Virginia Homes Mfg., Of Del., Inc.

National Labor Relations Board - Board Decisions

Dec 19, 1978

239 N.L.R.B. 897 (N.L.R.B. 1978)

VIRGINIA HOMES MFG. OF DEL., INC.
Virginia Homes Mfg. of Del., Inc. and United Broth-
erhood of Carpenters Local 2157, a/w United
Brotherhood of Carpenters and Joiners of America.
Case 5-CA-8823
December 19, 1978
DECISION AND ORDER
BY MEMBERS JENKINS. MURPHY. AND TRUESDAL.E
On September 13, 1978, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Virginia Homes Mfg. of
Del., Inc., Georgetown, Delaware, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
FRANK H ITKIN. Administrative Law Judge: This case
was heard before me at Dover. Delaware, on January 25,
1978. An unfair labor practice charge was filed by the
Union on August 26, 1977. A complaint issued on October
19, 1977, and was amended at the hearing. The issues pre-
sented are whether Respondent Company violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended, by interrogating employees concerning activities
on behalf of the Union; by threatening employees with
plant closure if they select the Union as their collective-
bargaining representative; by threatening employees with
physical harm because of their union activities; and by
terminating employees William Moore, Sr., and Otis
Moore because of their activities on behalf of the Union.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
counsel, I make the following:
FINDINGS OF FACT
The complaint alleges, the answer admits, and I find and
conclude that Respondent Company is engaged in the pro-
duction and sale of modular homes at its facility in
Georgetown, Delaware. During the preceding 12 months.
Respondent purchased and received materials and supplies
valued in excess of $50,000 from points located outside the
State of Delaware. Respondent, as stipulated. is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act. It is also undisputed and I find and
conclude that the Charging Party Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
During June 1977 employees Otis Moore and William
Moore. Sr., had numerous conversations with their brother
Ralph Moore about their working conditions at Respon-
dent's Georgetown facility. Ralph Moore in turn related
the complaints of his brothers to Leo Decker, the Union's
international representative. Decker thereupon recom-
mended that a meeting be held to discuss with the employ-
ees the commencement of an organizational drive at Re-
spondent's facility. Such a meeting was held on Thursday,
July 7, 1977, attended by the Moore brothers and Joseph
Farrone, a union business agent.
Thereafter, on Friday, July 8, 1977, Union representative
Farrone distributed union membership cards and other lit-
erature at the gate of the industrial park where Respon-
dent's Georgetown plant is located. General Manager
John Thompson, called as a witness by counsel for General
Counsel under Section 611(c) of the Federal Rules of Evi-
dence, testified ir. part as follows:
Q. When did you first become aware that the
Union was organizing the plant?
A. I was never informed that they were organizing
in the plant.
Q. Were you ever informed that a Union was inter-
ested in your plant at all?
A. I was informed that the Union was passing out
cards at the gate of the industrial park, sir.
Q. And who informed you of that?
A. Several of my employees.
Q. Upon being informed of that, did you ask any of
your employees what they thought of the Union?
A. A lot of the employees came and asked me
about the Union, sir.
Q. Did you ask any employee?
A. Yes. I could have. I will not deny it.
Previously, Thompson, in an affidavit given to a Board
agent, stated:
On Fndas afternoon, in June or July, when Union
literature was being passed out at the main entrance-
Respondent .cupies an abandoned aircraft hangar al the industrl.i
airporl site in (iorgelown As Respondent's general manager. John
Ihoimp,on. te,lfied. the hangar i, divided into work areas or stations.
Ieanll of workers in e.ach sijilon assemble or corntru( a particular segmenl
of the modular home. e g . the floor. the side walls. the roof or the plumbing
As each team', work is completed. an overhead crane lifts the entire unit
and moses it to the next designated statln Although each station has a
spectflc lask or function. indi'idual emplosees are assigned to multiple work
Ires in ll order II meet productlon requirements
897
DECISIONS OF NArIONAL LABOR RELATIONS BOARD
way, I asked a couple of employees if they were in-
volved in the [Union], and they denied it. I do not
recall at the present time if I asked any employee who
was trying to get the Union in.
On Monday, July 11, 1977, as employee Otis Moore
credibly testified, Nelson Adams, a department leader,
"brought the subject up of the guy passing the cards out at
the gate." Adams stated to Otis Moore: "That man's just
wasting his time . . . because the Union's not getting in."
