Fleetwood Trailer Co. of Ohio, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1962

138 N.L.R.B. 304 (N.L.R.B. 1962)

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fleetwood Trailer Co. of Ohio, Inc. and International Union of
'Electrical , Radio and Machine Workers, AFL-CIO, Charging
Party
Fleetwood Trailer Co. of Ohio , Inc. and International Union of
Electrical , Radio and Machine Workers, AFL-CIO, Petitioner.
Cases Nos. 8-CA-2587 and 8-RC-4282. August 27, 1962
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
On April 26, 1962, Trial Examiner John H. Eadie issued his Inter-
mediate Report 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 Inter-
mediate Report. The Trial Examiner also found that the Respond-
ent had not engaged in certain other unfair labor practices and rec-
ommended that the complaint be dismissed with respect thereto. Fur-
ther, the Trial Examiner made recommendations as to the objections to
conduct affecting the results of the election and challenges arising
from the representation case. Thereafter, the General Counsel,' the
Charging Party, and the Respondent filed exceptions to the Inter-
mediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the fuzdings,2 conclusions, and recom-
mendations 3 of the Trial Examiner.
'The General Counsel excepted solely to the Trial Examiner ' s failure to recommend a
"broad" order. We do not agree with the General Counsel that the Respondent 's viola-
tions of Section 8(a) (1) of the Act warrant our issuing such an order . However, the
Trial Examiner failed to include a provision in the Remedy and Recommended Order
prohibiting the Respondent from engaging in, any similar acts of interference , restraint,
and coercion Accordingly, we have included such a provision in our Order.
2 The Trial Examiner found that Leroy Surgener, one of Respondent ' s employees, was
not unlawfully discharged Like the Trial Examiner, we believe that the facts of this
case do not "warrant an inference of discriminatory motivation " However, we do not
pass upon, or adopt , the Trial Examiner ' s further statement that, in view of Surgener's
poor work record as a leadman, the General Counsel, in order to prove his case, had to
establish that "Respondent deliberately was making it impossible for Surgener to perform
his duties as a leadman "
3 As no exceptions were taken to the Trial Examiner' s recommendation to overrule the
Petitioner' s objection to the election, we adopt his recommendation , pro forma.
In agreement with the Trial Eeanunei, we sustain the challenges to the ballots of
Thayer. Wolcott, Atoyei, Ronald Howard, 'Needs, and Surgener We do not paw Upon the
Trial Examiner' s findings or conclusions with respect to the ballots of Finney and Dudley
Howard, as their ballots cannot affect the results of the election
138 NLRB No. 39.
FLEETWOOD TRAILER CO. OF OHIO, INC. 305
As the Petitioner did not receive a majority of the votes cast in the
representation election, we shall certify the . results ,of the election.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Fleetwood Trailer
Co. of Ohio, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating employees concerning their union membership
and activities, threatening them with reprisals because of such activi-
ties, and requesting employees to spy upon the union activities of
other employees.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-organiza-
tion, to form, join, or assist International Union of Electrical, Radio
and Machine Workers, AFL-CIO, or any other 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
and all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Galion, Ohio, copies of the notice attached
hereto marked "Appendix." 4 Copies of said notice, to be furnished
by the Regional Director for the Eighth Region, shall, after being
duly signed by an authorized representative of the Respondent, be
posted 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 by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Eighth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT Is FURTHER ORDERED that the Petitioner's objections be overruled,
and that the challenges to the ballots of Richard Thayer, Frank Wol-
cott, Robert Moyer, Ronald Howard, James Needs, and Leroy
Surgener be sustained.
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the cords "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT Is FURrIIER ORDERED that the complaint be, and hereby is, dis-
missed insofar as it relates to the discharge of Leroy Surgener.
[The Board certified that a majority of the valid votes was not cast
for International Union of Electrical, Radio and Machine Workers,
AFL-CIO, and that said labor organization is not the exclusive rep-
resentative of the employees in the unit found appropriate.]
APPENDIX
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 you that :
WE WILL NOT interrogate our employees concerning their union
membership or activities, threaten them with reprisals because
of such activity, nor request employees to spy upon the union ac-
tivities of other employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights to
self-organization, to form, join, or assist International Union of
Electrical, Radio and Machine Workers, AFL-CIO, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities, except to
the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a) (3) of the Act, as
amended.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of International Union of Electrical,
Radio and Machine Workers, AFL-CIO, or of any other labor or-
ganization, except to the extent that this right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a) (3) of the Act, as
amended.
