Fleetwood Trailer Co. of Idaho, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1964

146 N.L.R.B. 604 (N.L.R.B. 1964)

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT compose language for a petition for employees to get back
dues paid to District 50.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights to self-organization, to form labor or-
ganizations, to join District 50, United Mine Workers of America, Ind., or any
Other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
bargaining,-or other mutual aid or protection, or to refrain from any and all
such activities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization asa condition of employ-
ment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL offer to Joline Ecker, Robert Burnell, Clarence Nieman, and Jerome
Wiezycki, immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other rights and
privileges previously enjoyed, in accordance with the Recommended Order of
the Trial Examiner's Decision.
WE WILL make whole Joline Ecker, Robert Burnell, Clarence Nieman, and
Jerome Wiezycki for any loss of pay suffered by them by reason of the dis-
crimination practiced against them, in accordance with the Recommended Order
of the Trial Examiner's Decision.
All our employees are free to become or refrain from becoming members of Dis-
trict 50, United Mine Workers of America, Ind.,
SAGINAW FURNITURE SHOPS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify any of the above-named employees, Joline Ecker, Robert
Burnell , Clarence Nieman, and Jerome Wiezycki, if any of them are presently serv-
ing in the Armed Forces of the United States, of their right to full reinstatement
upon application 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 cons@cutive 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, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 226-3230,
if they have any questions concerning this notice or if they have information that its
provisions are being violated.
Fleetwood Trailer Company of Idaho, Inc. and United Steel-
workers of America, AFL-CIO. Case'No. 19-C9-17929. April 2,
1964
SUPPLEMENTAL DECISION AND ORDER,1
On December 20, 1963, Trial Examiner William E . Spencer issued
his attached Decision , on remand , in the above-entitled proceeding.
The Trial Examiner found that it would not effectuate the policies of
the Act to order reinstatement of employee Linvel D. Moffis , or back-
pay for the period on and after March 27, 1959? Thereafter, the
1 The Board 's original Decision and Order is reported at 126 NLRB 631.
2 In accordance with the apparent intent of the Court 's decision remanding the case to
the Board . Respondent was served with a notice of hearing and backpay specification to
which it duly filed answer.
146 NLRB No. 76.
FLEETWOOD TRAILER COMPANY OF IDAHO, INC . 605
General Counsel and Respondent filed exceptions to the Decision and
supporting briefs.
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 [Chairman McCulloch and Members Leedom and
Fanning].
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 Decision
and the entire record in the case, including the exceptions and briefs;
and hereby adopts the findings of the Trial Examiner.'
ORDER
I
On the basis of the foregoing Trial Examiner's Decision and the
entire record in this case, the National Labor Relations Board hereby
orders that the Order previously issued in. this proceeding on Febru-
ary 15, 1960, be, and it hereby is, -amended by striking paragraph 2
in its entirety, and substituting therefor, the following : ,
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act : - i
(a) Make whole Linvel D. Moffis by payment to him of the sum
of $134.60. •- - - -
(b) Post at its plant at Nampa, Idaho, copies of the attached notice
marked "Appendix A." 4 Copies of said notice, to be furnished by
the Regional Director for the Nineteenth Region, shall, after, being
duly signed by Respondent's representative, be posted by Respondent
immediately,upon receipt thereof, and be maintained for 60 consecu-
tive days thereafter, in conspicuous places, including all places where
notices- to its employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify; the Regional Director for the Nineteenth Region, in
writing, within 10 days from the, date of this Order, what steps Re-
spondent has taken to comply herewith.
3In its answer, Respondent admits liability for backpay according to the specification
for the period from January 29 through March 24, 1959. It denies backpay liability there-
after on the ground that, by his misconduct - on and after March 25, 1959, Moths forfeited
further backpay . As the Trial Examiner found, Moffis forfeited his right to reinstatement
and further backpay by his participation in acts of vandalism on March 27, 1959. The
record reflects that those acts . of vandalism occurred on the night of Friday, March 27,
1959. Accordingly, we have deducted the amount of $22.40 representing 16 hours, at
$1.40 per hour , for Monday and Tuesday, March 30 and 31 , 1959, from the $157 reflected
in the General Counsel 's backpay specification for the quarter ending March 31, 1959.
Thus, the total net backpay due Moffis through March 27, 1959 . Is $134.60.