Otis Moore asked Adams: "How do you know that?" Ad-
ams replied, "Because Johnny Thompson won't let them."
During this discussion, Adams apprised Otis Moore that
"he knew" that Otis Moore "was trying to get the Union
in." Otis Moore "asked [Adams] how he figured that?" Ad-
ams responded: "One of [his] good friends told him so."
William Moore credibly testified that subsequently, on
July 25, 1977, he received a telephone call from his brother
Ralph informing him of the need for four or five more
signed union authorization cards in order to petition the
National Labor Relations Board for a representation elec-
tion. On the following day, July 26, Otis, at William's re-
quest, picked up the additional cards from Ralph's home.
Later, on July 27, Otis and William distributed several
union cards to the Company's employees during the noon
hour and solicited their support in the organizational cam-
paign.
Otis Moore was absent from work on the next day, July
28, due to his wife's pregnancy. Upon reporting to work on
July 29, he was called into Manager Thompson's office and
warned about his absenteeism. Otis Moore credibly re-
called:
He [Thompson] said I was missing entirely too much
time, and most of it could be helped. And he said it
had to be stopped .... He said that if my absentee-
ism wouldn't stop, and if I didn't bring a doctor's ex-
cuse the next time I was absent, I would have been
discharged.
Between the date of this conversation and August 4, the
day Otis Moore was discharged, Otis Moore did not miss
any additional time from work.2
In addition, Otis Moore credibly recalled that on the day
of his discharge, August 4, he had the following conversa-
tion with Manager Thompson:
I [Otis Moore] was in the office there, finding out
where my time card was. And he [Thompson] told me
that he heard I was doing a little bit too much talking.
So naturally I spoke up and said, "well, I don't do any
more talking than the rest of the people in the plant
do". And so he said, "well, I'll put it a different way
.... you were doing too much talking about a cer-
tain subject. And that kind of trouble I don't need.
Here's your checks. You can go."
Manager Thompson was asked at the hearing "what
2 According to Respondent's "absentee and tardiness" records. Otis
Moore missed some 160 hours of work between August 13, 1976. the date of
his hire, and August 4. 1977. the date of his discharge. For calendar year
1977. there were some 10 employees who had greater tardiness and absentee
records than Otis Moore. See GC. Exhs 3(a) and (b).
were the reasons" for his "decision" to "fire" Otis Moore.
Thompson responded: "Poor work performance, very poor
attitude. He would stand around and talk instead of work."
Thompson then added: "Lots of talking. Lots of horseplay.
Plus attendance was very poor." Thompson further added:
Plus I was having lots of trouble, a rash of problems
from dealers I was selling houses to, complaining that
the doors were hung wrong, or that the molding was
not put up properly, gaps in the panelling. I had to
send servicemen to fix it.
Thompson, however, acknowledged that three or four em-
ployees were on Otis Moore's "crew doing finishing work";
that "they were all doing the same work"; and that "they
were shifting around from time to time ... " Thompson
also agreed that Otis Moore's cited "horseplay" consisted
of "standing around and joking" and that other employees
had engaged in similar conduct.3 Thompson further re-
called that "at the time," the leadman on Otis Moore's
crew was Nelson Adams and that Adams was subsequently
demoted because of his "drinking" problem.
Elsewhere in his testimony Manager Thompson ac-
knowledged that the employees with whom Otis Moore
"talked" were not disciplined "for talking" at the time.
Thompson asserted that "later on" he disciplined these em-
ployees. When asked "who" they were, Thompson re-
sponded:
At the present time, sir, I don't remember, but on
many occasions I have walked up to employees and
said, the conversation is getting mighty expensive right
here and drop it.
And, Thompson acknowledged that "in the area of atten-
dance" it is "possible" that "there are people with worse
attendance records than Mr. Moore's." Further, as stipu-
lated by counsel, "a document" from the Company's "per-
sonnel file" for Otis Moore states: "Employee fired due to
missing too much time from work"-the document recites
no other reasons for the employee's discharge.
William Moore testified that he started his employment
with the Company during mid-June and was also dis-
charged on August 4, 1977. William Moore credibly re-
called the events culminating in his discharge as follows:
On the morning of August 4, 1977, me and my
brother Otis both rode together, and we were sup-
posed to be at work at 7:30, which we did. We went to
the time clock, and I noticed my card was gone. And
I went to the secretary to ask where my time card was.
