Chickasha Mobile Homes, Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1973

202 N.L.R.B. 1057 (N.L.R.B. 1973)

CHICKASHA MOBILE HOMES
Chickasha Mobile Homes , Inc. and American Federa-
tion of Grain Millers . Case 18-CA-3534
1057
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
April 10, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On December 6, 1972 , Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding . Thereafter , Respondent filed exceptions
and a supporting brief , and the General Counsel filed
a brief in answer to Respondent 's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding -to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
The facts herein are based upon the pleadings and
admissions therein.
Chickasha Mobile Homes, Inc., the Respondent, a
Delaware corporation, is engaged in the manufacture and
sale of mobile homes, and operates a plant at Watertown,
South Dakota, the only location involved herein.
During a 1-year period, a representative period, Respon-
dent purchased and received, - in interstate commerce,
goods and materials valued in excess of $50,000 from
points located directly outside the State of South Dakota.
As conceded by Respondent and based upon the
foregoing, it is concluded and found that the Respondent
is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Grain Millers is and has been at
all times material herein a labor , organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Chickasha Mobile
Homes, Inc., Watertown, South Dakota, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, . Administrative Law Judge: This
proceeding, under Section 10(b) of the National Labor
Relations Act, as amended, was tried pursuant to due
notice on September 20, 1972, at Watertown, South
Dakota.
The charge was filed on April 26, 1972. The complaint in
this matter was. issued on August 9, 1972. The' issue
concerns whether Respondent discriminatorily discharged
Theodore Meyer because of his union membership and
activities on April 25, 1972, in violation of Section 8(a)(3)
and (1) of the Act.
All parties were afforded full opportunity to participate
in the proceeding.. Briefs have been filed by the General
Counsel and the Respondent and have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
- The evidence and facts relating to the issue as to "ether
Respondent discriminatorily discharged Theodore Meyer
on April 25, 1972, in violation of Section 8(a)(3) and (1) of
the Act may be summarized as follows:
1. Meyer initially was hired-by the Respondent in 1967,
quit in 1968, was rehired in the spring of 1969, and worked
thereafter for Respondent until he was discharged on April
25, 1972.
2. At the time of Meyer's discharge, he worked as an
electrician. There are no issues relating to his industrious-
ness or capability. The issues are to the question of whether
his discharge was because of his union activity or because
of "insubordination and demoralization of other employ-
ees."
3. Meyer commenced his activities on behalf of the
Union on December 19, 1971, by writing a letter to the
Union, received a response to said letter, later met with a
union representative and received union cards, and
commenced passing out union cards around February 28,
1972. Meyer passed out around 50 union cards to fellow
employees.' Thereafter, fellow employees returned signed
union cards to Meyer and he sent such cards to the Union.
During the union campaign, Meyer posted notice of union
meetings at Respondent's plant and attended such meet-
ings.
The Union filed a representation petition concerning
Respondent's employees on March 13, 1972, in Case
18-RC-8984. On March 31, 1972, a notice of representa-
tion hearing in Case 18-RC-8984 was issued and the
hearing date for such hearing was set for April'18, 1972, at
9:30 a.m. Meyer was the only employee who was present at
the scheduled hearing on April 18. At the scheduled
representation hearing, Meyer aided the Union by consult-
Respondent employs around 140 employees.
202 NLRB No. 161
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing with the union representatives about the issues in the head of the union and you're mad," and my wife
0
representation case. Present for the Respondent at the
scheduled representation hearing were Attorney Whittaker
and another attorney. Respondent's officials and Supervi-
sors Ronald Raczynski, John Yonker, and Monty Perkins,
and a Frank Moore whose status is unrevealed by the facts.
The parties executed a "Stipulation For Certification
Upon Consent Election" at the scheduled hearing on April
18, 1972, in Case 18-RC-8984. This stipulation was
approved by the Acting Regional Director for Region 18 of
the NLRB on April 21, 1972. Said stipulation set the date
for the representation election in Case 18-RC-8984 as
June 8, 1972.
4. Meyer testified to the effect that, after he started his
union activity in December 1971, remarks were made to
him about the effect of unionization. Meyer's testimony is
revealed by the following excerpts from his testimony in
the record.
A. I said, "I'll make one phone call and somebody
will be out here in 24 hours."
Q. -You said you knew what you were doing right
from the start?
