Skyline Homes, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1961

134 N.L.R.B. 155 (N.L.R.B. 1961)

SKYLINE HOMES, INC. 155
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to form , join , or assist said International
Union , United Automobile , Aircraft & Agricultural Implement Workers 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 pro-
tection , or to refrain from any or all such activities.
WE WILL offer to Clyde B . Richardson immediate and full reinstatement, and
to William H . Miller immediate and full reemployment, to their former or
substantially equivalent positions , without prejudice to their seniority or other
rights and privileges , and make them whole for any loss of pay they may have
suffered as a result of our discrimination against them.
All our employees are free'to become or refrain from becoming members of the
above union , or any other labor organization.
MURRAY OHIO MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Skyline Homes, Inc. and United Brotherhood of Carpenters and
Joiners of America , Carpenters Union No . 2292.1 Case No.
12-CA-1517. November 14, 1961
DECISION AND ORDER
On June 26, 1961, Trial Examiner W. Gerard Ryan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto, and finding that it had not engaged in certain other
unfair labor practices and recommending dismissal of the complaint
pertaining thereto. Thereafter, the Respondent and the General Coun-
sel filed exceptions to the Intermediate Report and briefs in support
thereof 2
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
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 Inter-
mediate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the following modifications and additions.
' Hereinafter referred to as the Union.
2 The Respondent 's request for oral argument is hereby denied as the record , exceptions,
and briefs adequately present the issues and the positions of the parties
134 NLRB No. 24.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We agree with the Trial Examiner that the Respondent interrogated
and threatened employees in violation of Section 8(a) (1) of the Act,
'and that it unlawfully refused to bargain with the Union in violation
of Section 8 (a) (5) and (1) of the Act. However, unlike the Trial
Examiner, we are convinced upon a totality of the evidence that
Respondent's demonstrated hostility to the Union, rather than eco-
nomic considerations, moved it to lay off 16 employees on June 17,
1960, and 2 employees on June 20, 1960.3 We would therefore sustain
the 8( a) (3) and ( 1) allegations of the complaint. Our reasons follow.
As indicated more fully in the Intermediate' Report, the organiza-
tional activity in the Respondent's plant began on June 13, and cul-
minated in the Union's acquisition of majority status by the morning
of June 17. On the morning of June 17, the Union met with Overman,
Respondent's resident manager, and requested recognition and bar-
gaining. Overman did not question the majority status of the Union,
but stated only that he would need the permission of Respondent's
home office at Elkhart, Indiana, before making any commitments on
the Union's demands. The parties then arranged for a later meeting.
Almost immediately thereafter Overman telephoned Decio, Respond-
ent's president, and advised him of the developments. It is conceded
that Decio instructed Overman not to meet further with the Union,
and that no further meetings took place.- Later that same day : (1)
Overman questioned almost all of the employees, either individually
or in groups, about the Union; (2) someone in Respondent's home
office at Elkhart telephoned Plant Manager Kreisher to ascertain
whether Kreisher knew who "the instigators" were; and (3) at the
end of the day, Kreisher precipitately laid off 16 of the 33 employees
in the unit. At the beginning of the next working day, June 20,
Kreisher laid off two more employees. Ten of the eighteen laid-off
employees had signed union cards. While Respondent subsequently
recalled 10 of the laid-off employees, only 2 of those recalled (Luzader
and Haroff) were among those who had signed union cards. Signifi-
cantly, both were reinstated after Kreisher had asked Luzader whether
Luzader and Haroff had "signed up" and Luzader replied that he
(Luzader) had signed up only after the layoff, and that he did not
believe that Haroff had signed.' Later, Resident Manager Overman
cautioned one employee (Hardin) not to sign anything "that would
hurt him or that he would feel sorry for later on," and Kreisher ad-
vised another employee (Watts) that "it would make no difference"
Unless otherwise indicated, all dates referred to hereinafter are in 1960.
The General Counsel contended that the testimony of Erick Anderson would corroborate
the above findings He therefore excepted to the Trial Examiner 's failure to make cred-
ibility resolutions regarding that testimony. In view of our conclusion herein,- based on
other evidence, we do not find it necessary to pass on the General Counsel's exceptions
thereon.
SKYLINE HOMES, INC. 157
if he had signed a card so long as he did not vote "when the election
came."'
The complaint alleged that the Respondent laid off the above em-
ployees on June 17 and 20, because of their union activities and/or
in order to undermine the majority status of the Union, thereby vio-
lating Section 8(a) (3) of the Act. The foregoing facts, including
those found by the Trial Examiner in connection with the 8(a) (1)
and (5) violation, supply, at the very least, prima facie evidence in
support of the 8(a) (3) allegations of the complaint. While the.