FLEETWOOD TRAILER CO. OF OHIO9 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 directly with the Board's Regional
FLEETWOOD TRAILER CO. OF OHIO, INC. 307
Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio,
Telephone Number, Main 1-4465, if they have any question concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on October 13, 1961, by International Union of Electrical,
Radio and Machine Workers, AFL-CIO, herein called the Union, the General Coun-
sel of the National Labor Relations Board issued a complaint, dated November 17,
1961, against Fleetwood Trailer Co. of Ohio, Inc., herein called the Respondent, al-
leging that the Respondent had engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the
National Labor Relations Act, as amended, herein called the Act. The Respondent
filed an answer on or about November 27, 1961, in which it admitted the jurisdic-
tional allegations of the complaint but denied the commission of any unfair labor
practices.
In Case No. 8-RC-4282 the Board by order dated December 12, 1961, directed
a hearing before a Trial Examiner "to resolve the issues raised by the objections and
by the challenges to the ballots of Charles Finney, Dudley Howard, James Needs,
Richard Thayer, Frank Wolcott, Robert Moyer and Ronald Howard." On Decem-
ber 18, 1961, the Regional Director for the Eighth Region issued an order consolidat-
ing the complaint and representation cases.
A hearing was held before Trial Examiner John H. Eadie at Galion, Ohio, on
February 6, 7, and 8, 1962. After the conclusion of the hearing, the General Coun-
sel, the Union, and the Respondent filed briefs with the Trial Examiner. The Gen-
eral Counsel also filed a motion to correct the record. The Respondent filed a
memorandum in opposition to the motion. In view of the Respondent's opposition,
the motion is denied. The General Counsel's motion and the Respondent's memo-
randum in opposition are received in evidence as Trial Examiner's Exhibits Nos.
3 and 4, respectively.
Both from the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation. It has an office and plant in Galion, Ohio,
where it is engaged in the manufacture and sale of mobile homes. In the course and
conduct of its business operations at said plant, the Respondent annually causes its
products valued in excess of $50,000 to be sold, delivered, and transported in inter-
state commerce to and through States of the United States other than the State of
Ohio.
The complaint alleges, the Respondent's answer admits, and the Trial Examiner
finds that the Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio and Machine Workers, AFL-CIO, is a
labor organization which admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent commenced manufacturing operations in its Galion plant in
June 1960. Production increased until by the week ending October 23, 1960, the
Respondent had 46 employees, and produced at the rate of 11 units per week.
About this time, due to a cancellation of orders and to increased inventory, produc-
tion was cut to an average of about four or five trailers per week. Correspondingly,
employees were laid off until a low of 24 was reached for the week ending Novem-
ber 27, 1960. Approximately 11 of the laid-off employees were rehired when the
Respondent once again increased production starting about February 1961.
The Union commenced to organize the Respondent's employees during the last part
of April 1961. On May 11, 1961, the Union petitioned the Board for certification.
662353-63-vol. 138-21
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 31, 1961, the Respondent discharged Leroy Surgener, who had been elected
"president" of the Union by the employees.
During May 1961, the Respondent reached its peak of production and employ-
ment. During the week ending May 28 there were 63 employees and 15 units were
produced. Employment and production remained constant through the week end-
ing July 30. During August approximately 29 employees were laid off. One of
these employees was rehired during September and two were rehired during October
1961. Starting with the week ending August 27, only seven units per week were
produced. The number of employees dropped to 28 for the week ending October 29,
1961.
Pursuant to the Board's Decision and Direction of Election, dated September 20,
1961, an election was conducted on October 4, 1961. The unit found appropriate
by the Board included utility men and leadmen. Of the 36 ballots cast, 13 were
for the Union and 15 were against. The Respondent challenged the ballots of eight
employees, including that of Surgener, upon the grounds that they had been either
permanently laid off or discharged before the election.
During the times mentioned herein, Nick Dobrich and Vincent Wanzek were the
plant manager and produciton manager, respectively. There were no other super-
visory employees between them and the leadmen.
