Universal Mobile Homes

National Labor Relations Board - Board Decisions

May 20, 1974

210 N.L.R.B. 689 (N.L.R.B. 1974)

UNIVERSAL MOBILE HOMES 699
Universal Mobile Homes and Aluminum Workers
International Union, AFL-CIO. Case
10-CA-10457
May 20, 1974
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On February 27, 1974, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed cross-exceptions and 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions' of the Administrative Law Judge
only to the extent consistent herewith.
The complaint alleges that Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to hire
employee-applicant John Bowling on July 9, 1973.
The Administrative Law Judge dismissed the com-
plaint on the ground that the General Counsel had
not met his burden of proof. We disagree.
John Bowling was employed by Masdon Indus-
tries, Inc., at Brilliant, Alabama, until he went on
strike and picketed with other employees in May
1973. During the course of the strike, Bowling sought
employment at Respondent's plant in Winfield,
Alabama, which is about 8 or 9 miles from where he
was previously employed at Brilliant.
Shortly before July 4, 1973, Bowling appeared at
the Respondent's plant seeking employment as an
electrician. Bowling credibly testified that at this time
he met Richard C. Nix, a foreman of Respondent,
with whom Bowling had once worked. Nix told
Bowling to see Donald Silas, Respondent's plant
superintendent. Bowling proceeded to Silas' office
and asked Silas for electrician work, mentioning that
he had talked to Nix and had worked with him
before. Silas asked Bowling for his social security
card and whether he had tools. Bowling responded
that he had neither with him, but said that he would
bring the social security card the next morning. Silas
replied, "Fine," and then directed Bowling to go with
Leland Gann, a leadman electrician with whom
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
Bowling had worked previously, to check out
whatever tools Bowling needed.
After Bowling had purchased the necessary tools
and signed for them, according to credited testimo-
ny, Gann placed Bowling in a trailer, where he
worked for 10 or 15 minutes. At that point, Gann
summoned him and said, "I hate this John but that
girl has come back that was working here and so she
had a doctor's slip, they're going to have to give her
the job back, so you come back after the holidays."
Bowling proceeded to talk to Silas who in his
testimony admitted that he informed Bowling that he
would "be glad to put him on" if Bowling checked
back with him the next day or the day following.
Silas also admitted that "If that woman hadn't called
in, and brought in an excuse, I probably would have
put him to work." At another point in his testimony,
Silas conceded that he did hire Bowling on this
occasion.
On Monday, July 9, 1973, Bowling returned to
Respondent's plant and proceeded to Silas' office
where about nine persons were waiting. When Silas
observed Bowling, he told him to wait in the lobby.
As he was proceeding to the lobby, Nix hollered at
Bowling and uttered the following credited remark:
John, I'm not going to beat around the bush
about this, they should have told you when you
was here before, they are not going to work you
here because you-somebody put the finger on
you, that you were the ring leader of that strike at
Brilliant.
Bowling thereupon immediately left the plant.
Although the Administrative Law Judge credited
Bowling with respect to the critical statement
attributed by him to Nix, the Administrative Law
Judge nonetheless concluded that the fact that Nix
made these remarks is not sufficient proof standing
alone to impute a discriminatory motive to the
Respondent in refusing to hire Bowling, notwith-
standing an earlier commitment to hire him. On the
other hand, the Administrative Law Judge acknowl-
edged that there was a strong suspicion that the real
reason for Bowling's rejection for a job was unlawful,
based on the fact that there is no credible reason for
Respondent's rejection of Bowling; there is no
apparent or reasonable explanation for Silas' falsify-
ing the reason for his failure to continue Bowling in
his employment on the first visit or to assert falsely
that he did not see him on the second occasion; and
there is no plausible explanation as to why Respon-
dent hired a "young boy" rather than Bowling, an
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings.
210 NLRB No. 115
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
experienced electrician, and thereafter hired other
employees, nevertheless rejecting Bowling as an
employee. However, the Administrative Law Judge
concluded that "there has been no showing of
employer union animus," for he refused to infer from
Nix's remarks that the Respondent had knowledge of
Bowling's strike activities, that the Respondent
harbored union animus toward Bowling, and that the
rejection of Bowling gratified the Respondent's
union animus.