Respondent claimed that the layoff was economic in nature and had'_
been planned in advance of union activity and Respondent's knowledge.
of such activity, the objective facts do not support this claim. We
note in this connection that Overman and Kreisher testified that dur-
ing the several weeks preceding the June 17 layoffs Respondent con-
templated a mass layoff, allegedly due to a normal seasonal slump in
the industry and to a failure of the employees to meet adequate pro-
duction standards. They further testified that on Monday, June 13,
Overman instructed Kreisher to prepare a list of employees to be laid
off; that the list was completed and submitted to Overman on June 15;
and that the criteria used for retaining employees were "capability"
and "versatility." The Respondent thereby contends that the decision
to lay off a group of employees was reached on June 13, that the em-
ployees to be laid off were selected on June 15, and that its first knowl-
edge of union activity took place on June 17. However, the record
shows that the Respondent moved to a new plant in the same city about
May 1; that it advertised for additional employees in a local news-
paper on May 30 and 31; and that between June 1 and 17, inclusive,
the Respondent in fact hired or rehired 15 employees,' thereby in-
creasing its work force to a total of 33 employees.'
We find it incredible that the Respondent could, during the weeks
preceding June 17, simultaneously contemplate hiring 15 employees
and laying off 18 employees, thereby preparing for a seasonal slump
by a net reduction in force of 3 employees (2 of whom were recalled
by June 21). It is equally unreasonable to believe that such a major
layoff (directly affecting half of the plant employees) was predicated
upon the tests of "capability" and "versatility" and necessitated by
6 Overman testified that at the initial meeting between the Union and Overman, elec-
tion procedures were discussed ; that he later told employees that "an election was In-
evitable"; and that while "we would never have any way of knowing how they voted,
we would appreciate their support in voting out the Union "
9 Five on June 1 ; two on June 6 ; four on June 7 ; one on June 10; one on June 13 ;
and two on June 14.
7 Uncontradicted testimony in the record establishes that group leaders Erick Anderson,
Clyde Newman , and Clyde Turner and Plant Foreman Paul Etzcorn were empowered to
responsibly direct employees in the performance of their work, and to discharge employees
if need be, and such authority had In fact been exercised Accordingly, we find in agree-
ment with the Trial Examiner , that they were supervisors , and they are not included in
the complement of its 33 employees noted above.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unsatisfactory production rates as alleged by the Respondent. Of the
16 employees laid off on June 17, 3 had been hired on June 1, 1 on
June 6, 4 on June 7, 1 on June 10, 1 on June 13, and 1 on June 14.
Thus 11 of the 16 had been afforded less than 3 weeks to demonstrate
their "capability" and "versatility," and 3 had a week or less oppor-
tunity to do so.8 Furthermore, of the employees laid off, 10 were
subsequently recalled .9
We further disagree that the economic information introduced by
the Respondent (and set forth in the Intermediate Report) establishes
the purported motivation for the layoffs. The data cited therein re-
late only to a period after the layoffs and additional information in
the record indicates that the Respondent's volume of business and
orders received at the time of the layoffs were relatively similar to
those of the preceding several months. Moreover, three employees
(Bolinger, Hardin, and B. Lloyd) all testified that Kreisher called a
meeting of employees about June 14 to urge increased production in
order to keep up with incoming business.
In view of the foregoing facts, including the precipitate nature of
the layoffs with no warning to the employees on the same day on which
the union demand was made and the other unfair labor practices, we
conclude that the Respondent laid off the named employees for reasons
of union membership and activities and thereby violated Section
8(a) (3) and (1) of the Act.
THE REMEDY
As we have found, in disagreement with the Trial Examiner, that
the Respondent engaged in unfair labor practices in violation of Sec-
tion 8 (a) (3) and (1) of the Act; we will order, in addition to the
remedy recommended by the Trial Examiner, that the Respondent
cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
We will order that Respondent offer Melvin L. Bacon, Bob Knight,
Bruce Lloyd, Robert W. Lloyd, Gerald E. Penney, Lennie J. Stokes,
Grover F. Watts, and William J. Branton immediate and full rein-
statement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges, and make
them whole for any loss of earnings they may have suffered by reason
of the discrimination against them, by payment to them of a sum of
money equal to that which they would have earned as wages from the
9 Respondent 's own witnesses testified that Rivas , who was hired on June 14 and laid
off on June 17, was exceptionally versatile , having worked for a mobile home dealer and
thereby having gained broad experience
O The record reflects that employee Branton left town and was presumably unavailable
for recall , and that seven other employees were laid off and not recalled : Bacon , Knight,
B. Lloyd, R Lloyd , Penney, Stokes , and Watts . Significantly all of these employees had
signed authorization cards. It should be noted, however , that there is some question as
to whether or not Penney was offered reinstatement.
SKYLINE HOMES, INC. 159
date of the discrimination against them to the date of the offer of
reinstatement, and in accordance with F. W. Woolworth Company,
'90 NLRB 289.10
Since Hypolite W. Balius, Jr., Thomas O. Cunningham, Donald O.
Nick, Carleton D. Erdman, Harold B. Henry, Antonio P. Rivas,
Claude B. Hardin, Leo Mielczarczky, Wellington J. Luzader, and
Robert Haroff were reinstated after the discrimination against them
we will not order that Respondent offer them reinstatement but only
make them whole as in the cases of the other employees set forth
above for wages lost from the date of discrimination to the date of
reinstatement.