A. Right.
Q. What did you mean by that?
A. I meant union cards I'd been hearing from this
thing from when I started, they'd get on the loud
speaker and holler, "If you were unionized you'd have
to do it," they'd holler over the loud speaker at me, just
to try to bug me.
Q. What you said to John Yonkers was, as I
understand what your testimony was, you knew what
you were doing right from the start?
A. Yes, by passing out these cards, and that's the
only thing I meant, not by trying to run the plant or
nobody else's plant, but they were picking on me ever
since I started that. .
I find this testimony to be of no value in the determining
of the issues in this case. It is too imprecise as to
circumstances. and as to identity of persons involved to
have probative value.
5. Meyer also testified with respect to remarks made by
employee Donny Yonker and Production Manager John
Yonker on April 15, 1972. Meyer and his wife had been to
a "Bingo" party and after such party had dropped by a
local barroom. Meyer's testimony as' to what occurred is
revealed by the following excerpts from his testimony:
A. April 15 I went to the Bingo game in South
Shore. That got over about 10 o'clock. We stopped in
the Harbor Bar and ordered a bottle of beer, and pretty
soon Donny Yonker came over.
Q. Who is Donny Yonker?
A. John Yonker's brother, and he said, "Are you
going to turn me on," and I says, "Get away from me,
you're drunk." We sat there, and pretty soon they left
and then come back and Don Yonker said he was
going to kick the shit out of me.
MR. WHITTAKER: IS that Don or John?
THE WITNESS: Don.
A. He said he was going to kick the shit out of me,
and I said, "Get away, the only trouble with you I'm
said-and he got up and left.
A. We come in the bar and sat down, and ordered
two bottles of beer, and he came over.
Q. Donny came over?
A.. Donny came over, and he said, "Are you going
to turn me on", and I says, "It looks like you've been
turned on already. Get away, you're drunk," and a little
while later John Yonker came over and said, "I hear
you're going to kick the shit out of me," and I said,
"Get away, ' you're drunk. The only thing that's ' the
matter with you, I'm under union." And my wife got up
and said something to him, and his wife pulled him
away. And the same night he got picked up for no
driver's license.
Meyer was the only witness who testified to this incident.
His testimony is confused and contradictory as to what
happened. I do not find such testimony to be of probative
value in determining the issues in this case.
.6. Meyer, during the period of employment by Respon-
dent, was prone to express his views in strong terms to
fellow employees and to Foreman Davis. The facts are
clear that such was true as regards his discussions with
Roger Liljegren when Liljegren was a rank-and-file
employee. The facts are clear also that this was true. as
regards Meyer's discussions with Davis. The overall facts
reveal that both Meyer and Davis had a genuine respectful
regard for each other, that they did have strong arguments,
and that such genuine regard continued despite the
arguments. Both Meyer and Davis revealed in effect in
their testimony that as men they still respect each other.
The facts are clear that Meyer complained about
management in terms of . remarks about. "piss poor
management" or similar terms in • the presence of and
directed to Foreman Davis. Davis testified in denial that
such remarks were directed specifically at him. Davis'
testimonial denial did not have the ring of truth. I credit
Meyer's testimony to the effect that he directed such
remarks to Davis. Davis' testimony as a whole with respect
to "rounds" of arguments with Meyer and to being present
when such remarks were made corroborates that Meyer's
testimony on this point was truthful.
The overall facts reveal that Foreman Davis was
interested in getting work done, considered Meyer a good
worker, and ignored such remarks.
The facts reveal that other employees complained about
management in the presence of foremen. Thus, employee
Gacke made remarks about "piss poor management" -in
the presence of or in such a manner that Foreman Davis
would hear such remarks.
7. The facts reveal that Respondent's foremen and
supervisors were not prone to discharge employees even for
serious incidents of misconduct in the preceding several
years before the discharge of Meyer.
The facts reveal that Respondent had an employee
named Sharp who engaged in several incidents of miscon-
duct. Two such incidents involved fights,, and one incident
involved shooting staples at an employee who was
working. All of these incidents were in front of or known to
CHICKASHA MOBILE HOMES 1059
supervisors. Respondent's action as to the fights merely
involved Production Manager Yonker's speaking to the
employees who had been in the fights.
One of the fights involved Sharp and Gacke. What
occurred is revealed by the following credited excerpts
from Gacke's testimony.