* In the event this Order is enforced by ' a decree of a United States Court of Appeals,
there shall - be substituted for the words "A Decision and Order" the words ."A Decree of
the United States Court of Appeals, Enforcing an Order." -
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATION
The Board respectfully recommends to the United States Court of
Appeals for the Ninth Circuit that the said Order, as thus amended,
be enforced.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist United Steelworkers
of America, AFL-CIO, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain
from any and,all of such activities, except to the extent that such
right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as au-
thorized in Section 8(a) (3) of the National Labor Relations Act,
as amended.
WE WILL make whole Linvel D. Moffis for,any loss of pay suf-
fered by him through March 27, 1959, as a result of our discrimi-
nation against him.
All our employees are free to become or remain members of the
above named Union, or any other labor organization, except to the ex-
tent that this right may be affected by an agreement in conformity
with Section 8(a) (3) of the amended Act. We will not discriminate
in regard to hire or tenure of employment or any term or condition of
employment against any employee because of membership in or ac-
tivity on behalf of any such labor organization.
FLEETWOOD TRAILER COMPANY OF IDAHO, 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 material.
Employees may communicate with the Board's Regional Office,
Room 327, Logan Building, 500 Union Street, Seattle, Washington,
Telephone No. Mutual 2-3300, Extension 553, if they have any ques-
tion concerning this notice or compliance with its provisions.
FLEETWOOD TRAILER COMPANY OF IDAHO, INC. 607
TRIAL EXAMINER 'S DECISION
(ON Rn m)
In Fleetwood Trailer Company of Idaho, Inc., 126 NLRB 631, the Board found
that the Respondent discharged its employee , Linvel Moffis , on January 28, 1959,
for reasons constituting a violation of Section 8(a)(1) and ( 3) of the Act. This
finding was affirmed by the Ninth Circuit Court of Appeals , 289 F . 2d 927. Sub-
sequently, the Respondent filed with the court a motion , supported by affidavits,
for a remand to the Board for the purpose of determining whether Moffis had dis-
qualified himself for reinstatement and backpay on and after March 28 , 1959, by
misconduct during a strike which occurred at Respondent 's plant beginning on or
about that date . The Board did not oppose Respondent 's motion and the court
ordered the remand petitioned for. On May 9 , 1963 , the Board issued a notice to
show cause why the Board should not take judicial notice of affidavits filed by the
Respondent with the court in support of its remand petition , and acting thereon
modify its order in the subject case by eliminating the reinstatement and backpay
requirements. The General Counsel and the Charging Union in response to the
show cause order, raised questions of credibility and Board precedent of such scope
and character that on June 26 , 1963 , the Board remanded the matter to its Regional
Director for a further hearing before a Trial Examiner on the issues raised by
Respondent 's remand motion and the response thereto of the Charging Union and
the General Counsel . This hearing , under notice of hearing and backpay specifica-
tion issued by the General Counsel on August 26 , 1963 , and Respondent's duly
filed answer thereto , was conducted by Trial Examiner William E . Spencer at
Caldwell , Idaho , on September 25 and 26 , 1963 , with all parties participating.
Thereafter, the General Counsel and the Respondent respectively filed briefs.
Upon consideration of these briefs, the demeanor of the witnesses appearing before
me, and the entire record in the case , I make the findings and conclusions below.
The General Counsel admits, and it is firmly established in the evidence , that on
March 27 , 1959 , 2 days after Respondent 's plant was struck . Moffis, accompanied by
several strikers from the Union 's picket line, participated in the slashing of auto-
mobile tires of several nonstrikers and Respondent 's plant manager , Daniel Mattson;
put sugar in the gasoline tanks of their cars ; and smashed the windshield of one
nonstriker . All of this occurred away from the picket line , as alleged by the General
Counsel, but patently and admittedly was motivated by desire and intent to dis-
courage and impede nonstrikers in going to work . With its direct link with strike
activity firmly established, and admitted , I think the geographical distinction that this
activity did not occur at or in the immediate vicinity of the picket line is a distinction
without substance . I think the fact that Moffis did not himself slash any tires, put
any sugar in the gasoline tanks, or smash any windshields , is also a matter of small
substance in evaluating the gravity of his offense . He was in the company of the
strikers who prepetrated these acts at the time they were perpetrated ; he drove them
to the scene of action in his own car ; his knife was used in slashing of some tires;
and he was at all times fully cognizant of what was being done and why. Clearly, he
shares equally the culpability of the employees who actually perpetrated these acts.