She said that John Thompson wanted to talk to me,
plant manager. So I went into the plant manager's of-
fice. And he told me to sit down, and he said, "Billy, I
heard you been pushing my men." And I said, "What
do you mean?" He said, "I heard you been talking to
them and trying to get the Union in," he said, "and I
don't want that kind of trouble. I'm not going to have
that kind of trouble." And then he said, "In fact, I had
a person call me the night before-which would have
been a Wednesday night-and say that you were defi-
I hormpson claims: "I've fired mans emplo, ees in the past and since Mr.
Moore has left. not just for slanding around joking. but Sou know, standing
around not producing"
898
VIRGINIA HOMES MFG. OF DEL.. INC
nitely trying to get the Union in." And he said that, "I
have four or five employees in the plant that would
like to punch you in your mouth." And then he asked
me did I want him to call them in. And I told him.
"No, that was OK." And then he went to his desk and
gave me both of my checks and told me to leave out of
the front door. And I started to go out the back door.
And he said, "1 didn't mean the back door. I said I
told you to get out the front door." And that was it.
Manager Thompson was asked at the hearing what were
the "reasons" for his decision to "discharge" employee
William Moore. Thompson responded:
Not taking an interest in his work, talking to the em-
ployees during working hours. you know, when he
should be in there working. And I again would receive
a rash of complaints on the plumbing in the field, once
the house had been delivered.
Thompson added: "Plus the State of Delaware, after these
complaints, had sent me a registered letter from the health
department, that I have to hire a licensed master plumber."
Thompson claimed that William Moore "just haphazardly
put the plumbing together .... " Thompson acknowl-
edged that employee James Sherman had worked with Wil-
liam Moore and that he, Thompson, never took "any disci-
plinary action" against Sherman, although it was "also"
Sherman's job to assemble and seal piping in the units.4 In
addition, Thompson claimed that at the time William
Moore was "discharged," there were three employees in the
plumbing department-James Sherman, William Moore,
and Arland Edwards. Thompson was asked: "At that time
could you justify retaining three plumbers in that depart-
ment?" Thompson responded: "No, sir, not with two and a
half houses a week, no way." Thompson asserted: "Noth-
ing for them to do. Plus they're losing money. Wouldn't get
the units off the line ...
Richard Absher, employed by the Company, credibly
recalled the following conversation with Manager Thomp-
son in the restroom on August 4, 1977:
He [Thompson] said if I was going to the Union
meeting. I said I might, just to hear what they say.
And he said, "Tell them to kiss my ass," you know. I
told him, I'm going to get my free beer.
He said he'll just close it down . . . [ilf the Union
comes in.6
James Cronic, employed by the Company, credibly testi-
fied that on August 4, 1977, he had the following conversa-
tion with Manager Thompson: "He [Thompson] came up
Thompson claimed that Sherman's "performance was good-" Another
coworker of William Moore. Rick Eckart. was dismissed hs Thompson he-
cause his performance was assertedly "very poor." Eckart was terminated
pnor to William Moore. Thompson acknowledged that the "complaints"
which he had received did not -specifically" name emploee VWilliam
Moore.
5Thompson testified that he had related his "unhappiness or diJsatsfac-
tion with Mr. William lMoore's] talking habits" to his production manager.
Joseph Simaca; that Thompson "did not talk to Mr Moore personall'
about Moore's "talking to other employees": and that Simata "had spoken
to Moore." Simaca, although still employed bs the Cormpan,. did not testi-
fy' Employee Larry Toomevy witnessed a part of the above ,on'ierslation
to me and Gene [Roarkel , . . and another guy that I
worked with . . . and asked me was I going to the Union
meeting to get some free beer." Cronic "just laughed."
Stephen Lathbury, employed by the Company, credibly
recalled the following conversation with Manager Thomp-
son concerning the Union:
Yes. sir, it's-there was, over a year ago, last winter
. . . And at the time, it was the first sighting that I
ever saw of a Union coming in. Cards were being is-
sued to the employees at certain times. And that day,
well, that day everybody got cards at different break
times. and then the next day the guy that was giving
out the cards was fired. And I'm not sure if it was that
day or the day after, all the job leaders from each
section were called in, and we were told what was
wrong with our department, and what was right, and
what we could do to step up production and keep our
plant cleaner. And at the end of my conversation con-
cerning my area, Mr. Thompson said that as far as the
Union goes, "I won't put up with the Union." He said.