We will also order that the Respondent preserve and, upon request,
make available to the Board, payroll and other records to facilitate
the computation of backpay.
We will also order, in view of the nature of the unfair labor prac-
tices the Respondent has engaged in, that it cease and desist from
infringing in any manner upon the rights guaranteed employees by
Section 7 of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Skyline Homes,
Inc., Ocala, Florida, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively in good faith concerning
wages, hours, and other terms and conditions of employment with the
above-named Union as the exclusive representative of all its employees
in the following appropriate unit : All production and maintenance
employees of the Respondent employed at its Ocala plant, exclusive of
all other employees and all supervisors as defined in Section 2(11) of
the Act.
(b) Warning or interrogating employees concerning their member-
ship in or activities on behalf of the above-named Union, or any other
labor organization.
(c) Discouraging membership in the above-named labor organiza-
tions, or any other labor organization of its employees, by discriminat-
ing in regard to their hire or tenure of employment or any term,or
condition of employment.
(d) In any other manner interfering with, restraining, or coercing
such employees in the exercise of the rights guaranteed in Section 7
of the Act.
i° In accordance with our usual practice, the period from the date of the Intermediate
Report to the date-of this Decision ' and Order will'be excluded in:- computing the amount
of backpay due, those employees who were not reinstated at the time of the hearing, as
the Trial Examiner did not recommend reinstatement or an award of backpay as to them.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Melvin L. Bacon, Bob Knight, Bruce Lloyd, Robert W.
Lloyd, Gerald E. Penney, Lennie J. Stokes, Grover F. Watts, and
William J. Branton immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, and make them and Hypolite W.
Balius, Jr., Thomas O. Cunningham, Donald O. Nick, Carleton D.
Erdman, Harold B. Henry, Antonio P. Rivas, Claude B. Hardin,
Leo Mielczarczky, Wellington J. Luzader, and Robert Haroff whole
for any loss of pay they may have suffered by reason of Respondent's
discrimination against them, in the manner set forth in the Inter-
mediate Report attached hereto as modified by The Remedy section in
our Decision and Order herein.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary and useful to determine the amount of
backpay due and the rights of reinstatement under the terms of this
Decision and Order.
(c) Upon request, bargain collectively with the above-named Union
as the exclusive representative of all the employees in the appropriate
unit and embody in a signed agreement any understanding reached.
(d) Post at its plant at Ocala, Florida, copies of the'notice attached
hereto marked "Appendix." 11 Copies of said notice, to be furnished
by the Regional Director for' the Twelfth Region, shall, after being
duly signed by Respondent or its representatives, be posted by Re-
spondent immediately upon receipt thereof, and be 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 by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Decision and Order, what
steps Respondent has taken to comply herewith.
u In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
SKYLINE HOMES, INC. 1 6 1
WE WILL offer to Melvin L. Bacon, Bob Knight, Bruce Lloyd,
Robert W. Lloyd, Gerald E. Penney, Lennie J. Stokes, Grover F.
Watts, and William J. Branton immediate and full reinstate-
ment to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, and
make them and Hypolite W. Balius, Jr., Thomas O. Cunningham,
Donald O. Nick, Carleton D. Erdman, Harold B. Henry, Antonio
P. Rivas, Claude B. Hardin, Leo Mielczarczky, Wellington J.
Luzader, and Robert Haroff whole for any loss of pay suffered as
a result of the discrimination against them.
WE WILL, upon request, bargain collectively with United
Brotherhood of Carpenters and Joiners of America, Carpenters
Union No. 2292, as the exclusive representative of all employees
in the bargaining unit described below with respect to rates of
pay, wages, hours of employment, and other conditions of em-
ployment, and, if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
All production and maintenance employees employed at the
Ocala, Florida, plant, exclusive of all other employees and
all supervisors as defined in Section 2 (11) of the Act.
WE WILL NOT warn or interrogate our employees concerning
their membership in or activities on behalf of the above-named
Union, or any other labor organization.
WE WILL NOT discourage membership in the above-named labor
organization, or any other labor organization of our employees,
by discriminating in regard to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist the
above-named Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, to
engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from any
and all such activities.
All our employees are free to become, remain, or refrain from be-
coming members of the above-named Union, or any other labor
organization.
SKYLINE HoMES, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
630849--62-vol. 134-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before W. Gerard Ryan,
the duly designated Trial Examiner, at a hearing in Ocala, Florida, on October 11
and 12, 1960. The issues presented by the pleadings were whether Skyline Homes,
Inc., hereinafter referred to as the Respondent, had violated Section 8(a)(1), (3),
and (5) of the Act. After the hearing closed the Respondent on November 18,
1960, petitioned for leave to reopen the hearing for the purpose of offering in evi-
dence certain proposed exhibits numbered 1-9 inclusive. I denied the petition and
directed that the petition with proposed -exhibits thereto attached, numbered 1-9
inclusive, together with the memorandum from the General Counsel in opposition
thereto, would constitute the Respondent's rejected exhibit file . Briefs were re-
ceived from the Respondent on December 6, 1960, and from the General Counsel
on December 7, 1960.