B. Interference, restraint, and coercion
About the end of April 1961, Wanzek told employee Leroy Surgener, "Surgener,
if you hear any Union talk going around, let me know. . . . It is part of your job as
leadman to let me know if there is any Union talk." Wanzek's request that Surgener
become an informer on union activity is found to be violative of the Act.
The record establishes that both Dobrich and Wanzek spoke to the assembled em-
ployees. Dobrich's speech took place on or about May 3, and Wanzek's on or about
June 1, 1961.1 Surgener testified that Dobrich said, "I heard that you guys were
trying to get a Union in. . . . You guys can try as hard as you want to, to get a
Union in here, it won't do you no good. . . I can fire every one of you guys and
hire new men. . There are men out on the street just like you guys, wanting to
work. They are in here every day." Surgener also testified that either Dobrich or
Wanzek said that "before a Union would come in there they would close the plant
down." As to Wanzek's talk, Surgener was questioned and testified as follows:
Q. Do you recall in either June or July a meeting called by Mr. Wanzek?
A. Mr. Wanzek, yes.
Q. Do you recall what was said at that meeting?
A. He said, "I don't want to see any more than three guys in a group." He
said, "No man is to leave his department for anything except the lead man,"-
he was pretty well teed off there-I think it was him that said before a Union
would come in they would close the plant down, I am not too sure, but one of
them guys said that.
Q. By "One of the guys" who do you mean?
A. Mr. Dobrich or Vince Wanzek.
Concerning Dobrich's speech, employee James Needs testified:
Well, we were going to hold a meeting that night to get a group of the Union
members together and we were all supposed to sign a bunch of cards. Nick
Dobrich, he told Vince Wanzek to call all the production workers together
about a half hour before quitting time, and Nick got up and said he didn't want
anybody to sign any cards, and he didn't want the Union in there, that he
thought the wages they were paying were fair enough, that they were paying a
nickel every 30 days, and he said if we did get a Union in and went ahead with
it that they would close down the shop and move it elsewhere and we would all
be out of a job.
As to the first meeting at which the Union was mentioned, employee Dudley Ho-
ward was questioned and testified as follows:
Q. Do you recall what was said at that time?
A. At this particular meeting I don't recall which one said it, but they said
they knew who was doing the talking, if they ever caught them, they would get
rid of them.
Q. They knew who was doing the talking?
1 From Wanzek's testimony it appears that his "get tough policy" speech was about
June 1, and that before that time he gave other talks to groups of employees " sometimes
once a week and sometimes every other week."
FLEETWOOD TRAILER CO. OF OHIO, INC. 309
A. Yes, sir. They said they could be replaced awful easily, and they said,
should the Union come in we could close the plant.
Howard testified that "sometime in June" on the day that the employees had a
meeting "on the parking lot outside the plant at noon" and had received union badges,
"the manager called a meeting of the whole plant." 2 In this connection Howard
testified:
They said they didn't want to see any more I.U.E. badges passed out on com-
pany grounds, if they caught anyone they would get rid of them, and they said
there weren't any Union that was going to come in and tell us how to run our
business or what wages to pay to the employees, and if we didn't like it we could
get out.
* * * * * *
At this particular meeting, Mr. Wanzek, I recall him, and he stated that there
weren't any Union coming in there, there weren't any other Union ever coming
in there and that he would fire or replace every man in the factory if he had
to do it. He said there were many people coming in every day looking for work
and he said he didn't want to see any more than two or three employees at one
time in a group at any time. He also stated that he didn't want to see any
employee out of his particular department, with the exception of the lead man.
He said, "You guys is trying to see how tough you can be on us, so we will
show you how tough we can make it on you."
Employee Bob Stewart testified that "in June or July" on the day that the em-
ployees met on the parking lot, the Respondent called a meeting of all employees
"right after lunch hour"; and that both Dobrich and Wanzek spoke at this meeting.
As to this meeting, Stewart testified as follows:
Well, he said we were making it rough on them, so they would just see how
rough they could make it on us guys.
He said that no one was to leave their department without permission, and they
didn't want to see no two or three guys talking together.
There is one thing I don't have to read to remember. He said there would
not be a union in. He said they had had about three cases before the Board
and they had beat them all three, and that was just a waste of time.
* * * * * * *
They said they couldn't afford to have a union, that they wouldn't have a union.
