Biltmore Mobile Homes

National Labor Relations Board - Board Decisions

Sep 23, 1964

148 N.L.R.B. 1259 (N.L.R.B. 1964)

BILTMORE MOBILE HOMES
APPENDIX
1259
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, we hereby notify our employees that:
WE WILL NOT interrogate our employees in connection with their union
activities or sentiments in a manner constituting interference, restraint, or
coercion under the National Labor Relations Act.
WE WILL NOT threaten our employees or promise benefits or harm in order
to affect our employees' free choice of a collective-bargaining representative.
WE WILL NOT give effect to our November 19, 1963, contract with the Dallas
County Industrial Labor Union unless and until it has been certified by the
National Labor Relations Board as the exclusive representative of our employ-
ees. This action will not affect present wages and other working conditions.
WE WILL NOT discriminate against any employee because of his union ac-
tivity on behalf of United Packinghouse, Food & Allied Workers, AFL-CIO,
District No. 3, or any other union.
WE WILL withdraw and withhold recognition from Dallas County Industrial
Labor Union as the collective-bargaining representative of our employees until
and unless it has been certified by the National Labor Relations Board.
WE WIILL offer Danny Gettler and Benjamin Parr immediate and full rein-
statement to their former or substantially equivalent positions, without prejudice
to seniority and other rights and privileges. We will pay them for the wages
they have lost since their discharge to the date of their reinstatement.
All our employees are free to join or not to join, to become or remain, or to
refrain from becoming or remaining members of any labor organization. We will not
discriminate against any employee because of his union membership or activity.
IOWA PORK COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their rights to full reinstatement upon ap-
plication in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 316 Fed-
eral Building, 110 South Fourth Street, Minneapolis, Minnesota, Telephone No.
399-0112, Extension 2601, if they have any questions concerning this notice or
compliance with its provisions.
Biltmore Mobile Homes and Sheet Metal Workers International
Association , Local No. 213. Case No. 19-CA-2709. Septem-
ber 03, 1964
DECISION AND ORDER
On March.24, 1964, Trial Examiner Wallace, E. Royster issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 De-
cision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision.
148 NLRB No. 133.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the Act, the 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 Respondent's exceptions, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner as modified herein.
The General Counsel contended, at the hearing, that the Respond-
ent, without considering the experience or aptitude of certain ap-
plicants for employment with Respondent, refused to employ these
applicants because of their membership in the Union. The Respond-
ent denies this contention on the ground that it had no knowledge of
the applicants' union membership. The Trial Examiner found that
the Respondent had indirectly acquired such knowledge by inference.
In reaching this conclusion, the Trial Examiner credited all of the
testimony of the applicants. Among other things, this testimony es-
tablishes that during an employment interview with Knobel, Respond-
ent's plant manager, the applicants informed Knobel that they had
been laid off from their former jobs because of a dispute between the
Union and their former employer, and that Knobel told these ap-
plicants that the Respondent did not hire "union men." Based on this
credited evidence, the Trial Examiner found that because the record
did not contain any testimony, whereby Knobel could have learned that
the applicants were, in fact, "union men," Knobel must, therefore,
have inferred that the applicants were union members, and refused
to hire them because of this belief. An examination of the record,
however, reveals that Douglass, one of the applicants, credibly testi-
fied that during the interview, the applicants told Knobel that "we
were laid off because of a labor dispute between the company and the
union, and that we were in the union." In the light of this credited
testimony contained in the record, we find that Knobel's refusal to con-
sider the applicants for employment was predicated on his direct
knowledge that they were, in fact, union members.
Accordingly, we find, in agreement with the Trial Examiner, that
the Respondent, by refusing to consider the applicants for employ-
ment because of their union membership, discriminated in regard to
their hire and thus discouraged membership in a labor organization
in violation of Section 8 (a) (1) and (3) of the Act.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, Bilt-
BILTMORE MOBILE HOMES 1261
more Mobile Homes, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was tried before Trial Examiner Wallace E. Royster in Boise, Idaho,
on November 13, 1963,1 upon a complaint dated October 7, based upon a charge
filed August 26. At issue is whether Biltmore Mobile Homes, herein called the
Respondent, refused, for discriminatory reasons, to hire John Hunsaker, Richard
York, Jerry Douglass, and Robert Sellards. It is alleged that by such refusal the
Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act.
Counsel for the Respondent has filed a brief which has been considered. Upon
the entire record in the case, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation engaged in the manufacture of trailer
homes. It ships from Boise, Idaho, to points outside that State products to a
value in excess of $50,000 annually. I find that the Respondent is engaged in com-
merce and in an operation affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers International Association, Local No. 213, the Charging
Party in this matter, is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
On August 14, Hunsaker, York, Douglass, and Sellards, each of whom, prior to
that date, had been employed by Kit Manufacturing Company, herein called Kit,
at a location about 30 miles from Boise, came to the Respondent's plant office. The
four had temporarily or permanently lost their employment with Kit a few days be-
fore this date. They applied for employment with Ken Knobel, Respondent's plant
manager. According to Hunsaker and Douglass, after learning that the men were
looking for work, Knobel asked if they had experience in trailer manufacturing.
One of them said that they had worked for Kit. Knobel asked if they had been laid
off. Some one of them answered that they had been laid off because of involvement
in a dispute between a union and Kit. Knobel said that trailer manufacturing did
not require skilled labor and that the Respondent did not hire "union men." A
few more words were spoken in which Knobel said that he appreciated their hon-
esty and that he had been honest with them. The men then left.
Knobel testified that he recalled the visit to his office and that when he en-
countered the men he asked them what they wanted. When they answered that