"If you guys want to bring the Union in here, I'll close
the plant down." '
Roger Mitchell, executive vice president of the Compa-
ny, testified that the Georgetown facility was opened on
March 7, 1974: that as of March 31, 1976, "we had suffered
losses amounting to around $39.000 up here"; that in the
year ending March 31, 1977, "we suffered an additional
$57,000 loss"; that the 1977 figures were compiled in May
1977; that he then determined "what we needed to do is to
get more production"; and that he subsequently discussed
"this" subject of increased production with Manager
Thompson. According to Mitchell:
We had discussed the possibility that we could close
the plant. We [also] discussed the possibilities of put-
ting on additional personnel to get the production up
to where we could make a profitable organization.
Mitchell further asserted that by July 29, 1977, the Compa-
ny had increased its personnel and employed its "maxi-
mum" number of workers (48 employees), but "we pro-
duced below average" and, consequently, there was no
"marked increase in the units per week." Therefore, as Mit-
chell asserted. "we decided to cut back down to the level of
employees that we had prior to the step up in July." And,
according to Mitchell:
I advised Mr. Thompson to go out himself, observe,
see what was going on in the plant, try to weed out
some of the employees that were not producing up to
standard . . .
Manager Thompson testified that as a consequence of
his discussion with Mitchell in May or June 1977, he as-
sessed and evaluated "all of [his] employees," that he de-
termined that some ten employees should be "terminated
because they were not producing," and that these employ-
ees were terminated "the last week of July to the first week
of August." Thompson also claimed that employee Wil-
Lathburs placed the above cionversation in October 1976. 1. however.
am persuaded on this record that the above incident in fact occurred during
the nion's campaign in 1977
899
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
liam Moore was responsible for a $387 loss as a result of
faulty plumbing work. Further. Thompson claimed that af-
ter he terminated the employees as a consequence of his
meeting with Mitchell, "production picked up." Thompson
generally denied the coercive conduct and various state-
ments attributed to him by the witnesses, as recited above.
Carol Faucett, employed by the Company to "hang
doors and panelling and finish." testified that she worked
with Otis Moore on occasion and that his work was slow.
Faucett explained: "It wasn't any major problems, but
sometimes . . . he didn't want to carry doors . . ." and
would "do the inside work . . . putting up the panelling."
She added: "He did the work, but he didn't do it to my
standards." She also denied hearing Manager Thompson
threaten or coerce employees or interrogate employees
about union activities.
Arland Edwards testified that he was employed by the
Company as a master plumber in mid-July 1977 and that
the plumbing work then performed by the Company "was
not up to code." Edwards further testified:
Q. Who caused these problems in the home. to your
knowledge?
A. To my knowledge, I have no knowledge of who
exactly. There were two people putting the plumbing
in these houses and they apparently did not know the
code well enough to put it in right.
Edwards identified the "two people" as William Moore
and James Sherman. Edwards claimed, however, that Sher-
man was "more conscientious" and, during August, the
Company's plumbing work "could have been done with
two" employees instead of three. Edwards denied hearing
Thompson threaten or coerce employees or interrogate
them about their union activities.
I have credited the testimony of Otis Moore and William
Moore as recited above. Their testimony is in large part
mutually corroborative. Their testimony is also substantiat-
ed in part by the testimony of Leo Decker, Joseph Farrone,
James Cronic, Stephen Lathbury, Richard Absher, and
Larry Toomey. And, relying upon demeanor, I am per-
suaded here that the testimony of Otis and William Moore
is complete, reliable, and trustworthy. Likewise, I have
credited the testimony of Decker, Farrone, Cronic, Lath-
bury, Absher, and Toomey.8 Insofar as the testimony of
John Thompson, Roger Mitchell, Carol Faucett, and Ar-
land Edwards conflicts with the testimony of Otis and Wil-
liam Moore, Decker, Farrone, Cronic, Lathbury, Absher,
and Toomey, I find and conclude here that the testimony
of the latter witnesses is more reliable and trustworthy. As
discussed below, I find and conclude that the two Moore
brothers were in fact terminated on August 4 because of
their union activities and that Manager Thompson made
the coercive statements and engaged in the coercive con-
duct attributed to him by the witnesses as recited above. I
discredit as pretextual Thompson's alleged lawful and eco-
nomic reasons for the firing of the Moore brothers. I also
discredit Thompson's denials of the coercive and threaten-
s As noted supra. although Lathbury placed an incident involving Manag-
er Thompson in 1976. I find on the record before me that this incident. as
related by Lathbury. in fact occurred during the Union's campaign in 1977.
ing conduct attributed to him as recited above. Thompson
did not impress me as a reliable or trustworthy witness. His
testimony was at times vague, evasive, and incomplete.