Upon the entire record, and from my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The complaint alleged, the answer admitted, and I find that Respondent is, and
has been at all times material herein, a corporation duly organized under and exist-
ing by virtue of the laws of the State of Indiana; that Respondent is engaged in the
business of manufacturing and selling mobile homes (trailers) in the States of
Indiana and Florida; that at all times material herein the Respondent has maintained
its principal place of business at Elkhart, Indiana, and is, and has been at all times
material herein, engaged in the manufacture, sale, and distribution of mobile homes
at Ocala, Florida; that the Respondent's plant located at Ocala, Florida, is the only
plant involved in this proceeding; that the Respondent sold and delivered mobile
homes valued in excess of $50,000 from its Ocala plant directly to points and cus-
tomers in States other than the State of Florida; and that the Respondent is now,
and has been at all times material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of America, Carpenters Union
No. 2292,,is and, at all times material herein, has been a labor organization within
the meaning of Section 2(5) of the Act. ,
III. THE UNFAIR LABOR PRACTICES
With respect to unfair labor practices the complaint alleged that in violation of
Section 8(a) (1), (3), and (5) of the Act the Respondent interrogated employees as
to their membership in, activities in behalf of, and sympathy for, the United Brother-
hood of Carpenters and Joiners of America, Carpenters Union No. 2292 (herein re-
ferred to as the Union); threatened employees not to sign anything for which they
later would be sorry; laid off employees because of their union activities; laid off
employees in order to undermine the majority status of the Union; and refused to
bargain collectively with the Union which represented a majority of Respondent's
production and maintenance employees.' The answer denied the commission of
any unfair labor practices and averred that the layoffs were for economic reasons.
The answer admitted that James C. Overman (resident manager of the Ocala
plant), Ralph D. Kreischer (plant manager), and Larry S. Davidow (attorney for
Respondent)' were agents of the Respondent at all times material hereto.
The complaint alleged, the answer admitted, and I find that all production and
maintenance employees of the Respondent constituted a unit appropriate for the
purposes of collective bargaining within the meaning of the Act.
It was stipulated that on June 17, 1960, there were 33 production employees in
the unit found to be appropriate.2 It was further stipulated that in addition to the
'At the opening of the hearing I granted General Counsel' s motion to amend para-
graph 8 of the complaint by striking the name of James D. Shannon from the complaint.
Shannon had never been laid off
2 James W Arthur, Melvin L Bacon , 1-Iypolite Ballus, Russell Bolinger, Daniel Bower,
James Bowling, William J Branton , Ralph Buxton , Thomas 0 Cunningham , James Dodd,
Carleton Erdman, Raymond Evans , J W Gilley, Claude Hardin, Robert Ilaroff, Harold
SKYLINE HOMES, INC. 163
foregoing 33 employees in the unit, the Respondent had in its employ 4 other indi-
viduals, namely, Erick Anderson, Paul Etzcorn, Clyde Newman, and Clyde Turner.
The General Counsel contends the four last named are supervisors within the mean-
ing of the Act and should be excluded from the unit. The uncontradicted testimony
of Erick Anderson was that he, Clyde Newman, and Clyde Turner were "group
leaders" and that Paul Etzcorn was a plant foreman. Ralph D. Kreischer, the plant,
manager, also testified that Paul Etzcorn had been plant manager prior to June 17,
1960. Anderson's uncontradicted testimony was that he, Newman, Turner, and
Etzcorn had authority to fire employees, assign and reassign work, and otherwise
discipline employees. I accordingly find that Erick Anderson, Clyde Newman,
Clyde Turner, and Paul Etzcorn were supervisors within the meaning of the Act
and as such were not included in the unit.
On May 1, 1960, the Respondent moved into its new plant. There were some
changes made in the models of trailers then produced. Plant Manager Kreischer
testified two major changes were (1) better wiring, plumbing, and heating, and (2)
baked-on prepainted aluminum instead of painting at the plant; and admitted that
these changes would momentarily affect production, and that some employees had
complained that because of those changes they were unable to make their piece
rates. Resident Manager James C. Overman testified the new unit was entirely dif-
ferent in its color, interior, and appointments from anything the Respondent had
previously made; that there were no radical changes regarding floor plans but new
cabinet materials, parting walls, and new sidewall material were introduced. He
testified further that the floor jig was reworked and while the floor was different, it
was easier to make than the old floor; that a sticker machine was brought in; and
that the Respondent started making its own mouldings for the trailers. He testified
that the same amount of labor was required on the new model, except that a full-
time paint shop was no longer required.
On May 30 and 31, 1960, Respondent through its Plant Superintendent Ralph
Kreischer advertised for help in the Ocala Star-Banner as follows:
Skyline needs help in all departments. Only experienced mobile home build-
ers or carpenters need apply. Apply in person to Ralph Kreischer anytime at
new industrial park near Taylor Field.