They said they would tear the plant down and move it before they had a union.
Dobrich admitted that he made a speech to the assembled employees on May 3,
1961, with Wanzek present. Concerning his speech, Dobrich testified to the fol-
lowing:
It was a very brief meeting and we wanted to bring out certain points, the
points being that we wanted to let the men know what we had done for them
thus far in the way of wage increases, and insurance benefits and it was just a
real brief meeting, to state the company's position, inasmuch as we told them
that we realized that there was going to be a meeting that evening in regard to
organizing Fleetwood and we stated that we didn't want them to sign the cards.
* * * * * * *
We mentioned the employment record we had, and although we have been
in operation a very short time, we had retained at least 25 of the employees
there.
* * * * * * *
I referred to the competitive nature of the business, also the competitive nature
of the industry and to repeat, I mentioned the two wage increases that we had had
and also that we had returned about $4600 worth of insurance premiums
to the employees which was more than the total sum that had been paid in.
I told them that our wage policy had to remain consistent so that we could
be competitive, and I told them that I didn't want them to sign the cards, and
I ended up by saying that it wouldn't do any good.
* * * * * * *
9 Howard testified that he did not recall which manager spoke at this meeting, although
to one part of his testimony cited herein he identifies the speaker as Wanzek. However,
It is clear from the testimony that Howard had reference to the speech of Wanzek made
on or about June 1.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frankly, that it wouldn't do any good, and we were referring to the re-
organizing of the trailer industry, that the Unions couldn't change the competi-
tive nature of our business.
Dobrich denied that he threatened to move the plant or discharge employees because
of their union activity. Wanzek testified substantially the same as Dobrich with
respect to the latter's speech.
Concerning his own speech to the employees on or about June 1, Wanzek testified
as follows:
Primarily, the subject of this speech was for me to have, in effect, to get
the men, which ever way you want to put it, to realize that we are not performing
at our proper efficiency, and that we had to get going, so to speak.
Well, we were finding considerable things wrong. I was finding men in
different areas, when they didn't think I was around, visiting and wandering
out of their areas, which it would seem to me, that I had to use a good, tough
policy on them. I was talking to them in a normal manner and I had no
results.
* * * * * * *
Well, to be quite frank with you, I did say that I was quite irritated. I told
the men in so many words that if they didn't think I was tough, just to try me,
and if they thought I was tough now, all they had to do was try me. Any man
that didn't want to do his job, and get it done right, and get it done in 40 hours,
it would mean immediate dismissal. I didn't want any of the men grouping
together on company ,time. I didn't want any man out of his work area unless
he had specific business to be out of that area . And as far as I was concerned,
only on rare occasions, it was only the leadmen that would have reason, on
occasion, to be out of their area . It was only when they had a reason to be
out, not otherwise.
Wanzek testified that he did not mention the Union during his speech and that he
did not threaten to close the plant if the Union got in.
Employees Marion Osborne, Aulden Woodrow, Woodrow Thompson, Marvin
Rader, Raymond Howard, Edward Vining, and Marion Van Dorn were called as
witnesses by the Respondent. All except Thompson testified that Dobrich in his
speech did not threaten to close the plant or to discharge employees because of
their union activity,3 and all testified that Wanzek did not mention the Union during
his meetings with the employees. Osborne testified that Dobrich told the employees
"that if we wanted the Union in, we should go ahead and sign the cards, and if we
didn't want them in, we didn't need to sign the cards." Howard testified that Dobrich
said "that the trailer industry didn't have the turnover as other big industries, and
if it was forced, if they had to pay a wage that other big companies pay, that they
would have to go out of business."
From all of the evidence I am convinced and find that both Dobrich and Wanzek
threatened the employees with reprisals because of their union activity, in violation
of Section 8(a)( I) of the Act. In so finding I credit the testimony in this connection
of Needs, Surgener, Stewart, and Dudley Howard; and do not credit the denials and
contrary testimony of Dobrich, Wanzek, Osborne, Woodrow, Thompson, Rader,
Raymond Howard, Vining, and Van Dom.
Employee Terrell Noel had a conversation with Wanzek on or about May 11, 1961.
Wanzek asked him if he had "anything to do with the union." Noel replied that
he was on the Union's "organizational committee." Wanzek then said that "they
had tried to bring unions in here before"; and that he "had broke them" and "would
break ours." It is found that Wanzek's interrogation of Noel constitutes interference,
restraint, and coercion.