The General Counsel argues , as a mitigating circumstance , that all losses suffered
from these acts of vandalism were made good by the Union , or others , and that, in
any event, the losses sustained were not large . Assuming, arguendo, that this is
established in the evidence , it would not account for all the delay nand inconvenience
caused the persons whose property was damaged , and would ignore the potential
cost of such vandalism . The effect , and the intended effect, of placing sugar in the
gasoline tanks was to freeze the motors so that they could not be started . Depend-
ing on the amount of gasoline in the tank and the amount of sugar added , the result-
ant damage to the motor might amount to no more than a few dollars or might
require replacement of the entire motor . It was fortuitous , I think, that the damage
here was not great , and has little or no bearing on the gravity of the offense, both
in its intent and perpetration.
There have been numerous cases on the issue of conduct disqualifying an employee
who has been unlawfully discharged , for reinstatement and backpay . Mass picket-
ing, unprovoked assault at or near the picket line, and threats of violence , are some
of the commoner forms of conduct found of sufficient gravity to bar reinstatement.
A minor display of "animal exuberance " as manifested in a little shoving and push-
ing, uncomplimentary but not vile epithets , and the like , usually described as "nor-
mal" incidents of picket line activity , are usually not considered disqualifying factors.
Obviously, the factual situation will differ as frequently as cases arise , and reason-
able minds will differ as to the emphasis to be applied to incidents under scrutiny.
744-670-65-vol. 146-40
608 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
After an extensive review of cases in which the issue has arisen , I am convinced
that Moffis' participation in the slashing of automobile tires and sugaring of motors,
perpetrated against nonstrikers with the intent of preventing their entry to the plant
on their normal schedules, is not reasonably distinguished from action in forcibly
barring nonstrikers from entry into a plant, and is at least equal in gravity to smash-
ing a window of a house occupied by a nonstriker. Morris Fishman & Sons, Inc.,
122 NLRB 1436, 1438 , affd. 278 F . 2d 792, 796 (C.A. 3); Old Town Shoe Company,
91 NLRB 240, 244; and oases cited therein.
As to the General Counsel 's contention of provocation,' all strikers no doubt feel
provoked by management opposition and Moffis himself had been discriminatorily
discharged . Obviously , the provocation must be more directly related to picket
line activity than this ; and I would think that normally there 'must be some con-
tinuity established between provocation and resulting act to justify the' latter. The
provocation relied on by the General Counsel is Plant Manager Mattson 's brandish-
ing of firearms . It appears that firearms were Mattson 's hobby, and that he paraded
his hobby by displaying them while on duty in the plant , and on one occasion pointed
a revolver at an employee with the admonition that he should get to work. It fur-
ther appears that Mattson was hired about the time organizational activities began
and it may well be that his display of firearms was for purposes of intimidation.
Assuming , arguendo , that this is so, and with full understanding that with or with-
out intended intimidation this would not endear him with employees generally, and
Moffis , whom he discharged , in particular, there is no substantial evidence of his use
of firearms at or in the vicinity of the picket line or outside ,the plant such as-could
reasonably be related directly to Moffis' participating in the slashing of tires and
sugaring of motors of employees other than Mattson , or Mattson himself, in such
manner as to provide provocation for the vandalism as the term "provocation" has
been used, in any decision of the Board or the courts that I have read.'
The only factor that has given me pause in finding Moffis disbarred from rein-
statement, and backpay beyond the date when the vandalism occurred, is the
rationale which appears to underlie Board policy applicable to the situation. In
Horn Manufacturing Company, 83 NLRB 1177, the Board stated that for a
There were additional matters alleged as constituting cause for denying Moffis re
instatement and,backpay . I have considered all, of these matters carefully and make these
findings. I do not believe that Moffis spat on or verbally abused any supervisor, officer
of management , or other person during the course of the picketing. I credit his denials
of such conduct . There was an incident when an employee , Cornell ,- in cooperation with
management , permitted himself to be lifted bodily for the purpose of scaling a' barbed
wire fence in order to enter the plant , the locks on the doors to the plant having been
found jammed with wood. There is no evidence linking Moffis with the jamming of the
locks. Moffis and one or two other strikers approached Cornell, suggested that they lend
him an "assist" in scaling the fence , and may have laid hands - on him in a nonviolent
manner for this purpose. At Cornell's protest and request to be let down he was promptly
released. I do not believe that this incident was as sinister as the Respondent would have
us believe ; it was more harmless horseplay than anything else. There was no intent to
inflict bodily injury and none was suffered . I also discredit testimony of Respondent's
witnesses that Moffis on this occasion seized Weide , an officer of management , physically
restrained him, defied , the police , or spat on anybody . Further, upon the entire testimony
I am convinced and find that Moffis did not physically bar or attempt to bar anybody
from entering the plant , except to the extent that 'be was involved in an incident when
the strikers placed a log. the approximate size of a telephone post, some 5 feet in front
of the entrance to the personnel office where employees normally entered , and left . Previ-
ously, before the strike , a smaller log was placed in approximately this , same position.