Thereafter on June 1, 1960, Respondent hired Lennie Stokes, James Bowling,
-Gerald Penney, W. B. Turner, and rehired Robert Haroff. On June 6, 1960, Ralph
Buxton and Robert Lloyd were hired. On June 7, Carl Erdman, Melvin Bacon,
William Branton, and Donald Nick were hired. On June 10, Robert Knight was
hired and during the week beginning June 13, Harold Henry and Antonio -Rivas
were hired and Dale Whipple was recalled.
Meanwhile, organizational activity started on June 11 when employee Bruce
Lloyd met with J. E. Wells, business representative of the Union, and obtained union
authorization cards. During the week of June 13, Bruce Lloyd passed out the cards
and by Friday, June 17, 17 employees in the unit had signed authorization cards.3
After the layoff on June 17, three other employees named in the complaint signed
cards, although the cards are dated prior to the layoff.4
About 10 a.m. on Friday, June 17, Union Representatives Warren Conary, Adlai
Pittman, and J. E. Wells called at Respondent's plant and met with Plant Manager
Overman. Conary was the union spokesman and he told Overman that the Union
represented a majority of the production and maintenance employees and that they
wanted to negotiate a contract for them. Overman did not question the Union's
majority status, nor did he ask for proof of majority. The meeting lasted about an
hour, during which negotiation procedures, union contracts, business conditions,
collection procedures, etc., were discussed.
Overman said his was not the last word and could not give any commitment but
he would have an answer for them if they returned the following week, as he would
have to get permission from the Respondent's home office in Elkhart, Indiana. An
Henry, Walter Irving, Robert Knight, Bruce Lloyd, Robert Lloyd, Wellington J Luzader,
Leo Mielczarczyk, Donald 0 Nick, Loren Osier, Gerald E Penney, Robert Rehfeldt,
Antonio P. Rivas, D. J. Shannon, Lennie J. Stokes, J C. Tanner, W B Turner, Grover
Watts, and Daniel Whipple
3 They were Donald Nick, Robert Knight, Robert W. Lloyd, Walter Irving, J W Arthur,
James D Shannon, Robert Rehfeldt, Leo Mielczarczyk, J C Tanner, Melvin L Bacon,
Gerald E Penney, Daniel F Bower, Thomas Cunningham, Grover F. Watts, Claude B.
Hardin, James Dodd, and Bruce Lloyd
4 Luzader and Stokes signed cards on June 17, after the layoff, and Balius, Junior,
signed a card on June 18.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appointment was made to meet again on June 21 at,10 a.m. After the union repre-
sentatives left on Friday morning, June 17, Overman testified that he had a tele-
phone conversation with the Respondent's president, Arthur Decio, and that he told
Decio he had been visited by the union representatives. Decio told Overman that
Overman could not negotiate any contract because he was not an officer or director
of the Company. Decio told Overman to mail the proposed contract to him when
it was received. When Overman told Decio he was going to meet with the union
representatives on Tuesday, June 21, Decio said there would be no point in that
because Overman could not negotiate to which Overman replied, "All right, fine."
Thus the record shows that the Respondent's president, Decio on June 17 had in-
structed Overman not to meet with the union representatives on June 21. The after-
noon of June 17, after the day's work was completed, the Respondent laid off 16
men, 8 of whom'had signed union cards prior to the layoff.5
There is no evidence in the record that the Respondent had any knowledge of
union activity in the plant prior to 10 a.m. on June 17 when the union representative
called and met with Plant Manager Overman.
James H. Dodd, called by General Counsel, testified that he was originally hired
by Respondent in August 1958. He was not included in the layoff on June 17 and
has been continuously employed since August 1958. Dodd signed a union card on
June 14. He testified that about 1 p.m. on June 17 he heard the Respondent's pur-
chasing agent, Max, holler to Plant Manager Kreischer that "Elkhart was on the
phone" and Kreischer took the call out in the shop. He testified that he heard
Kreischer say in the conversation, "Yes, we definitely know who the instigators are."
I credit Dodd's testimony. Kreischer, when called by the Respondent, was asked if
he had ever made the statement on the telephone which Dodd had described and
Kreischer testified, "I don't recall that conversation." He was then asked again if he:
had ever made the statement attributed to him by Dodd and he answered, "No, sir."
On June 21, 1960, Adlai Pittman learned that Warren Conary would be unable to-
be present for the meeting scheduled for 10 o'clock in the morning for that day and
he called Overman to ask that the meeting be rescheduled for any time after 1 or 2
o'clock or at Overman's convenience. Overman replied to Pittman that he had strict
orders not to discuss, • meet, or have any affair, any business, concerning union,
activities at this time. When Pittman pointed out that unless he (Pittman) could
reach them by telephone, Conary and Shephard (the joint representative for the
State Council of Carpenters, and the United Brotherhood, International) were ex-
pecting to be there for the meeting at 1 or 2 o'clock. Overman replied, "There will
be no meeting period." Overman continued that "my instructions from higher up'
has instructed me no." Overman testified that he told Pittman that he did not be-
lieve it would be worth their while to come out to meet with them because he could
not negotiate a contract; and when Pittman inquired, "What are we going to do,"
Overman replied, "I don't know Mr. Pittman. The contract has been mailed to,
Elkhart. I made it clear that a meeting with me would serve no useful purpose."