A. Well, we had the scaffold down. It was right
after the dinner break and we just finished a trailer, and
it was the whole trailer, or, part of it, and we had to
bring the scaffold to reload the panels of lumber and
one other helper, Danny Sharp, was harassing the two
men that helped us load it all the time, and I asked him
how about leaving them alone, "they've got some work
to do, and we want, to get this loaded and get back up
on the- roof." So he bad-mouthed me and used all the
profanity he could use, and I didn't respond, I said,
"Never mind, don't try to shove me around or there
will be trouble." I went ahead and loaded it and we had
the scaffold- and had it .up and I was getting more
lumber and he pushed me a couple of times, and the
second time I said, "Don't do it again," and as I was
climbing the steps he gave me -another shove and I
started laying into him.
Q. Who broke up the fight?
A. Doug Davis was out there. I did notice him
pulling on Dan Sharp. I didn't notice anybody else out
there because I was 'underneath the trailer.
Q. What, finally-
A. (Interrupting) Well, they ended up pulling them
on out and I gotup from underneath there and I had a
cut on my nose. I was bleeding and I was holding that
and I walked up to the time clock and punched out,
and said, "To hell with it, I'm going home for the day."
Q. Did Davis reprimand Sharp for fighting?
A. No.
Q. Did he reprimand you?
A. No.
Q. Did you have any conversation with Mr.
Yonker about it?
A. John came around; He was at the other end of
the plant, I guess. He asked me what happened, I told
him, and said I was highly teed off because I didn't like
doing things like this, and he said, Danny was kind of a
troublemaker and pain in the neck.
The other fight involved employees Virgil and Sharp.
What occurred is revealed by the following credited
excerpts from Swancutt's testimony.
Q. (By Mr. Frisch) Mr. Swancutt, were you ever
employed by Chickasha Mobile Homes?
A. Yes, from October 16, 1969, to May 31, 1972.
Q. Did you observe the fight that Mr. Gacke
testified to?
A. Yes, I did.
Q. Did you observe any other fights on company
time?
A. Yes, Danny Sharp and Virgil, I don't recall his
last name,' he was in the sheet metal department.
Q. Which one was first?
A. The one with Danny Sharp and Virgil, that was
the first one, and Vick Leonards was foreman then and
he walked around the two of them; he didn't do
anything to break it up.
Q. Were either one fired at that time?
A. No.
The staple shooting incident involved employees Swan-
cutt and Sharp. What occurred is revealed by the following.
credited excerpts from Swancutt's testimony.
Q. Were you also a victum of Danny Sharp's
horsing around?
A. Yes.
Q. What occurred?
A. Several different times, when I carried paneling
-I paneled the inner walls-he shot staples at me and
one time a staple hit me up in the forehead above the
eye. I went up to Leonards', John wasn't president at
the time, so I told Vick Leonards, so Vick Leonards
said he'd see about getting Danny Sharp checked, and
later in the day Vick Leonards came back to me and
said John wouldn't give him a check.
Q. In other words, wouldn't discharge him?
A. Wouldn't discharge him.
Q. Did you talk to John Yonker about that?
A. A couple of days later, as I recall, I went at the
time to try to see John. I didn't find John, and I talked
to Vick Leonards after that about the man, and I told'
him if I lost the eye or anything-the president of the
company-I said it wouldn't be Danny Sharp, whoever
else was throwing staples or shooting staples, I said if I
lost the eye it would be somebody else's job rather than
the guy;
Q. Who did you say that to?
A. I think it was Vick Leonards, I don't remember
if I got to John on that or not.
Q. When was this, about?
A. This was a good year and a half ago.
Q. And Danny Sharp was not fired over this
incident, or was he reprimanded, to your knowledge?
A. No. Then I recalled ... .
8. Roger Liljegren was made a foreman about 2 weeks
before April 25, 1972.
9. On or before April 24, 1972, Respondent hired an
employee named Schooley. On the morning of April 24,
1972, Foreman Liljegren assigned Schooley to work
installing water heaters. The employee who had been doing
such work was Randy Rody. Rody was present on this
date, but the record does not reveal his work assignment.
Meyer noticed the assignment of work to Schooley.
Meyer complained to employee Rowe around 9 a.m.,
about this assignment. Employee Dally was present and
heard Meyer's remarks. What occurred is revealed by the
following credited excerpts from Rowe's testimony.2
A. It was on April 24, I come along to check out
the third .coach on.the finished line, and I was, I went
through the door Ted was putting on a porch light, and
he says, "Isn't that something?" And I kind of. turned
around' and said, "What is that, Ted?" He said, "They
2 1 discredit Meyer's denial-of such conversation. Considering,Meyer's persuaded that. he has honestly confused the timing of events on April 24,
propensity to complain, his truthful appearance in this proceeding, I am 1972, and has honestly forgotten this conversation.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should put a new man on this job that doesn't know a
thing about it." And he also stated that, "It looks like
real piss poor management."
