Fleetwood Trailer Co., Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1965

153 N.L.R.B. 425 (N.L.R.B. 1965)

FLEETWOOD TRAILER CO., INC. 425
Processing and Distribution and Allied Industries Employees, Local 290, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other union.
WE WILL NOT threaten you with reprisals or piomise any benefits to discourage
you from joining any union.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act, to join a union of your own choice or not to engage in any union
activities.
WE WILL offer reinstatement to P. E. Cogdell and John Cogdell.
WE WILL revoke the wage cut which became effective July 1, 1964.
WE WILL make whole P. E. Cogdell, John Cogdell, and all employees in the
appropriate unit who were on the payroll July 1, 1964, or who came on the
payroll after that date, for any loss of wages due to the wage cut.
WE WILL, upon request, bargain collectively with the union named above, if
an understanding is reached, sign an agreement covering such understanding.
The unit represented by this union includes all our truckdrivers, helpers, and
warehousemen, but excludes office clerical employees, professional employees,
guards, and supervisors.
SAFWAY STEEL SCAFFOLDS COMPANY OF GEORGIA,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify P. E. Cogdell and John Cogdell if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion 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 material.
Employees may communicate directly with the Board's Regional Office, Room 706,
Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No. 228-7711,
if they have any question concerning this notice or compliance with its provisions.
Fleetwood Trailer Co ., Inc. and Lionel Richman . Case No. p21-
CA-6160. June 34,1965
DECISION AND ORDER
On April 16, 1965, Trial Examiner Wallace E. Royster issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Lioard 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
153 NLRB No. 43.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
Respondent, Fleetwood Trailer Co., Inc., Riverside, California, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.'
1 The telephone number for Region 21, appearing at the bottom of the Appendix attached
to the Trial Examiner ' s Decision , Is amended to read: Telephone No 688-5229.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was tried before Trial Examiner Wallace E. Royster in Los Angeles,
California, on February 17, 1965.1 At issue is whether Fleetwood Trailer Co., Inc.,
herein called the Respondent, since August 20, 1964,2 has unlawfully discriminated
against Mary Nevins, Lonny Painter, Luther Malzahn, James Fuller, David Davis,
and Donald Kluth, by refusing to reemploy these individuals upon unconditional
application following the termination of an economic strike.
Respondent, by its answer, asserts that these strikers had been permanently replaced
prior to their applications and that no unfair labor practice was committed.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation engaged at Riverside, California, in the
manufacture of mobile homes. Annually, it receives goods valued at in excess of
$50,000 from points outside the State of California, and sells and distributes products
valued at more than that amount directly to points outside the State of California.
It is conceded, and I find, that the Respondent is an employer engaged in commeice
and in a business affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
H. THE LABOR ORGANIZATION INVOLVED
San Bernardino-Riverside Counties District Council of Carpenters, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, herein the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On August 6, in support of the Union's bargaining demands, Respondent's employ-
ees began a strike which ended on August 18. During this period, some of those on
strike returned to work and some new workers were hired. At the conclusion of the
strike the Respondent had 71 employees on its payroll. On August 18 the Respond-
ent and the Union met with the result that the Union agreed to terminate the strike
and accept Respondent's last contract offer. Attorney Jerome Byrne, the Respond-
ent's representative, testified that on this occasion he told the union representatives
that the plant was not in need of employees and that no strikers could be given imme-
diate employment. Byrne said that he would not put the strikers on a preferential
hiring list but assured the Union that the Respondent would not discriminate in any
way against them. Byrne said, in effect, that any striker who wished to return to work
1 Charge filed and served September 10, 1964 Complaint alleging violations of Sec-
tion 8(a) (1) and (3) of the Act issued December 11, 1964.
2 All dates hereafter mentioned are in 1964
FLEETWOOD TRAILER CO., INC. 427
should make known his desire to the Respondent and renew his application at the
expiration of succeeding 30-day periods if he maintained interest in returning to work.
Byrne made it clear to the Union, he testified, that the Respondent would consult the
list of striker applicants whenever a vacancy developed, but that the Respondent
would feel free to hire from any source.3 On August 20 the six individual strikers
named earlier in this Decision applied for reemployment. Before any of them were
reemployed the Respondent hired, in the period from October 8 through 16, six
individuals who had not previously been in Respondent's employ. It is the contention
of the General Counsel that the six striker applicants should have been returned to
work in these vacancies.
Before the strike began the Respondent had a work force of sufficient size (about
108) so that it programed the building of 20 mobile homes a week. When the
strike began, the Respondent decided to cut this programing in half and canceled or
postponed deliveries of supplies and materials consistent with this decision With the
return of some of the strikers before August 18 and the employment of new workers,
it was decided to attempt the production of about 15 trailers a week. At all times
it was Respondent's intention to return to the full production of 20 trailers as soon
as a sufficiently experienced work force was assembled and materials were at hand.