On Thursday, June 23, Decio mentioned in a telephone conversation with Over-
man that Larry S. Davidow, the Respondent's attorney, was going to Ocala and re-
quested that Overman meet him at the airport. Overman testified he could not be
certain whether Decio said that Davidow was coming to meet with Overman in dis-
cussing the Union or whether Davidow was to negotiate with him and for him with
the Union. In any event on June 24, 1960, Davidow arrived and was met at the
Tampa Airport and was driven to Ocala by Overman. On the way, Overman stopped
at the post office for the mail and received a copy of the original charge in this
proceeding which was filed by the Union on June 23, 1960. That original charge
alleged that the Respondent had violated only Section 8(a) (1) and (3) of the Act.
It did not charge any violation of Section 8(a)(5). The amended charge, charg-
ing violations of Section 8(a)(1), (3), and (5) of the Act, was not filed by the
Union until August 2, 1960, and served on the Respondent on August 3,1960.
When the original charge was received on June 24, charging the Respondent with
violation of Section 8(a)(1) and (3) of the Act, Davidow stated to Overman,
"There will be no purpose in meeting with the Union to try to negotiate now."
The Respondent thereafter made no attempt to meet with the Union. The Union
after June 21 made no attempt to meet with the Respondent.
After the Union's demand for recognition and bargaining on June 17, the Re-
spondent engaged in the following conduct:
On Saturday, June 18, Kreischer visited employee Luzader at his home. Luzader
testified without contradiction that Kreischer asked him if employee Haroff had
"signed up," if Luzader knew who the instigator was, and if Luzader had signed up.
6 The eight were Bacon , Cunningham , Knight, Bruce Lloyd , Robert Lloyd , Nick,.
Penney, and Watts.
SKYLINE HOMES, INC. 165
On June 22, Overman told employee Hardin not to sign anything that would hurt
him or that he would feel sorry for later on.
On June 24, Kreischer asked employee Watts if he had been approached and told
Watts it made no difference if he had signed a card or not, if he did not vote when
the election came.
In addition, Overman admitted that following the Union's request for recognition
on June 17, Overman spoke to almost all of the employees about the selection of the
Union as the bargaining representative, questioning some of them individually and-
others in groups. The Respondent sent letters to both the currently employed em-
ployees and the laid-off employees in which it expressed its opposition to the Union
as bargaining representatives of its employees.
There was also testimony in the record of conversations between Kreischer and
Overman with Anderson upon which no findings of unfair labor practices are made
in view of the fact that Anderson has been found to be a supervisor within the mean-
ing of the Act.
The General Counsel's Contentions
The General Counsel contends with respect to the 8(a) (5) allegations of the
complaint that on June 17, 1960, the Union had designations from 17 of the 33 em-
ployees in the unit when it made its demand for recognition and bargaining; that its
demand of June 17 was a continuing demand which was renewed on June 21. The
General Counsel contends that Overman to whom the demand was addressed was a
top company official at Ocala, and that he was in charge of all phases of the Re-
spondent's operations in Ocala and recognized his status sufficiently to discuss con-
tract terms with the Union and to request a copy of the contract. The General
Counsel further contends that Respondent, after the Union's demand on June 17,
embarked on a campaign to destroy the Union's majority by conduct violative of
Section 8(a)(1) and (3). The General Counsel concludes in his argument that
none of the Respondent's acts should be considered alone; rather the case must be
viewed in its entirety to gain the proper perspective; and that when so viewed it
becomes clear that the Respondent's aim was to wreck the Union completely and
irrevocably; and to accomplish this end a three-pronged attack was launched-a
discriminatory layoff, a subversion of the collective-bargaining principle, and a
cleanup action consisting of unlawful interference, restraint, and coercion warranting
only one conclusion, namely, that Respondent violated Section 8(a)(1), (3), and
(5) of the Act.
With respect to the 8(a)(3) allegations of the complaint the General Counsel
contends that the layoffs were discriminatorily motivated because of the timing of
the layoffs occurring in the afternoon of the day in which the Union made its de-
mand; because of the Respondent's advertising for help on May 30 and 31, and
then on June 1 the Respondent hiring five new employees and rehiring a former em-
ployee; and in the next 2 weeks prior to the layoff hiring nine additional men and
recalling a former employee. The General Counsel contends that such facts on
hiring and rehiring are sufficient in themselves to rebut any contention that the lay-
offs were motivated by economic considerations. The General Counsel argues that
Overman's testimony that the Mobile Home Industry generally slumped during the
summer months and knowing this advertised for more employees, hired employees,
and rehired two former employees and that those hired were told that production
had to be boosted, is unbelievable at a time when Respondent had decided to lay off
half its production force. The General Counsel further contends that the orders
placed the week of the layoff were the third highest of the year and the dollar volume
of shipments during the week prior to the layoff were higher than for any other week
for which there was evidence. The General Counsel contends there are two other
factors which demonstrate the layoffs were not economically motivated. First that
Overman, although expressing to the union representatives on June 17 the problem
of seasonal slumps and his intense dislike of layoffs remained strangely silent about
the impending layoff scheduled for that same afternoon. The General Counsel
would infer that the idea of a layoff had not yet enered Overman's mind; and the
second factor is the change of personnel on June 20 and 21 wherein Anderson
(found supra to be a supervisor) was laid off on June 20 because it was believed
he was a union organizer; that Hardin was laid off on June 20 because it was
thought he had signed a card; that Haroff was recalled because it was learned he had
not signed a card; and Luzader was recalled because it was learned he was loyal.