Q. That was the statement he made to you?
A. Yes.
Q. Do you remember approximately what time of
day that was?
A. Oh, middle of the forenoon, about 9:30, I would
say.
Around 4:15 p.m. Meyer spoke to Foreman Liljegren
about the work assignment to Schooley. The conversation
occurred in the presence of a group of employees. What
occurred is essentially revealed by the following credited
excerpts from Meyer's testimony.
A. I told Roger, "How come you're putting that
man in that job," I said, "He doesn't know anything
about it, why didn't you put me or Greg Mack in
there," and, he said, "He's got to learn sometime," and I
said, "It must be piss poor management," and walked
away.
Meyer testified to the effect that he used the term "piss
poor management" only once. Liljegren testified to the
effect that Meyer used the term "piss poor management"
two or three times in the conversation. Considering the
total facts and logical consistency thereof, I credit Liljegren
over Meyer on this point.
10. After the foregoing incident, Foreman Liljegren
spoke to Foreman Davis. The facts as to what was
discussed between Foremen Liljegren and Davis were
presented only by the testimony of Liljegren. It is clear that
Liljegren's testimony is conclusionary and fragmentary in
nature. Such 'testimony is revealed by the following
excerpts from Liljegren's testimony.
Q. What did you do after this conversation with
Meyer? .
A. Well, Doug Davis and I were-I went and
talked to him about it, and then he says, "We better go
see John about it."
Q. John Yonker?
A. Yes.
I credit Liljegren's testimony to the effect that he
discussed what had occurred between him and Meyer and
to the effect that he and Davis decided to go to see
Production Manager John Yonker.
11. Around quitting time on April 24, 1972, Foremen
Davis and Liljegren went to see Production Manager John
Yonker about the incident previously described as occur-
ring around 4:15 p.m. wherein Meyer made statements
about "piss poor management" to Liljegren.
The evidence as to what Davis and Liljegren said to
Production Manager Yonker was presented loosely and in
a conclusionary manner. Thus, Liljegren merely testified to
the effect, and I credit such testimony, that he and Davis
went to see Yonker and discussed "seeing if we could get
rid of Ted."
Cross-examination of Liljegren, however, indicates that
he was questioned as to whether he thought Meyer should
be discharged on this occasion. As indicated, the testimony
of Respondent's witnesses was. fragmentary and conclu-
3 Considering all of the facts in the case and logical consistency thereof, I
discredit Yonker's testimony to the effect that he would have terminated
sionary. Liljegren, on cross-examination, was asked if his
opinion had been asked as to whether or not Meyer should
be discharged. Liljegren testified to the effect that he had
been asked as to whether Meyer should be discharged and
that he had replied, "Yeah, he should be." Liljegren did not
identify the "management" person who questioned him as
to whether Meyer should be discharged, nor did Liljegren
in his testimony place the timing of such questioning. It is
clear from all the facts of this case that if such question
were asked and answered, it reasonably occurred in the
discussion between Foremen Davis and Liljegren and
Production Manager Yonker on April 24, 1972. I credit
Liljegren's testimony to the effect that he was questioned
as to whether he thought Meyer should be discharged and
to the effect that he replied that he should be. Considering
all of the facts, I conclude that Yonker or Davis asked such
question as to whether Meyer should be discharged and
that the question and Liljegren's answer that Meyer should
be discharged occurred in the context of the discussion
between Foremanen Davis and Liljegren and Production
Manager Yonker on April 24, 1972.
Davis did not testify concerning what he and Liljegren
said to Yonker. Davis was questioned about remarks he
made to management concerning the incident. The
questions directed to Davis on this point were leading in
nature and entitled to very little weight. I am persuaded
that at most Davis' testimony would establish remarks
made at a time other than the conversation on April 24 to
Production Manager Yonker.
John Yonker's testimony as to what was discussed
between Foremen Davis and Liljegren and' himself is
revealed by the following excerpts from the record.
Q. Tell me, if you would, just as narrative, what
happened, what your involvement was.
