steps the Respondent has taken to comply
herewith.31
IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges
violations of the Act not heretofore remedied in this Recommended Order.
ao In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice will be further amended by the substitution of the
words "a Decree of the United States Court of Appeals Enforcing an Order" for the words
"a Decision and Order."
al In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to said : "Notify the Regional Director for Region 9 in writing, within
10 days from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tion Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Truck Drivers, Chauffeurs, and
Helpers Local Union No. 100, an Affiliate of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other
local organization, by discriminating as to the hire, tenure, or any other term
or condition of employment of any of our employees.
WE WILL NOT ask employees about their union sympathies, activities, or
membership; threaten employees with any loss of privileges or with a termina-
tion of operations if they select any union as their bargaining agent.
WE WILL NOT, in any other manner, interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization; to form, join or
assist a labor organization, to bargain collectively through a bargaining agent
chosen by themselves; to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection; or to refrain from any
such activities (except to the extent that the right to refrain is limited by the
lawful enforcement of a lawful union-security requirement).
WE WILL offer Jess Wilson his former or substantially equivalent job (with-
out prejudice to seniority or other employment rights and privileges) and WE
WILL pay him for any loss suffered because of our discrimination against him.
All our employees are free to become or remain members of any labor organization.
VALLEY HOMES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NoTE.-We will notify the above -named employe if serving in the Armed Forces
of the United States of his right to full reinstatement upon application , in accord-
ance with the Selective Service Act and the Universal Military Training and Serv-
ice Act, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, Room
2023 , Federal Office Building, 550 Main Street , Cincinnati , Ohio 45202 , Telephone
684-3627.
Delta Sportswear , Inc. and San Francisco Joint Board , Interna-
tional Ladies Garment Workers Union , AFL-CIO. Case 20-
CA-3497. August 1, 1966
DECISION AND ORDER
On April 7, 1966, Trial Examiner David London issued his Deci-
sion 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 set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Charging Party filed exceptions to the Trial
Examiner's Decision and supporting brief. The General Counsel and
the Respondent filed cross-exceptions and supporting briefs. Respond-
ent filed answering briefs to the cross-exceptions of the General
Counsel and to the exceptions of the Charging Party.
Pursuant to 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 [Mem-
bers Fanning, Brown, and Jenkins].
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 exceptions, cross-exceptions and briefs,'
and the entire record' in this case; and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, except as
modified herein.
The Respondent excepts to the Trial Examiner's finding that the
Respondent threatened employees with discharge or other reprisal if
they should engage in a lawful strike. We find merit in this exception.
1 We find no merit in the contentions by the Respondent that various credibility findings
of the Trial Examiner are erroneous, as the clear preponderance of all the relevant evidence
does not demonstrate that such findings are incorrect Standard Dry Wall Products, Inc.,
91 NLRB 544, enfd. 188 F 2d 362 (C A. 3)
The General Counsel and the Charging Party both except to the failure of the Trial
Examiner to find violations of Section 8(a) (1) on the basis of alleged interrogations of
employee Spate by Supervisor Pullen and of employee Wood by Plant Manager Tauber
Since further findings of Section 8(a) (1) would be merely cumulative and would not
broaden the remedy ordered herein, we find it unnecessary to pass upon these allegations.
160 NLRB No. 30.