The General Counsel in summary contends that there is substantial evidence that
the layoffs of June 17 and 20, 1960, occurred because the employees had selected
the Union as their bargaining agent and the layoffs were effectuated in order to under-
mine the majority status of the Union and accordingly such layoffs were violative
of Section 8(a) (3) of the Act.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's Defense
The Respondent's defense to the 8 ( a)(3) allegations of the complaint is that the"
layoffs were economic in nature and not discriminatorily motivated. The Respond-
ent introduced the testimony of Kreischer and Overman, that they discussed the
necessity for such layoff as a business measure in the early part of June 1960; and
then on Monday, June 13, Kreischer upon instruction of Overman began to prepare
a list of employees to be laid off at the end of the week; that Kreischer determined
those to be kept on the basis of job versatility, i.e., the ability to do more than one
job and the laying off of the less versatile workers. This list was finished on
Wednesday, June 15, and was to be made known to the employees on Friday, June 17.
The Respondent also introduced testimony through Kreischer and Overman that the
Respondent had no idea or knowledge of union activities at the plant prior to the,
advent of the union representatives on the morning of June 17. Respondent intro-
duced testimony that the production of mobile homes in Florida is a seasonal activity
usually starting up in late summer or fall and ending about April or May and that a
similar layoff had occurred in Respondent's plant about the same time in the years
1958 and 1959; and that when seasonal production stepped up in the fall of 1959
the Respondent had a backlog of actual orders of 55 compared to 17 orders at the
comparable time in 1960. Overman testified from the company records that for the
week ending June 18, 1960, there were no orders received and inventory units were
8; for the week ending June 25, 1960, he scheduled 5 units to be built without having
been ordered and the number of inventory units was 7; for the week ending July 2,
11 orders were scheduled and there were 12 inventory units; for the week ending
July 9, no orders received and there were 15 inventory units; for the week ending
July 16, 3 orders received and 16 inventory units; for the week ending July 23, 5
orders received and 17 inventory units; for the week ending July 29, 7 orders received
and 16 inventory units; for the week ending August 6, 3 orders received and 18
inventory units; for the week ending August 13, 1 order received and 16 inventory
units; for the week ending August 20, 5 orders received and 17 inventory units; for
the week ending August 27, 11 orders received and 15 inventory units; for the week
ending September 3, 6 orders received and 14 inventory units; for the week ending
September 10, 2 orders received and 14 inventory units; for the week ending Septem-
ber 17, 8 orders received and 12 inventory units; for the week ending September 24,
17 orders received and 11 inventory units; for the week ending October 1, 4 orders
received and 14 inventory units; for the week ending October 8, 9 orders received
and 12 inventory units.
The Respondent also introduced testimony that in the latter part of August 1960;
as the expected season of production approached, Respondent began to recall its
laid-off employees, all of whom with the exception of one were given an opportunity
to return to work and that the recalling to work was carried on without any regard
as to union status or membership or interest.
With respect to the 8(a)(5) allegations in the complaint the Respondent denies
that it has failed to bargain and contends that it was the Union who was responsible
for breaking off negotiations . The Respondent contends that it is understandable
that Overman was in no position to negotiate on June 21 because he had received
no instructions from the home office and that Overman thought he had made that
clear to Pittman about the uselessness of 'a meeting on June 21. When the union
charges concerning violations of 8(a ) (1) and (3) were received on June 23, Davidow
advised Overman there was no use trying to negotiate with the Union until the matter
of unfair labor charges had been disposed of. The Respondent contends that the
union representatives "jumped the gun" in hastily filing charges on June 21 of
8(a) (1) and (3) violations and therefore the responsibility for failure to meet after
June 21 rests entirely upon the Union. The Respondent contends that the only
reason that no further negotiations occurred was that by filing the 8 (a) (1) and (3 )
charees against the Respondent the Union foreclosed any further negotiations,
thereby depriving the Respondent of the right to raise the question as to whether the
Union's claim to represent a majority of the employees was well founded.
With respect to the 8(a)(1) allegations in the complaint the Respondent contends
there is no testimony in the record as to any threats or promises or discriminatory
behavior on the part of the Resnondent Respondent contends that in conversations
with the employees the Respondent emphasized and reiterated the fact that while the
Company itself was opposed to the Union, the individuals were free to do what
they chose with the expression of hope on the part of Respondent, that when the
election took place they would vote for the Respondent, and that such statements of
expression or conversations with the employees did not overstep the bounds of free
speech guaranteed not only by the Constitution of the United States but also under
the Act.