A. Oh, they was talking about how Ted was saying
piss poor management.
Q. They?
A. Doug and Roger.
Q. O.K.
A. And they was kind of concerned about it
because it was getting kind of loud. So I said I would
check with Monty in the morning and see what we
could do.
Considering the foregoing and a fair inference from all of
the facts, I conclude and find that Foremen Davis and
Liljegren saw Production Manager Yonker, told him about
the statements by Meyer, engaged in a discussion concern-
ing Meyer's union activities, and discussed whether or not
Respondent could get rid of Meyer.
12. The facts clearly reveal that Production Manager
John Yonker knew of Meyer's activities on behalf of the
Union at the time when Foremen Davis and Liljegren
spoke to him about the April 24, 1972, incident. Yonker
decided because of all of the circumstances, the incident,
and Meyer's union activities, that he should contact Plant
Manager Perkins.3
13. On the morning of April 25, 1972, Production
Manager Yonker spoke to Plant Manager Perkins about
the incident of April 24, 1972, involving Meyer and
Meyer immediately if he had been unaware of his union activity.
CHICKASHA MOBILE HOMES 1061
Foreman Liljegren. What occurred is essentially revealed
by the following credited excerpts from Perkins' testimony.
A. Well, it was the next morning, which would be
April the 25th, about 7 o'clock in the morning, John
came to me and-
Q. (Interrupting) This is John Yonker?
A. (Continuing)-John Yonker came to me and
told me that, the testimony that's been given here is
what he referred to, and he told me that he didn't know
what to do about the situation due to our involvement.
Q. Be absolutely clear about,this. What situation,
what involvement?
A. All right, that Ted Meyer had confronted Roger
Liljegren and told him it was piss poor management,
that Roger and Doug had talked to John the evening
before that morning when John Yonker was talking to
me, and he told me they had talked about it and they
asked John to see what we could do about it, if
anything. John asked me what I thought we could do
and I said, "Under the circumstances, I think we
should call Chickasha," and we did make the phone
call.
Q. What are the circumstances you're talking
about? When you say "circumstances", are we talking
about a pending union election, or are you talking
about something else?
A. Well, the pending union election, yes.
It is clear from all the facts that Yonker discussed with
Perkins the April 24, 1972, incident between Meyer and
Liljegren the fact that Meyer had been engaged in union
activity, and that he would like to discharge Meyer but did
not know what to do. Perkins decided to call the home
office to see what should be done.4
14. Shortly thereafter on April 25, 1972, Plant Manager
Perkins telephoned Respondent's home office concerning
the Meyer incident on April 24, 1972. Ronald Raczynski,
general manager for Respondent, was the recipient of
Perkins' telephone call. Ronald Raczynski had the tele-
phone call converted into a three-way conference call.
Thus, Perkins and Yonker were at one telephone, Ronald
Raczynski was on another telephone, and Attorney
Whittaker was on another telephone as part of the
conference call.
Respondent's witnesses, Yonker and Perkins, testified to
the effect that the telephone call to Ronald Raczynski
occurred. Except for brief and conclusionary statements,
their testimony does not reveal what occurred. Ronald
Raczynski testified in more detail as to what occurred in
the initial telephone conference call with Perkins and
Yonker. It is clear that Yonker and Perkins discussed the
April' 24, 1972, Meyer's incident with Raczynski and
Attorney Whittaker, the remarks made by Meyer, that
Liljegren was a new foreman, that Liljegren had not
appreciated the remarks, that Liljegren had not known
what to do, that Liljegren had asked Foreman Davis for
advice, that Foremen Davis and Liljegren had spoken to
Production Manager Yonker, that Yonker had spoken to
Plant Manager Perkins, that they were aware of Meyer's
union activity, that Perkins and Yonker considered the
remarks by Meyer to be a demoralizing type comment, that
Yonker and Perkins wanted Ronald Raczynski's approval
to terminate Meyer, and that they were seeking such
clearance because Meyer had been involved in union
activity.
Although the testimony clearly does not reveal the
details with exactitude as to who said what or the timing of
remarks with other remarks, it is clear that a discussion
occurred concerning what Respondent would have done
absent Meyer's engaging in union activity. Considering the
total circumstances, I find it proper to infer that Respon-
dent's attorney, Whittaker, advised Respondent' s officials
during the conference of their right to discharge Meyer if
they would have discharged Meyer if he had not engaged
in union activity. I find it proper to infer that either Ronald
Raczynski or Whittaker questioned Yonker as to whether
he would have discharged Meyer if he had not been
engaged in union activity. Yonker told Ronald Raczynski
that he would have discharged Meyer on the spot if he had
not been engaged in union activity, that he had checked
with Perkins because Meyer had been engaged in union
activity, and that Perkins had thought it best to check with
the home office.