On the day that union badges were distributed to the employees, on or about
June 1, Wanzek had a conversation with employee Danny Wray. Wray was wearing
a badge at the time. Wanzek told him, "I see they won you over.... If I were you,
I would think this over, because you are a married man, and you have a family to
s In his pretrial affidavit, dated October 19. 1961, which was received in evidence,
Thompson states, "About the first of May the Company called a plant meeting at which
time Nick Dobrick [sic] spoke to the employees. I recall that he said there'd be no
union in the plant and at one point said if he had to, he'd shut the plant" At the hearing
on direct examination, Thompson testified that he did not "recall" any speech by Dobrich
at the time in question During cross-examination when confronted with the above
statement in his affidavit, Thompson testified, "I can't recall it. It has been so long."
FLEETWOOD TRAILER CO. OF OHIO, INC. 311
think of.... Because a man who sticks with the company now, will end up with
the company." It is clear that Wanzek's statement was a threat to discharge Wray
because of his union sympathy and activity. As such, it is violative of Section
8(a)(1) of the Act.
C. The discharge of Surgener
Leroy Surgener first was employed by the Respondent on July 7, 1960. He worked
in the paint department for about 2 months and then was transferred to "side walls."
During the latter part of October 1960, he was promoted to leadman in the sidewall
and tops department.
The campaign of the Union started in the Respondent 's plant during about the
latter part of April 1961. The employees chose Surgener as "temporary president."
The Union held meetings on the parking lot. Surgener spoke to the employees at
these meetings and solicited them to sign union cards . He wore a union badge in
the plant, and testified as a witness for the Union at the Board's representation hear-
ingheldon or about June 6, 1961.
Including Surgener, there were eight employees working in the sidewall and tops
department. As a leadman, he was required to perform manual work. It was his
responsibility not only to inspect the work of the employees in his own department,
but also to check the trailer for defects when it wasreceived from the floor depart-
ment . The trailers are manufactured on an assembly line. The trailer moves from
the floor department into the sidewall and tops department. The side walls are put
on the trailer and it is then moved about one full trailer length (45 to 55 feet),
where the interior cabinets are installed. The back, front, and the top are then
placed on the trailer.
Until about the middle of May 1961, Surgener himself worked in the sidewall
part of the department. Because the employees working "on the tops couldn't keep
up," employee "Scotty" was transferred from tops to sidewalls; and Surgener worked
on tops. "Squawks" (complaints) about the work in sidewalls then increased.
Surgener discussed this several times with Wanzek, telling him that he did not have
the time and was unable to check the work of the employees in sidewalls. Wanzek
told him that he would assign another employee to his crew so that he could "work
in each department and keep a watch on both places." Wanzek thereafter assigned
an extra employee to Surgener's crew. Later Surgener had to share this extra man,
as the employee worked only half of his time in the sidewall and tops department
and the other half of his time with the "saw man." However, it appears that there-
after if the squawks on sidewalls did not in fact increase, at least they did not lessen 4
On or about June 13, Surgener went to Wanzek and told him that he would
"check the men more . quit talking for the Union, and quit the Union.' 15
Wanzek replied to the effect that he knew that Surgener was capable of performing
the work.
Wanzek was on vacation during the first 2 weeks of July 1961. Dobrich supervised
production during Wanzek's absence. At sometime during this period of time,
Dobrich overheard Surgener talking to another employee in front of a trailer in
the tops part of the department about a union meeting to be held that night. Dobrich
called Surgener over to the side and told him that he could engage in union talk
as much as he wanted on his own time, but not company time. Dobrich then warned
him by saying, "Surgener next time I hear any more Union talk on the Company's
time, I am going to fire you. . . Now, get back over there on tops and start driving
those nails now." Later that same day Dobrich had another conversation with
Surgener. Dobrich asked him, "Surgener, what is the matter, don't you like your
job?" Surgener replied that he did. Dobrich then asked him if he would like to be
transferred to another department, or to be made a utility man. To both questions
Surgener replied, "No."
'The evidence discloses that the utility men fixed squawks, unless the squawks in any
one department became excessive. In that case the squawks were called to the attention
of the leadman involved by the utility man, and the leadman was required to fix at least
some of them . Surgener testified credibly and without contradiction that he spent "about
an hour a day, five or six hours a week" fixing such squawks on sidewalls after the
trailers had been moved from his department and completely away from its working area.