Contrary to the Administrative Law Judge, we find
that this is a classic discriminatory refusal to hire and
that Nix's remarks are indeed attributable to Res-
pondent. Thus, Bowling was told by Nix that "they
are not going to work you here because . . . you
were the ring leader of that strike at Brilliant."
(Emphasis supplied.) Nix did not preface his remarks
as his opinion and in fact, in referring to "they," gave
the appearance of having knowledge from Respon-
dent as to its reasons for refusing to hire Bowling. In
addition, Nix in making the statement was in fact a
supervisor and agent of Respondent. Thus, his
supervisory and agency status was alleged in the
complaint and was admitted in Respondent's answer.
Moreover, in his affidavit, Nix stated that he
considered himself at the time to be a supervisor, and
there were 50 to 60 men in his department whom he
trained and directed and concerning whom he
exercised nonroutine judgment. Finally, it is clear
that Bowling would have been employed, as eviden-
ced by Silas' earlier commitment to hire him, as well
as by the fact that vacancies existed after July 9,
1973, for which he could have been hired.
In conclusion, under all these circumstances, we
find that Respondent failed and refused to employ
Bowling on July 9, 1973, contrary to its earlier
commitment to hire him, and that the reason
Respondent refused to hire him was because Bowling
had engaged in protected union activities in striking
and picketing at Masdon in Brilliant, Alabama. Such
refusal to employ Bowling constitutes a violation of
Section 8(a)(3) and (1) of the Act.2
CONCLUSION OF LAW
1. Respondent is an employer whose operations
affect commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Aluminum Workers International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By the refusal to employ John Bowling under
the circumstances previously described, Respondent
has discriminated with respect to his hire and tenure
of employment , thereby discouraging membership in
the Aluminum Workers International Union,
AFL-CIO, and any other labor organization, and
has thereby engaged in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct , Respondent has also
interfered with , restrained , and coerced its employees
in the exercise of their statutory rights guaranteed by
Section 7 of the Act and thereby has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated Section
8(a)(3) and (1) of the Act in discriminatorily refusing
to employ John Bowling, we will therefore order that
Respondent make John Bowling whole for any loss
of earnings he may have suffered as a result of the
discrimination, by payment to him of a sum of
money equal to that which he normally would have
earned as wages from July 9, 1973, to the date of a
valid offer of employment, less net earnings during
such period, with backpay and interest thereon to be
computed in the manner described by the Board in
F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716. We shall
also order that Respondent offer John Bowling
immediate and full employment in the job he would
have occupied absent the discriminatory refusal to
employ him or, if that job no longer exists, to a
substantially equivalent position, without prejudice
to any seniority rights or privileges.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Universal Mobile Homes, Winfield, Alabama, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating with respect to the hiring of
John Bowling, by refusing to hire him because of his
protected union activities, thereby discouraging
membership in and concerted activities on behalf of
the Union or any other labor organization.
(b) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
statutory rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer John Bowling immediate and full employ-
2 Congoleum Industries, Inc, 194 NLRB 359, Ashville-Whitney Nursing
Home, 188 NLRB 235
UNIVERSAL MOBILE HOMES 691
went in the job that he would have occupied absent
the discrimination against him or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to any seniority rights or other
rights and privileges.
(b) Make John Bowling whole in the manner set
forth in the Remedy section of this Decision, for any
loss of earnings he may have suffered from July 9,
1973, to the date of a valid offer of employment.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its plant in Winfield, Alabama, copies of
the attached notice marked "Appendix."3 Copies of
said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
engage in concerted activities for the purposes of
collective bargaining or other mutual ai or
protection , or to refrain from any such ac nvities.
WE WILL offer John Bowling immediate and
full employment in the job that he would have
occupied absent the discrimination against him
or, if that job no longer exists, to a substantially
equivalent position , without prejudice to any
seniority rights or privileges.
WE WILL make John Bowling whole for any
loss of earnings he may have suffered from July 9,
1973, to the date of a valid offer of reinstatement,
together with interest thereon at 6 percent per
annum.
UNIVERSAL MOBILE
HOMES
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Peachtree Building, Room 701, 730
Peachtree Street NE., Atlanta, Georgia 30308,
Telephone 404-526-5760.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminate with respect to the
hiring of John Bowling , or any other person, by
refusing to hire him because of his protected
union activities , thereby discouraging member-
ship in, or concerted activities on behalf of,
Aluminum Workers International Union,
AFL-CIO, or any other labor organization.