Strikers utilized it by sitting on it. Management had this smaller log dragged inside the
plant. Thereupon the strikers brought a longer log from its place on Respondent's
property line. and placed it in front of the plant and some 5 feet distance from the en-
trance . They then sat on this log as they previously had sat on the shorter one.' Obvi-
ously, both logs may be said to have impeded entrance to the plant ; it is equally clear
that neither barred entrance or exit. To remove a finished mobile unit from the property,
however , it would have been necessary to remove the log. Moffis participated in the
activities involved in the placing of the , log. Only to the extent that it obstructed ve-
hicular exit from the plant , can it be said that the placing of the log, barred enry to the
plant to a degree ' that those involved in this activity forfeited a.right to reinstatement
and backpay , and inasmuch as there is no evidence that the, strikers at any time resisted
any effort by the Respondent to remove this obstruction for the purpose of moving finished
products from the plant, I think there is no basis here for denying Moths reinstatement
.and backpay.
GRAINGER BROTHERS CO . 609
•discriminatee to forfeit his right to reinstatement the misconduct engaged in must be
"so extreme as to render him unfit for further service ." The court in N.L.R.B. v.
Kelco Corporation, 178 F. 2d 578 (C.A. 4), stated, inter alia, "It is not the fact
that employees have been convicted of crime that renders them ineligible for rein-
statement but the fact that they have been guilty of unlawful conduct which would
make their presence undesirable because of the disruptive effect which it would have
upon the employer 's business." Using the rationale of these two decisions as a
guideline , I would doubt that Moffis' conduct was "so extreme as to render him unfit
for further service," or that his reinstatement would have a "disruptive effect . .
upon the employer 's business ." Years have passed since Moffis engaged in the
conduct complained of; whether he has changed in those years I do not know;
I only know that as a witness he impressed me as quiet, frank, cooperative, and
earnest . His participation in the vandalism of March 27, 1959, while not to be
condoned , does not in my view condemn him as one permanently afflicted with a
tendency toward reckless and irresponsible acts, and with former Plant Manager
Mattson, now serving the State in a quasi-official capacity, I doubt that his reinstate-
ment would give rise to any serious personnel problems . As the Board has applied
its policy in actual cases, however , the weight of these decisions constrains me to
find, as I do, that it would not effectuate the policies of the Act to order Moffis'
reinstatement , or backpay on and after March 27, 1959.2 It may be that under the
rather unusual circumstances of this case the Board may consider that the denial
of backpay alone is sufficient to accord with a proper effectuation of the Act.
8 To meet the contingency of being reversed by the Board on the issue of reinstatement
.and backpay, I make these findings on the General Counsel 's backpay specifications. There
was no willful neglect by Moffis in seeking, or retaining , gainful employment. On the
.entire evidence I am convinced that he made all reasonable efforts in these respects. It is
true that he might have been gainfully employed during the period of his farming venture,
a venture that failed , but I am convinced that this venture was undertaken in good faith
and provides no reasonable basis for denying him backpay during the period of its duration.
In short, in my opinion based upon the entire evidence , the Respondent has not success-
fully attacked the General Counsel 's backpay specifications , as amended at the remand
'hearing.
Grainger Brothers Co. and Teamsters, Chauffeurs, Warehouse-
men and Helpers Union Local No . 608, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America , Petitioner. Case No. 17-RC-4302.
April 2, 1964
DECISION ON REVIEW AND ORDER
On November 26, 1963, the Regional Director for the Seventeenth
Region issued a Decision and Direction of Election in the above-
entitled proceeding . Thereafter, the Employer and the Intervenors,
Retail, Wholesale and Department Store Union, AFL-CIO, and its
affiliate, Warehousemen and Drivers' Local Union No. 1771, Retail
Wholesale and Department Store Union, AFL-CIO, in accordance
with Section 102.67 of the Board's Rules and Regulations, filed with
the Board timely requests for review of such Decision and Direction
of Election on the ground, inter alia, that the Regional Director er-
roneously found that the contract executed between Grainger Bro-
thers Co., hereinafter called Grainger, and the Intervenors herein
was not a bar to the petition. The Petitioner, on December 16, 1963,
filed its opposition.
146 NLRB No. 75.