5 When questioned as to the reason for making this statement to Wanzek, Surgener
testified , "Well, he had been riding me all the time [after the union campaign started]
and I figured I thought I was doing my job right, but the way he was riding me and
everything I didn 't know for sure."
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While he was in charge of production, Dobrich twice complained to Surgener
about faulty work on side walls. On one occasion when employee Dick Thayer 6
had neglected to tighten some bolts which held the trailer to the frame, Dobrich
warned Surgener by saying, "Surgener, you are going to have to do something about
this."
About a week after Wanzek returned from his vacation, he noticed Surgener talk-
ing to an employee in the cabinet setting department. Several employees from
Surgener's crew were standing nearby. Wanzek said to him, "Surgener, the next
time I hear any more Union talk out of you, . I am going to fire you."
Surgener was discharged by Wanzek on July 31, 1961. Wanzek took Surgener
and his crew on sidewalls to the finishing department where he showed them a
trailer which had sidewalls with a number of defects. He told them, "If this is the
best you guys can do, . what I should do is fire the lot of you . . . the rest of you
guys can go back to work, but Surgener, come with me, you are fired."
For the most part, the facts in Surgener's case are undisputed. The Respondent
knew that he was the leader of the Union. There were a number of squawks on
sidewalls during the last 2 or 3 months of Surgener's employment; and both Wanzek
and Dobrich complained about the faulty work to Surgener. Wanzek testified at
length concerning the squawks? I have not detailed this testimony since it has not
been denied by Surgener.
The record establishes that it was the duty of leadmen to inspect the work of the
employees under them. Surgener testified to the effect either that he did not have the
time or that it was physically impossible to check the work of his sidewall crew.
Wanzek and Dobrich testified that Surgener was a good worker as an individual,
but not as a leadman; and that it was company policy to discharge an unsatisfactory
leadman rather than to demote him. Wanzek testified, in substance, that Surgener
had sufficient men on his crew and had ample time to check their work if he had
paid more attention to his job.
Since the record shows an antiunion animus on the part of the Respondent and
that Surgener was the leading adherent of the Union, the Respondent's action in the
matter is not above suspicion. However, I do not believe that the facts warrant
an inference of discriminatory motivation. Aside from the question of whether
or not Surgener's union activity was interfering with his work,8 the record is not
sufficient, in my opinion, for a finding that the Respondent deliberately was making
it impossible for Surgener to perform his duties as a leadman . In view of the
admitted defects on sidewalls, some of which appear to have been of a serious
nature, I believe that it was necessary for the General Counsel to have established this
in order to prove his case. Further, that the Respondent was not discriminatorily
motivated is indicated by Dobrich's offer to Surgener in the early part of July to trans-
fer him to another department or to make him a utility man.9
Accordingly, I find that the Respondent's discharge of Surgener on July 31, 1961,
was not in violation of the Act.
D. The objections and the challenged ballots
As stated above, the election was held on October 4, 1961. Before the start of
the shift that day, about 115 or 20 employees were standing around the coffee machine.
They were discussing a pamphlet on seniority which the Union had distributed the
night before. Concerning the conversation, employee Marvin Rader testified credibly
as follows:
we had brought it up that morning, speaking in regards to who would be
laid off in the case of the Union coming in. We were talking along the lines
of who had less time than some of the men who were laid off.
Surgener testified that before the above time he had recommended to Wanzek the
discharge of several employees, one of whom was Thayer.
4 Employee Raymond Howard was the leadman in cabinet setting. As a witness called
by the General Counsel, he testified that Surgener "got a little careless. You see, if I
would tell him to fix something , and it is not fixed , I don't tell him no more. I would
put it down where it says, 'Remarks.' It goes out like that. He was careless a lot of
times, he didn 't fix squawks . I don't say there was a greater number or lesser number,
but I do say that sometimes he wouldn 't fix squawks ." Wanzek testified that Howard
complained to him about squawks on sidewalls.
9 An affirmative answer to the above is indicated by Surgener 's admitted conversation
with Wanzek on about June 13.
a Leadmen and utility men received the same rate of pay.