Discussion
Respondent argues that employees Otis Moore and Wil-
liam Moore, Sr., were discharged solely for lawful and eco-
nomic reasons. The principal question raised is whether
Respondent, in discharging the Moore brothers on August
4, 1977, was motivated by an unlawful purpose. For, under
settled law. "the Board is not compelled to accept the
Employer's statement" of the reason for an employee's dis-
charge "when there is reasonable cause for believing that
the ground put forward by the Employer was not the true
one, and that the real reason was the Employer's dissatis-
faction with the employee's" union or protected, concerted
activities. The Great Atlantic And Pacific Tea Co., Inc. v.
N.L.R.B., 354 F.2d 707, 709 (5th Cir. 1966). And a dis-
charge motivated only in part by by an unlawful purpose is
similarly illegal. J. P. Stevens & Co., Inc. v. N.L.R.B., 380
F.2d 292, 300 (2d Cir. 1967), cert. denied, 389 U.S. 1005.
The credited evidence of record, as detailed supra, makes
it clear that Respondent, in summarily firing the Moore
brothers on August 4, was motivated at least in part by
their union activities. Thus, Otis and William Moore were
solely responsible for the Union's organizational drive at
the Employer's facility. Plant Manager Thompson admit-
tedly questioned employees "if they were involved in the
[Union] and they denied it." And, as Otis Moore credibly
testified, Department Leader Nelson Adams apprised him
on July 11, 1977. that "the Union's not getting in" because
"Johnny Thompson won't let them." Adams also informed
Otis Moore that "he knew" that Otis "was trying to get the
Union in"--"one of [his] good friends told him so."
Subsequently, on July 27, 1977, Otis and William Moore
distributed union cards to the Company's employees dur-
ing their noon hour and solicited their support in the cam-
paign. Otis Moore was absent from work the following
day, July 28, because of his wife's pregnancy. Otis Moore
returned to work on July 29. He was then faulted by Man-
ager Thompson for "missing entirely too much time" and
warned "if [his] absenteeism wouldn't stop and if [he]
didn't bring a doctor's excuse the next time [he] was ab-
sent, [he] would have been discharged." Six days later, on
August 4, Otis Moore was summarily discharged by
Thompson. Otis Moore credibly testified that he had not
missed any time from work during these intervening 6
days. Otis Moore credibly related his conversation with
Thompson on August 4, in part as follows:
You [Otis Moore] were doing too much talking about
a certain subject. And that kind of trouble I [Thomp-
son] don't need. Here's your checks. You can go.
William Moore was also fired by Thompson on August
4. William Moore credibly recalled that Thompson stated
to him:
I heard you been talking to them [the employees] and
trying to get the Union in.... I don't want that kind
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VIRGINIA HOMES MFG. OF DEL., INC.
of trouble. I'm not going to have that kind of trouble
Thompson admonished William Moore: "I have four or
five employees in the plant that would like to punch you in
the mouth"-"did [William Moore] want [Thompson] to
call them in." William Moore said no; he was given his
"checks," and he was instructed "to get out the front
door."
About this same time, Thompson questioned employee
Absher "if he was going to the Union meeting." Absher, as
he credibly testified, said that he "might, just to hear what
they say" and "to get my free beer." Thompson told Ab-
sher: "Tell them to kiss my ass." Thompson also warned
Absher that "he'll just close it down .. [i]f the Union comes
in." Employee Cronic was similarly interrogated by
Thompson. And, employee Lathbury credibly recalled,
"Mr. Thompson said that as far as the Union goes, I won't
put up with the Union .... If you guys want to bring the
Union in here, I'll close the plant down."