Ronald Raczynski indicated to Perkins and Yonker that
there was -cause to discharge Meyer because of "insubordi-
nation and demoralization of other employees" but that
the facts should be verified by written statements and
reported back before the discharge of Meyer.5
15. On April 25, 1972, following the above telephone
conference with the home office, Production Manager
Yorker proceeded to prepare written memorandums and
have the same signed by various persons having knowledge
of the remarks made by Meyer on April 24, 1972. Yonker
secured such signed memorandums from Foreman Lilje-
gren and employees John W. Rowe, Jake Daily, and
Martin Lehna.
Yonker secured a signed statement , as indicated, from
Lehna, to the effect that Lehna overheard the remarks
made by Meyer to Liljegren. Around this time Rowe and
Dally indicated to Foreman Liljegren that they had heard
Meyer made a similar remark on the morning of April 24,
1972. Liljegren reported this to Yonker who secured a
statement to such effect from Rowe and Dally.
During Respondent's activity in securing the statements
referred to above, employee Lehna, who gave a statement
to Yonker, made remarks to Liljegren as revealed by the
following credited excerpts from Liljegren's testimony.
A. He thought that was a heck of a deal. Ted
working out there, he wasn't tied to the job, you know,
if he didn't like it out there he could leave whenever he
wanted to.
° Considering all of the facts in the case, I discredit Perkins' conclusion-
ary testimony to the effect that Yonker would have terminated Meyer on
the spot if it had not been for Meyer's union activity.
5 The facts are based upon a composite of, the credited aspects of
testimony of Ronald Raczynski, Liljegren, Perkins, and Yonker and an
inference from the logical consistency of facts. Liljegren testified to the
effect that Rowe's remarks about Meyer's remarks about "piss poor
management" came to his attention after Meyer's discharge. Yonker
testified to the effect that Rowe told Liljegren of such remarks during the
April 25 investigation of such remarks about "piss poor management."
Ronald Raczynski testified to the effect that the motivation of "insubordi-
nation . and demoralization of the employees" came from this first
conversation as the conclusion of why Respondent was terminating Ted
Meyer.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. This is what Martin Lehna said?
A. Yeah, he said he shouldn't be knocking. manage-
ment.
During Respondent's activity in securing the statements
referred to above, an employee, unidentified except to the
extent that Yonker, stated that it could have been Jake
Dally, asked Yonker why he was letting Meyer "shoot off
his mouth."
I note the remarks made to Liljegren by Lehna, and to
Yonker, by an employee as indicated above. Under the
circumstances, coming in the midst of a verification
investigation following a preliminary tentative decision to
discharge Meyer, I am not persuaded that such remarks
have significant value in determining motivation in this
case. Considering the totality of the facts, I find that such
remarks are outweighed by the factors tending to reveal
improper motivation.
16. After Yonker had secured the signed statements
referred to above, Perkins and Yonker called the home
office again. There again occurred a telephone conference
call with the parties to -the conference call being Respon-
dent's attorney (Whittaker) and officials Ronald Raczynski
and Stanley Raczynski, Perkins, and Yonker.
Perkins and Yonker read the memorandum statements
referred to above to the two Raczynskis and Attorney
Whittaker. President Stanley Raczynski told Yonker and
Perkins that Meyer would have been terminated under
normal circumstances, that the matter would be treated as
if there were no union activity at all, and that Meyer
should be terminated.
17. Production Manager John Yonker,after the above
telephone conference call, proceeded to discharge Meyer.
What occurred is revealed by the following credited
excerpts from Yonker's testimony.
Q. At the conclusion of that telephone conversa-
tion, what did you do next?
A. I went to my office and called Ted to the office
and I asked him if he had his tools and he said, yes.
And I said, "Lay them on my desk." And he laid them
on my desk and I handed him his checks. And he said
what was this for and I said, "Insubordination and
demoralization of other employees."
Q. O.K. Go ahead, tell me what next happened.
A. Then he asked me if I knew what I was doing or
he said, "Do you guys know what you are doing?" And
I said, "Yes."