FLEETWOOD TRAILER CO. OF OHIO, IN C. 313
There were quite a few boys standing around there. There was mention made,
comment made, towards several different boys. One was Larry Kelley, I believe,
was there, and there was mention made about I would have to look for a new job.
I mentioned to him then, that it would be all right, I could go up and bump his
buddy, Tom, who had less, four days or five days, than I do, just a general
conversation.
Wanzek was with the group of employees. As he was about to leave, employee
Tom Cole said, "Well, goodbye, Vince. It's been nice knowing you." Wanzek then
pointed to employees and said, "Well, if the union gets in, the other guys [employees
who had been laid off] will be coming back, and you, and you, and you guys will be
going out the door."
It is clear from the record and I find that Wanzek was referring to the possibility
that the employees might be replaced in their jobs by the employees who had been
laid off and who had more seniority, and that he was not threatening the employees
involved with reprisals. Accordingly, I find that Wanzek's statement was not violative
of the Act.
At the election on October 4, the ballots of Surgener, Charles Finney, Dudley
Howard, James Needs, Richard Thayer, Frank Wolcott, Robert Moyer and Ronald
Howard were challenged by the Respondent. The facts concerning Surgener's dis-
charge have been found above. The Respondent contends that the employment of
the other seven employees had been permanently terminated, and that at the time of
the election there was no reasonable expectancy of reemploying them. The Union
contends that these employees were temporarily laid off and at the time of the election
had a reasonable expectancy of reemployment in the near future.
Richard Thayer, Dudley Howard, Robert Moyer, and Frank Wolcott were laid
off on August 4, 1961. Ronald Howard and Charles Finney were laid off on
August 18, 1961. Ronald Howard was rehired by the Respondent on September 26,
1961, after the payroll eligibility date established for the election.'°
Concerning a conversation with Wanzek at the time of his termination, Finney
testified credibly that Wanzek told him "this was it. . . I am going to have to lay a
bunch [of the employees] off"; and that when he asked Wanzek if he "could get back
again," Wanzek told him to come back to see him. When questioned as to why he
had not returned to the plant to see Wanzek, Finney testified, "Well, things were
slack and I didn't think there was any use in coming back that soon."
Dudley Howard was leadman in the "Expando" department. Concerning his
layoff by Wanzek, Howard testified credibly, "He said he hated to let me go but at
that time they were going to shut the Expando department down, they were not going
to make any more. He said he hated to let me go but he didn't have any choice,
for me to drop back in and see him. . . . I asked him how often, and he said once a
week would be satisfactory." 11 Moyer testified that when his employment was ter-
minated by Wanzek, Dudley Howard was present. Moyer testified credibly that
Wanzek said, "We are going to quit making expandos. That's why we are letting
you go."
Richard Thayer testified credibly that when his employment was terminated by
Wanzek, he was told that his job was being eliminated and that he had "better find
another job."
James Needs was hired by the Respondent in March 1961. Sometime before
June 16, 1961, Needs was injured on the job. On June 16, Needs was notified by
the State Workmen's Compensation Board that the Respondent had terminated his
employment. On August 8 Needs returned to the plant and spoke to Wanzek. He
told Wanzek that his doctor had released him for "light duty" and asked him for a
job. Wanzek told him that the Respondent did not have need of his services any
longer, that there was no "light duty work," that he had been replaced since his
"illness was going to be for too long," and that the Respondent was cutting down
on production.
The economic necessity for the layoffs during August 1961 is not in dispute. The
evidence shows that during this month the Respondent laid off 29 employees. Of
this number, three, including Ronald Howard, were recalled to work.12 The facts
concerning the number of employees and the number of units produced (not in-
cluding expandos) through the week ending October 29, 1961, have been discussed
10 In his report on the challenged ballots, the Acting Regional Director states that the
eligibility date was the payroll period ending September 17, 1961.
11 Howard testified that he returned to the plant to see Wanzek "once a week until the
Board election."
12 Employees Nelson King and Edward Miller were recalled October 23 and 25,
respectively.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and found above. At that time only seven units were produced per week. This rate
of production continued through the week ending January 28, 1962. Until the week
ending July 30, 1961 , there were four employees in the expando department, and
two to four expandos were produced per week . From September 3 to December 31,
1961 , there was only one employee in the expando department , and production
ranged from none to two units per week.