On this record I find and conclude that the real reason
for the discharge of Otis and William Moore was their
union activities. I reject as pretextual Management's assert-
ed reasons for this firing. Management's asserted nondis-
criminatory reasons do not withstand close scrutiny; they
are contradictory, shifting, and belated; and, consequently,
they only serve to bolster the finding that the real reason
for the Employer's determination was its strong opposition
to the union organizational effort. Thus, for example,
Thompson claimed that a reason for Otis Moore's firing
was his poor attendance record. Indeed, this is the only
assigned reason for the employee's discharge according to
a "document" in his "personnel file." In any event,
Thompson acknowledged that "in the area of attendance"
it is "possible" that "there are people with worse atten-
dance records." Thompson also claimed as reasons for Otis
Moore's discharge his "talking" and "horseplay." How-
ever, Thompson acknowledged that the employees with
whom Otis Moore "talked" or '"joked" were not disciplined
at the time. Thompson also cited as a reason for Otis
Moore's discharge complaints "from dealers." However,
Thompson acknowledged that three or four employees
were on Otis Moore's crew-"they were all doing the same
work" and "shifting around from time to time . . ." In-
deed, Otis Moore had a leadman at the time who had a
"drinking" problem. The leadman was demoted.
Likewise, in the case of William Moore, Manager
Thompson cited, inter alia, "a rash of complaints on the
plumbing in the field." However, Thompson acknowledged
that the "complaints" did not "specifically" name employ-
ee William Moore. Indeed, master plumber Edwards ac-
knowledged: "I have no knowledge of who exactly" caused
the plumbing problems. Thompson shifted to an economic
reason for William Moore's firing, claiming that at the time
he could "not justify retaining three plumbers in that de-
partment." All this occurred, management asserts, follow-
ing an unprecedented increase in personnel in order to in-
crease production.
In sum, I reject Respondent's assigned reasons for the
discharge of the Moore brothers as a contrived attempt to
justify the firing of the two employees because of their
union activities, in violation of Section 8(a)3) and (1) of
the Act. Moreover, I find that Thompson's admonition to
William Moore during the employee's termination-that is,
"I [Thompson] have four or five employees in the plant
that would like to punch you in the mouth"-is threatening
and coercive under the circumstances present here, plainly
tends to impede employee Section 7 activities, and there-
fore violates Section 8(a)(l) of the Act.
Further, Manager Thompson admittedly interrogated
employees "if they were involved in the [Union] and they
denied it." The record does not show, and Thompson does
not claim, that he gave assurances to these interrogated
employees that there would be no reprisals if they revealed
their union sentiments. The record does not show, and
Thompson does not claim, any legitimate business reason
for this interrogation. Indeed, when Thompson later ques-
tioned employee Absher as to whether he was "going to the
Union meeting" and Absher admitted that "I might,"
Thompson said: "Tell them to kiss my ass." Thompson
accompanied this statement with a threat to "close it down
. . . if the Union comes in." Thompson also questioned
employee Cronic about the union meeting. And Thompson
similarly told employee Lathbury, "If you guys want to
bring the Union in here, I'll close the plant down." Under
the circumstances, Thompson's interrogation of employees
concerning Union activities accompanied by threats to
"close it down ... if the Union comes in" plainly tends to
interfere with employee Section 7 activities and therefore
violates Section 8(a)(l1) of the Act.9
CONCLUSIONS OF LAW
I. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(l) of the Act by
coercively interrogating employees about protected union
activities, by threatening employees with plant closure if
they select the Union as their collective-bargaining repre-
sentative, and by threatening an employee with physical
harm because of his union activities.
' Counsel for General Counsel argues in his brief that "Lathburv testified
that Larrahee Ithe attorne? for Respondent] had in fact made lanl unlawful
threat of a change in working conditions if a Union were selected
This consersation assertedl) took place on the dal before the hearing while
Lalhhurs was being interviewed h, Larrabee and Thompson. Counsel for
General Counsel argues that since this matter was litigated, an additional
8(an I) finding should be made although not alleged. Lathbury's credible
tesltmonS concerning this consersation Is In part as follows:
The) [Thompson and Larrabeel asked me about my job. what I did,
about moving people from area to area, as far as keeping up production
and whether I thought that was go d or not And I said yes And Ihes
said, did you know that if there was a Union in the) couldn't do that.