Q. Excuse me, go ahead.
A. He asked me, he said, "Do you guys know what
you are doing?" And I said, "Yes." And he kind of
laughed and said, "I knew whatI was doing right from
the start."
Q. What happened then?
A. Then he tried to call his wife and couldn't get a
hold of her, so I gave him a ride home.
Q. You gave him a ride home?
A., Yes.
Either before or shortly after the foregoing event, Yonker
prepared termination papers for Meyer. Such papers
reflected that the reason for Meyer's termination was
6 The facts are based upon Urban's credited testimony. Swancutt
testified about similar remarks made in the presence of Foreman Davis after
"Insubordination and Demoralization of other employ-
ees."
18. ' On or about April 26, .1972, Respondent prepared
and distributed the following letter to its employees.
Chickasha Mobile Homes Inc.
April 26, 1972
Dear Fellow Employees:
How come Ted Meyer has been discharged?
This is a question we have been asked. Here is the
answer:
On April 24th, Ted Meyer of the plumbing and
electrical department criticized his foreman about the
assignment of an employee in the department. The
Foreman, Roger Liljegren, gave Ted Meyer an expla-
nation.
Ted Meyer then, in a loud voice stated "That is
p-poor management". This remark was made several
times to Roger.
Ted Meyer also made these remarks to several other
employees throughout the plant.
It became clear. to us that Ted Meyer was deliberately
attempting to demoralize and upset both his supervisor
and other employees.
Because Ted Meyer was a leader for the Union
attempting to organize our plant, Chickasha manage-
ment was concerned that any desciplinaryaction might
be interpreted as an unfair labor practice.
After gathering all of the facts about the incidents
regarding Ted Meyer's behavior, including the signed
testimony of several employees who heard these very
insubordinate statements, Chickasha management
asked ourselves "What disciplinary action would we
take if any other employee created these incidents?"
It is ' the unanimous opinion of the Foremen, Plant
Production Manager, and President of Chickasha
Mobile Homes, Inc., that this type of conduct leaves us
no alternative, whether the employee is a union leader
or not. We feel that all employees must be treated the
same. It is unfair to the good employee to allow
another employee to get by with gross insubordination.
Management at Chickasha wants to do what is right.
If you have questions, please feel free to discuss them
with me.
JOHN YONKER
/S/ JOHN W. YONKER.
19. On April 26, 1972, in June 1972, and in early
September 1972, employee Urban made remarks directed
to Foreman Liljegren about "piss poor management."
Foreman Liljegren took no action with respect to such
remarks made by Urban.6
Considering all of the foregoing, I am persuaded and
conclude and find that the facts preponderate for a finding
that Respondent discriminatorily discharged Meyer on
April 25, 1972. The facts are clear that Meyer engaged in
substantial union activity and that Respondent knew that
receipt of Respondent's April 26, 1972, letter. I found Swancutt's testimony
on this point too confusing to constitute persuasive evidence.
CHICKASHA MOBILE HOMES 1063
he was a union adherent and had been the lone employee
present with union officials on April 18, 1972, when a
scheduled representation hearing resulted in a stipulation
for a consent election . Excepting for the events as to
Meyer 's discharge , there is no evidence of union animus in
this case . This, however, does not preclude a finding of
union animus when disparate treatment reveals that
discriminatory motivation is present.
Respondent 's motivation has to be determined by
considering the motivation of all who participated in the
decision to discharge Meyer . In this case , the persons who
participated in the decision to discharge Meyer were Davis,
Liljegren, Perkins, Yonker, the two Raczynskis, and
Attorney Whittaker.
The facts in this case reveal that Meyer had made
remarks about "piss poor management" to Foreman Davis
on a number of occasions prior to Meyer 's discharge and
that Foreman Davis took no action as to such remarks.
Under such circumstances, absent the knowledge of
Meyer's union activities , I am persuaded that Davis would
have advised Liljegren that the matter should be ignored. I
am persuaded that Davis' knowledge of Meyer 's union
activities contributed to his and Liljegren 's reporting the
remarks (of Meyer to Liljegren about "piss poor" manage-
ment) to Production Manager Yonker.