Dobrich testified , in substance , that the Respondent did not maintain a recall or
rehire list of employees ; that "it is Company policy we never lay off a man. He is
always terminated"; and that when employees were selected for layoff , "Company
policy calls for strictly the merit system ... determined by the production manager."
Wanzek admitted that when the Respondent increased production during the early
part of 1961 , he instructed the Bureau of Unemployment Compensation to the effect
that only former employees of the Respondent whom he thought were "capable"
should be sent to him for reemployment . Concerning the length of time required
to train a production worker, Wanzek testified as follows:
First of all, as far as the man is concerned , it takes him two , possibly three,
days to get himself accustomed to it , and start showing something for us. First
of all, let me say this:
All of it, not all of it, a major part of this trailer is made with the process of
using the jigs. All of this material that is used, which is put into these jigs to
be assembled , is all figured and pre-cut . The figures are all figured out before-
hand, which list of these items are put on a board, and which the saw man uses
this here list to make these cuts , and from this cutting list he cuts the different
material needed for whatever place it is needed . And from this here, the men,
through markings on the jig, and through repeating the process several times
over, learn how to do their job.
It is just like a fellow going down the road, or I should say, a fellow learning
to drive a car. At first , you are sort of upset, you know, until after you drive
it a few times, it becomes routine, and that is just what this is. I would say that
if a man is normally of any value at all, it takes him, oh , two to three weeks to
learn his job fairly well, and posibly four or five weeks, somewhere in there,
well enough that I consider him to hold the job. Possibly, now some fellows
may never learn.
Concerning the layoff in August 1961 , Wanzek testified that he was instructed by
Dobrich to discharge the employees and tell them "that they should seek jobs else-
where." Dobrich gave substantially the same testimony in this connection.
Contrary to the contention of the Union , I do not believe that the evidence
establishes that the layoff in August 1961 was seasonal ; or that the employees, with
the exceptions of Finney and Dudley Howard, whose ballots were challenged, had a
reasonable expectancy of reemployment. The layoff in 1960 occurred in November;
and the number of employees remained at approximately 25 until the Respondent
commenced to increase production and rehire about February 1961 . In addition to
the fact that the layoff in 1961 occurred 3 months earlier than in 1960, Wanzek testi-
fied without contradiction that as of the date of the hearing herein the Respondent
still had only about 29 employees . In my opinion , these facts show that the layoff
in 1961 was not seasonal.
It has been found that Wanzek told Dudley Howard and Finney to come back to
the plant and check with him about the possibility of future employment . In their
cases it would appear that Wanzek was satisfied with their work; and that they had
a reasonable expectancy of reemployment , particularly as of the time of the elgibil-
ity date of September 17, 1961.
Accordingly , for the above reasons it will be recommended that the challenges of
Dudley Howard and Charles Finney be overruled ; and that those of Richard Thayer,
Frank Wolcott , Robert Moyer, Ronald Howard , James Needs, and Leroy Surgener
be sustained.
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 operations of the Respondent 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
Since it has been found that the Respondent has engaged in unfair labor practices,
it will be recommended that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
SAN DIEGO COUNTY BUILDING & CONSTRUCTION, ETC. 315
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union of Electrical, Radio and Machine Workers, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
3. By discharging Leroy Surgener on July 31, 1961, the Respondent did not violate
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.
[Recommendations omitted from publication.]
San Diego County Building and Construction Trades Council;
Local 230, Plumbing, Refrigerating and Pipefitting Industries;
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Local Union 36; Inter-
national Union of Operating Engineers, Local Union No. 12
and Broadway Hale Stores , Inc. Case No. 21-CC-454. August
28, 1962
DECISION AND ORDER
On February 15, 1962, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in certain unfair labor practices, and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
Thereafter, the Respondents filed exceptions to the Intermediate
Report and a supporting brief, and the General Counsel and the
Charging Party filed briefs in support of the Intermediate Report.
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 Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following amplification.
Broadway Hale Stores, Inc., herein called Broadway Hale, a de-
partment store chain with branches located at various places in the
State of California, is the owner of a tract of land upon which is being
constructed another store in Chula Vista, herein called the Chula
Vista project. Del E. Webb Corporation, herein called Webb, is the
general contractor on the Chula Vista project. California Water
138 NLRB No. 41.