And I said ses. I'd heard that. And I said they'd probabl) be better-if
that was the case. then the L!non shouldn't come in
Later. Lathburs acknowledged:
You [Larraheel said if a t nlmon came in and a contract was reached.
that there might be restrictions concerning people moving from area to
area
On this record. I am not persuaded that the above statement sufficientls
estabhlishes a threat, as claimed.
901
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Respondent violated Section 8(a)(3) and (I) of the
Act by terminating employees William Moore, Sr., and
Otis Moore, and thereafter refusing to reinstate them, be-
cause they had engaged in protected union activities.
5. The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I find it necessary to recommend that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act. And, as
the unfair labor practices committed by the Respondent
strike at the very core of employee rights safeguarded by
the Act, I shall recommend that Respondent cease and
desist from in any other manner infringing upon rights
guaranteed employees in Section 7 of the Act.
It has been found that Respondent, in violation of Sec-
tion 8(aX3) and (1) of the Act, unlawfully terminated em-
ployees William and Otis Moore on August 4, 1977. It will
therefore be recommended that Respondent offer to both
employees immediate and full reinstatement to their for-
mer or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make
them whole for any loss of earnings suffered by reason of
their unlawful terminations by payment to them of a sum
of money equal to that which they normally would have
earned from the date of Respondent's discrimination to the
date of Respondent's offer of reinstatement, less net earn-
ings during such period, with backpay and interest thereon
to be computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977).' ° Further, it will be
recommended that Respondent preserve and make avail-
able to the Board, upon request, all payroll records and
reports and all other records necessary and useful to de-
termine the amount of backpay due and the rights of rein-
statement under the terms of these recommendations. Re-
spondent will also be directed to post the attached notice.
Upon the foregoing findings of fact, conclusions of law.
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER I
The Respondent, Virginia Homes Mfg. of Del., Inc..
Georgetown, Delaware, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Coercively interrogating employees about protected
union activities.
(b) Threatening employees with plant closure if they se-
lect the United Brotherhood of Carpenters, Local 2157,
a/w United Brotherhood of Carpenters and Joiners of
America, or any other labor organization, as their collec-
tive-bargaining representative.
(c) Threatening employees with physical harm because
of their union activities.
(d) Discouraging membership in the United Brother-
hood of Carpenters, Local 2157, or any other labor organi-
zation, by discriminatorily discharging any of its employ-
ees or in any other manner discriminating against them
with respect to their hire or tenure of employment or any
term or conditions of employment.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed to them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer employees William Moore, Sr., and Otis
Moore immediate and full reinstatement to their former
jobs or to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, and
make them whole for the loss of earnings in the manner set
forth in this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its office and facility in Georgetown, Dela-
ware, copies of the attached notice marked "Appendix." 12
Copies of said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by Respon-
dent, shall be posted immediately upon receipt thereof, in
conspicuous places, and be maintained for 60 consecutive
days. Reasonable steps shall be taken to insure that notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
" See. generally. Iris Plumbing & Heating Co. 138 NLRB 716 (1%962).
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions. and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings. conclusions. and Order, and all objections thereto shall be
deemed waived for all purposes.
1| In the event that this Order is enforced by a judgnlent of a United
States (Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States. Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we have violated the National Labor Rela-
tions Act and has ordered us to post this notice. We there-
fore notify you that:
WE WILL NOT coercively interrogate our employees
concerning their union activities.
WE WILL NOT threaten our employees with plant clo-
902
VIRGINIA HOMES MFG. OF DEL., INC.
sure if they select the United Brotherhood of Carpen-
ters, Local 2157, a/w United Brotherhood of Carpen-
ters and Joiners of America, or any other labor organi-
zation, as their collective-bargaining representative.
WE WILL NOT threaten our employees with physical
harm because of their union activities.
WE WILL NOT discourage membership in the United
Brotherhood of Carpenters, Local 2157, or any other
labor organization, by discriminatorily discharging
any of our employees or in any other manner discrimi-
nating against them with respect to their hire or tenure
of employment or any term or condition of employ-
ment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights guaranteed in Section 7 of the National
Labor Relations Act.
WE WILL offer William Moore, Sr., and Otis Moore
immediate and full reinstatement to their former jobs
or to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges,
and WE WILL make them whole for any loss of earnings
plus interest.
VIRGINIA HOMES MFG OF DEL.. INC.
903