Liljegren 's testimony about the incident and as to how he
felt is not persuasive . Rather, I am persuaded that his
testimony that he felt "bad" revealed an attempt to try to
say what he thought was expected rather than to set forth
true facts as to his motivation . I find Foreman Liljegren's
disparate treatment of employees Meyer and Urban as to
the use of the words "piss poor management" directed to
him to be revealing of a discriminatory attitude toward
Meyer because of his union activity . No evidence of
explanation of this disparate treatment was offered. The
incident of Urban 's use of the words "piss poor manage-
ment" on April 26, 1972, the same date that Respondent
expressed by its letter a clear policy that such conduct was
serious and warranted a discharge , adds weight to such a
conclusion and belief of discriminatory attitude.
The facts also reveal that Yonker 's past handling of
"fights" and related misconduct is clearly indicative that
Yonker was not prone to take harsh action against
employees . I am persuaded from all the facts that , absent
knowledge of Meyer's union activity, Yonker would have
solved the problem in the case of Meyer without discharge
or consultation with other officials.
I am persuaded that the two Raczynskis , Perkins, and
Attorney Whittaker were presented incomplete facts, that
they were not aware of Davis' condonation of similar
statements (of "piss poor management") by Meyer, that
they were not aware of Yonker 's lenient handling of
misconduct, and that they did not know of the true
motivation in Yonker's, Davis', and Liljegren's minds,
contributing to the reason that they were being consulted
as to the discharge of Meyer.
Considering all of the foregoing, I am persuaded that
Meyer 's union activity was the contributing cause as to
why Yonker and Perkins consulted with the home office, as
to Meyer's discharge . I am persuaded therefore , that Meyer
would not have been discharged but for his union activity,
and that Respondent , by the discharge of Meyer on April
25, 1972 , violated Section 8(a)(3) and ( 1) of the Act. I so
conclude and find.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring, in connection with the Respondent's
operations described in section I, above , have a close,
intimate , and substantial relationship 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.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices , it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
It having been found that the Respondent discharged
Theodore Meyer on April 25, 1972, in violation of Section
8(a)(3) and (1) of the Act, the recommended Order will
provide that Respondent- offer him reinstatement to his
job, and 'make him whole for loss of earnings within the
meaning and in accord with the Board's decisions in F. W.
Woolworth Company, 90 NLRB 289; Isis Plumbing &
Heating Co., 138 NLRB 716, except as specifically mod-
ified by the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found , the recommended Order will provide that the
Respondent cease and desist from in any other manner
interfering with, restraining , and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Chickasha Mobile Homes, Inc., the Respondent, is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. American Federation of Grain ,Millers is, and has
been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Theodore Meyer on April 25, 1972,
Respondent has discouraged membership in a labor
organization by discriminating in regard to tenure of
employment, thereby engaging in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act.
4. By the foregoing and by interfering with, restraining,
and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondent engaged in
unfair labor practices proscribed by Section 8(a)(1) of the
Act.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
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?
Respondent, Chickasha Mobile Homes, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating against
employees in regard to hire or tenure of employment, or
any term or condition of employment because of their
union or protected concerted activities. J
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act except to) the extent that such
rights may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
2. Take the following affirmative action, which it is
found will effectuate the policies of the Act:
(a) Offer to Theodore Meyer immediate and full
reinstatement to his former position or, if such position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority, or other rights previously.
enjoyed, and make him whole for any loss of pay suffered
by reason of the discrimination against him in the manner
described above in the section entitled "The Remedy"
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at Respondent's plant at Watertown, South
Dakota, copies of the attached notice marked "Appen-
dix."8 Copies of said notice, on forms provided by the
Regional Director for Region 18, after being,duly signed
by Respondent's representatives, shall be posted by it
immediately upon receipt thereof, and be maintained by
Respondent for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to employ-
ees 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.
(d) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of receipt of this
Decision, what steps the Respondent has taken to comply
herewith.
7 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.
8 In the event that the Board's Order is enforced by a Judgment 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
WE WILL offer to Theodore Meyer immediate and
full reinstatement to his former position or, if such
position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other
rights previously enjoyed, and make him whole for any
loss of pay suffered by reason of the discrimination
against him.
WE WILL NOT discharge or otherwise discriminate
against employees in regard to hire or tenure of
employment, or any term or condition of employment
because of their union or protected concerted activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act except to the
extent that such rights may be affected by lawful
agreements in accordance with Section 8(a)(3) of the
Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any labor
organization, except to the extent provided by Section
8(a)(3) of the Act.
CHICKASHA MOBILE HOMES,
INC.,
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 316 Federal Building, 110
South 4th Street, Minneapolis, Minnesota 55401, Tele-
phone 612-725-2611.
F