This goal was reached about December 13.
Respondent contends that at the expiration of the strike, because it had then no
need for additional employees, all of the strikers had been replaced, that in conse-
quence they thereafter had no employment rights with the Respondent and were
entitled to no more than a nondiscriminatory consideration of their applications for
work. The position of the General Counsel is that the lack of need for additional
workers on August 18 represented a temporary condition; that the striker applicants
named herein had not then been replaced
The six applicants visited the plant or telephoned the Respondent on a number of
occasions on and after August 20. All were reemployed in the period from Novem-
ber 2 through December 14.
The position of the Respondent that all of the strikers had been replaced perma-
nently before they offered to return to work is based upon the circumstance that on
August 20 the Respondent had no immediate need for more employees. This cir-
cumstance is not challenged by the General Counsel and I find it satisfactorily to be
established by the evidence If it is true that the strikers had been permanently
replaced, as the Respondent contends, then the six applicants named in the complaint
had lost any right to reinstatement or preferential hiring. This is the status, in the
view of the Respondent, that they occupied. Each was required to register his con-
tinued interest in employment with the Respondent every month and failure to do so
was "disqualifying." Respondent did not however apply this rule strictly and called
to the attention of a union representative the fact that some had failed to register
within the set period. When these tardy ones appeared at the plant they were per-
mitted to regain their status as applicants. However, in my view of the case, none of
the six had been permanently replaced when they offered to return to work. There
is no evidence that any person was hired during the strike specifically to fill the job of
any of them. The lack of job openings on August 20 was a temporary condition which
the Respondent knew would change and intended to change It was its purpose, later
achieved, to return to full production and to a full crew as soon as practicable. I
think it thus inaccurate to say that any of the applicants concerned here had lost his
employment with the Respondent by reason of replacement.
The Board has held that employees who have not been permanently replaced
before the end of a strike must be reinstated to their former positions as work becomes
available and before new employees are hired. This holding is qualified only by the
condition that a refusal to reinstate may be justified upon a showing by the employer
that he acted upon nondiscriminatory considerations .4 The Respondent has under-
taken to make that showing in respect to the six applicants
The Respondent attempts to hire what it describes as willing workers, between the
ages of 19 and 25, and with satisfactory employment histories No particular expe-
rience is required.
The first hire after the end of the strike was of Eddie Latinsky as a cabinet
assembler on October 8; the second, in the same classification, of Gilbert Herrara on
October 12 Neither had worked at any earlier time for the Respondent and their
3 The 'Union bowed to this decision
4 Philanz Oldsmobile, Inc., 137 NLRB 867, 871. Brown and Root, Inc, et al, doing
business as 9otint venturers under the name of Ozark Dam Constructors, 132 NLRB 486,
493-494, arises in a different factual setting I find that holding concerning the right
of reinstatement of economic strikers to jobs not open at the time of application not
controlling here.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
qualifications for hire do not appear in the record. Of the six applicants named in
the complaint, Malzahn, Kluth, Nevins, and Fuller had worked in cabinet assembly
before the strike. There is no testimony on the part of the Respondent to indicate
why none of these (other than Fuller) was reinstated to the positions for which
Latinsky and Herrara were hired.
Also on October 12 Jimmy Benson was hired as a flooring employee and Everett
Leffen as a sidewall employee. Plant Manager Cecil B Chapman testified that Kluth,
Nevins, and Malzahn were not physically capable of handling these jobs and that for
the same reason none of the three was qualified to handle the job of cabinet assembler
for which Billy Valk was hired on October 16. Chapman also testified that the job
of finisher, for which a new employee Dwayne Nash was hired on October 13, was
unsuited to Nevins because she could not perform all of its functions; that he pre-
ferred to have a younger man than Malzahn on that job; and that he had "serious
doubt" that Kluth, because of impaired eyesight, could handle it. The qualifications
of none of the newly hired employees is mentioned in the record.
Chapman testified that none of the striker applicants was disqualified for these job
opportunities on the basis of their prior work records with "possibly one exception,'
Fuller. Chapman explained that Fuller was absent on a number of occasions but,
more importantly, about a week before the strike began had engaged in a "small
hassle" with his supervisor. The incident was reported to Chapman who considered
that it "bordered on insubordination."
I note that no unfair labor practices are alleged other than in respect to bringing
the striker applicants back to work and that, save for whatever inferences may be
drawn from action or lack of action in that connection, no union animus is alleged
or shown. I am not convinced that the Respondent had a conscious purpose to
discriminate against the strikers but I nonetheless find that it did so
Basically, this discrimination consists in the Respondent's position that at the con-
clusion of the strike all strikers had been replaced. Thereafter, instead of treating
those strikers who asked for reinstatement as their status required, the Respondent saw
them only as applicants for employment who were entitled to no more than nondis-
criminatory consideration for job openings. But they had a different standing-they
were employees. Their right to employment was not enhanced by reason of the
strike but as long as they were not permanently replaced, neither was it diminished.