they were looking for employment, he asked if they had any experience in trailer
manufacturing and thus learned that they had been employed by Kit. Knobel then
asked, he testified, if Kit was laying off workmen. The men answered that they
had been laid off because they had walked off the job Knobel replied, he testified,
that he would not hire them, saying in substance that if they had walked away from
their employment with Kit they might do the same with him. Knobel testified that
to his "recollection there was nothing mentioned of unions at that time. After that
I will not say." I note that Knobel did not deny that a question of union member-
ship or union members arose. A close examination of his testimony indicates that
there was such a mention but that it had not come in the precise context testified to
by Hunsaker and Douglass. If Knobel understood that the men had walked away
from their employment with Kit, he did not question them concerning their reasons
for doing so or the circumstances under which they left. He concluded that they
were undesirable applicants. Respondent's production was on the rise and Knobel
was hiring new employees with considerable regularity. It is clear, and I find, that
the applicants were not denied employment upon considerations of experience or
aptitude. Something was mentioned on this occasion which caused Knobel to reject
the applications before such matters were reached. Hunsaker and Douglass testified
'All dates mentioned are in 1963.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Knobel said the Respondent did not hire "union men." There is no testimony,
that any of the applicants said he was a union member so if Knobel made that com-
ment he must have inferred that this was so because they had "walked off" their
jobs, as he says he understood it, or had been laid off because of a dispute between
Kit and a union as Hunsaker and Douglass said they explained. I find that the
testimony of Knobel on the use of the term "union men" or on the mention of unions.
does not fairly deny that such expressions were used.
I find that the four applicants were refused consideration for employment by
Knobel on this occasion because he believed them to be union members and that to
hire them would be contrary to Respondent's policy. I credit the version given by
Hunsaker and Douglass as to the words spoken on this occasion I find therefore
that by refusing to consider the four men for employment in the circumstances
given, the Respondent discriminated in regard to their hire, thus discouraging mem-
bership in a labor organization in violation of Section 8(a)(3) of the Act. I further
find that by such discrimination the Respondent interfered with, restrained, and
coerced the applicants in the exercise of rights guaranteed in Section 7 of the Act,
thus violating Section 8 (a)( 1 ) of the Act.
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 business 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 burdening and obstructing commerce and
the free flow of commerce
V. THE REMEDY
On August 30 the Respondent offered employment to each of the four applicants.
One accepted and three declined. It is conceded that the offer of employment
served to terminate any possible backpay liability as of the date of offer. In order
to remedy the unfair labor practices found, it will be recommended that the Respond-
ent make whole John Hunsaker, Richard York, Jerry Douglass, and Robert Sellards.
for any loss of earnings sustained by any of them from August 14 through 30, by
payment to each of them whatever amount each might have earned in Respondent's
employ on or after the earlier date to August 30, less any interim earnings, and that
upon whatever loss of earnings is established, interest shall accumulate at the rate
of 6 percent per annum .2
Upon the foregoing findings, and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. By refusing to consider Hunsaker, York, Douglass, and Sellards for employ-
ment on August 14 because of a belief that they might be union members, the Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) and (3) 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, it is recommended that the Respondent, Biltmore Mobile
Homes, Boise, Idaho, its officers, agents, successors, and assigns, shall:
1. Cease and desist from-
(a) Conditioning consideration for employment upon lack of union membership.
(b) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies,
of the Act:
(a) Make Hunsaker, York, Douglass, and Sellards whole for any loss of earnings
attributable to the discrimination against them in the manner set forth in that sec-
tion of this Decision entitled "The Remedy."
2I.sis Plumbing d Heating Co., 138 NLRB 716.
BILTMORE MOBILE HOMES 1263
(b) Post at its plant in Boise, Idaho, copies of the attached notice marked
"Appendix." 3 Copies of said notice, to be furnished by the Regional Director for
Region 19, shall, after being signed by a representative of Respondent, be posted
by the Respondent immediately upon receipt thereof, and be maintained by it 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 to ensure that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 19, in writing, within 20 days from
the date of receipt of this Decision, what steps have been taken in compliance.4
It is recommended that unless on or before 20 days after the date of receipt of
this Decision the Respondent notifies the Regional Director, in writing, that it will
comply with the foregoing Recommended Order the Board issue an order requiring
the Respondent to take the recommended action.
3If 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 shall 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 "
'If this Recommended Order is adopted by the Board, this provision shall be modified
to read. "Notify the Regional Director for Region 19, in writing, within 10 days from
the date of this Order, what steps the 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-
tions Act, we hereby notify our employees that.
WE WILL NOT condition consideration for employment upon nonmembership
in any labor organization and we will not in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of their right to self-
organization, to join or assist any labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring membership in a
labor organization as authorized in Section 8(a)(3) of the National Labor
Relations Act.
WE WILL make whole John Hunsaker, Richard York, Jerry Douglass, and
Robert Sellards for any loss of earnings sustained by any of them by reason of
our failure to consider them for employment on August 14, 1963.
WE WILL NOT discriminate in regard to hire or tenure of employment or any
term or condition of employment against any employee because of member-
ship in or activity in behalf of any labor organization.
All our employees are free to become or remain or refrain from becoming or
remaining members of any labor organization.
BILTMORE MOBILE HOMES,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington, Telephone No. Mutual 2-3300,-
Extension 553, if they have any question concerning this notice or compliance with
its provisions. ` `"