SKYLINE HOMES, INC. 167
Conclusions
With respect to the 8 (a) (1) allegations in the complaint , I conclude and find
upon the entire record that the Respondent interfered with , restrained , and coerced
its employees thereby violating 8 (a) (1) of the Act by (1) Plant Manager Kreischer
asking employee Luzader if employee Haroff had "signed up"; if Luzader knew who
the instigator was; and if Luzader had signed up; (2) Resident Manager Overman
on June 22 , 1960, in a discussion about the Union telling employee Hardin not to
sign anything that would hurt him or that he would feel sorry for later on; and (3)
Kreischer on June 24 asking employee Watts if he had been approached and telling
Watts it would make no difference if he had signed a card or not , if he did not vote
when the election came.
With respect to the 8 ( a)(3) allegations in the complaint , d conclude upon the
entire record that the layoffs on June 17 and 20, 1960 , were made for economic rea-
sons and were not discriminatorily motivated in violation of Section 3 of the Act.
The first knowledge the Respondent had of any union activity at the plant was at 10
a.m. on June 17 when the union representatives visited Overman. Previously thereto,
namely on June 13, Overman had directed Kreischer to draw up a list of employees
to be laid off on June 17. Kreischer finished the list on Wednesday , June 15.
Kreischer selected the employees to be retained on the basis of their ability to,
perform more than one job in the plant and those who could not do more than one
job were laid off. The layoffs were due to the seasonal economic situation. Further-
more union and nonunion employees were included in the layoffs ( although the
Respondent had no knowledge who they were ) and recalls later were on the same
nondiscriminatory basis. Accordingly I conclude that the 8 (a)(3) allegations of
the complaint should be dismissed.
With respect to the 8(a) (5) allegations in the complaint I conclude upon the entire
record that the Respondent has violated Section 8 ( a)(5) of the Act on and after
June 21 , 1960. On June 17 when the union representatives called on Overman,
claimed a majority of the employees in the unit , and requested bargaining negoti-
ations, the Union in fact did have signed designations from a majority of the em-
ployees in the appropriate unit . Overman did not challenge the Union's claim but
advised the representatives that he would obtain instructions-from the home office ].T
Elkhart and a meeting was scheduled for June 21. When Pittman telephoned Over-
man on June 21 , Overman told Pittman he had received his instructions from "higher
up" and there would be no meeting . I find no merit in Respondent 's defense that
because charges of 8(a )( 1) and ( 3) violations of the Act were filed by the Union
it had no further obligation to bargain pending the disposition of such unfair
labor charges.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the Respondent's operations described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom, and that it take certain affirmative
action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case, I
make the following: 6
CONCLUSIONS OF LAW
1. United Brotherhood of Carpenters and Joiners of America, Carpenters Union
No. 2292, is a labor organization within the meaning of Section 2(5) of the Act.
2. All production and maintenance employees of the Respondent at the Ocala,
Florida, plant, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
3. The above-named Union was, on June 17, 1960, and since that date has been
at all times , the exclusive representative of all employees in the aforesaid appropriate
unit for the purposes of collective bargaining within the meaning of Section 9(a)
of the Act.
6 The Respondent ' s proposed findings are granted except that 1, 2, 6, 7, 8, 14, 15, and 16
are denied The Respondent 's proposed conclusions are denied.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By refusing on June 21 , 1960 , and at all times thereafter to bargain collectively
with the above-named Union as the exclusive representative of its employees in the
aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent did not and has not engaged in unfair labor practices within
the meaning of Section 8(a) (3) of the Act.
[Recommendations omitted from publication.]
Skagg's Pay Less Drug Stores and Retail Store Employees
Union, Local 428, AFL-CIO, Retail Clerks International Asso-
ciation , Petitioner. Case No. 20-RC-4555. November 14, 1961
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act a hearing was held before Donald E. Twohey, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in this case to a three-member panel [Mem-
bers Rodgers, Leedom, and Fanning].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9(c) (1) and Section 2(6) and (7) of the Act.
The Petitioner seeks a combined unit of employees at the Em-
ployer's two retail drugstores in San Jose, California. The Employer
and Intervenor contend that the Board should conduct separate elec-
tions in single-store units. The Intervenor has represented the em-
ployees at the Employer's Downtown Store in San Jose since 1951.
The Intervenor's last contract expired in 1960, prior to opening of the
second store in San Jose, known as the Valley Fair Store. In addition
to these two stores in San Jose, the Employer operates seven other
retail drugstores in California : one in Oakland, one in Pleasant Hill,
one in Hayward, one in Stockton, and three in Sacramento. The
1 Skagg's Pay Less Employees Association intervened on the basis of its contract with
the Employer covering certain employees in the unit sought in the petition which, by its
terms, expired in 1960 . Bush Terminal Company, 121 NLRB 1170. No party contends
that this contract constitutes a bar to this proceeding.
134 NLRB No. 27.