It does not appear that the Respondent considered Latinsky and Herrara to be better
qualified to work in cabinet assembly than Nevins, Malzahn, Fuller, or Davis: or
that Benson, Leffen, Nash, and Valk were better qualified as workmen than Painter,
Fuller, or Davis. Nevins could not handle a job unsuited to a female, Kluth could
not work where normal eyesight was a requirement, and Malzahn was disqualified
only to the extent that any man of his age (53) might have been. I find that the six
job openings in October could have been filled by the striker applicants and, had the
Respondent considered them as employees rather than as mere applicants for hire,
would have been so filled This is so even though the Respondent had some reason
for dissatisfaction with Fuller. The Respondent did not consider that he was dis-
qualified for employment.
I find that by failing to return Lonny Painter, Luther Malzahn, David Davis, Mary
Nevins, Ronald Kluth, and James Fuller to employment when the October vacancies
developed, the Respondent discriminated against these individuals because of partici-
pation in a lawful strike, thus discouraging membership in and activity on behalf of
the Union. The Respondent has thereby engaged in unfair labor practices within
the meaning of Section 8(a) (3) of the Act
This conduct interfered with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act and, I find, the Respondent thereby engaged
in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The actions of the Respondent described in section III, above, occurring in connec-
tion with its operations 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
Having found that the Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the purposes of the Act All of the affected individuals
have been rehired and there is no claim that they were not fully reinstated. The
Respondent shall make each whole for any loss of earnings attributable to the failure
FLEETWOOD TRAILER CO ., INC. 429
on the part of the Respondent to i eturn them to employment in the period from
October 8 through 16. This loss shall be computed in the manner prescribed by the
Board in F. W. Woolworth Company, 90 NLRB 289, and shall bear interest at the
rate of 6 percent per annum computed quarterly.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following-
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the Act.
2. The Respondent is an employer within the meaning of Section 2(2) of the Act,
and is engaged in commerce or in an operation affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
3. By failing to return Painter, Matzahn, Davis, Nevins, Kluth, and Fuller to
employment in October 1964, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in the case, I recommend that Fleetwood Trailer Co., Inc., Riverside, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or lawful strike activity in behalf of any labor
organization by discrimination in regard to hire or tenure of employment or any term
or condition of employment.
(b) In any like or similar manner interfering with, restraining, or coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the purposes of
the Act:
(a) Make Painter, Malzahn, Davis, Nevins, Kluth, and Fuller whole for any loss
of earnings in the manner set forth in the portion of this Decision entitled "The
Remedy."
(b) Post at its plant in Riverside, California, copies of the attached notice marked
"Appendix." 5 Copies of said notice, to be furnished by the Regional Director for
Region 20 shall, after being duly signed by an authorized representative of the
Respondent, be posted by it for a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that such notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21, in writing, within 20 days from
the date of receipt of this Recommended Order, what steps have been taken in
compliance.6
In the event 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 Ex-
aminer" in the notice. In the further event that the Board's order be enforced by a
decree of a United States Court of Appeals, the words, "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words, "a Decision
and Order"
6If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 21, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discriminate against any employee because he has engaged in
a lawful strike or has participated in concerted activity in behalf of any labor
organization.
WE WILL make Mary Nevins, Lonny Painter, Luther Malzahn, James Fuller,
David Davis, and Ronald Kluth whole for any loss of earnings attributable to
the delay in returning them to work.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT by discriminating against strikers or in any like or similar
manner interfere with, restrain, or coerce employees in the exercise of rights
guaranteed in Section 7 of the Act.
FLEETWOOD TRAILER CO., INC.,
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 maternal.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. 688-5204.
Albuquerque Phoenix Express and Chauffeurs , Teamsters and
Helpers, Local 492, affiliated with International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America (Ind.). Case No. £8-CA-1140. June 24, 1965
DECISION AND ORDER
On March 17 1965, Trial Examiner James R. Webster issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and the General Counsel filed
an answering brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations as modified herein.
In finding that Respondent's over-the-road drivers stationed at the
Albuquerque terminal constituted an appropriate unit for bargaining,
the Trial Examiner excluded from this unit Respondent's "bobtail"
truckdriver stationed in Hobbs, New Mexico, primarily because he was
a local pickup and delivery driver. We note, in addition, that Respond-
ent's president testified that the Hobbs driver does not ordinarily have
contact with the employees in Albuquerque, which is over 300 miles
from Hobbs; he is paid on a different basis than the Albuquerque
over-the-road drivers; and he is "pretty much" his own boss at Hobbs.
153 NLRB No. 47.