WE WILL NOT in any other manner interfere
with , restrain, or coerce our employees in the
exercise of their right to self-organization, to
form , join, or assist labor organizations, including
Aluminum Workers International Union,
AFL-CIO, to bargain collectively through a
bargaining agent chosen by our employees, to
DECISION
STATEMENT OF THE CASE
LowELL GOERLICH , Administrative Law Judge: The
charge filed by Aluminum Workers International Union,
AFL-CIO, herein called the Union , on November 6, 1973,
was served on Universal Mobile Homes, the Respondent
herein, by registered mail on the same date. A complaint
and notice of hearing was issued on December 5, 1973. The
complaint charged that the Respondent on or about July 9,
1973, failed and refused to hire employee -applicant John
Bowling because of his union affection in violation of
Section 8(aX3) and ( 1) of the National Labor Relations
Act, as amended , herein referred to as the Act.
The Respondent filed a timely answer denying that it
had engaged in or was engaging in any of the unfair labor
practices alleged.
The case came on for trial on January 15, 1974, at
Winfield, Alabama . Each party was afforded a full
opportunity to be heard , to call, examine, and cross-
examine witnesses , to argue orally on the record , to submit
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposed findings of fact and conclusions , and to file
briefs. All briefs have been carefully considered.
FINDINGS OF FACT,' CONCLUSIONS, AND REASONS
THEREFOR
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein,
a corporation with an office and place of business located
at Winfield , Alabama, where it is engaged in the manufac-
ture of mobile homes. Respondent, during the past
calendar year , which period is representative of all times
material herein, sold and shipped finished products valued
in excess of $50,000 directly to customers located outside
the State of Alabama.
Respondent is, and has been at all times material herein,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
First: The General Counsel claims that Richard S. Nix, a
foreman , made the following remarks to John Bowling, the
alleged discriminatee , on July 10, 1973 , "John , I'm not
going to beat around the bush about this, they should have
told you when you was here before ... they are not going
to work you here because you-somebody put the finger
on you, that you were the ring leader on that strike at
Brilliant." 2 Based upon this remark, the General Counsel
reasons that Bowling was unlawfully rejected as an
employee by the Respondent. Nix, in an affidavit,3 denied
that he had made the remark to Bowling, and the
Respondent denied that it had discriminatorily rejected
Bowling for employment. Thus, a prime consideration is
credibility.4
The witnesses agree that Bowling appeared at the
Respondent's plant shortly before July 4, 1973, seeking
employment as an electrician. On this occasion , after an
interview with Plant Superintendent Donald Silas , Bowling
was sent to the "electrician's table" in the plant. Almost all
the other pertinent testimony is in conflict.
Bowling and Nix agree that Bowling appeared at the
plant more than one time . Silas claims he saw Bowling at
i The facts found herein are based on the record as a whole and the
observations of the witnesses.
2 Sometime prior to his appearance for work at the Respondent 's plant,
Bowling had engaged in e strike at Masdon Industries , Brilliant, Alabama, a
distance of 8 or 9 miles from Winfield, Alabama
3 Nix, about a week before the trial , had quit his employment with the
Respondent and had removed himself to Texas . On the day of the trial he
was not available for testimony . The parties stipulated that if he were called
as a witness he would testify as set forth in his affidavit which was admitted
without objection as part of the record.
4 In that Nix did not appear as a witness, the demeanor of Nix , of course,
may not be considered In respect to Bowling's account of Nix's remarks,
Bowling's demeanor has not been relied upon . The probabilities have been
weighed in light of the evidence , the demeanor of the witnesses who
the plant on only one occasion. On this point, Silas is
discredited.
Bowling testified that about a week before the Fourth of
July he sought employment at the Respondent' s plant. He
met Nix coming through the guardshack at the gate. Nix
directed Bowling to "see Mr. Silas." Nix admits that he saw
Bowling standing in the guardshack, but denies that he
spoke to him. In view of the fact that Nix and Bowling
were acquainted and had previously worked together it
seems unreasonable that Nix would not have spoken to
Bowling. It is found Nix did direct Bowling to Silas.
According to Bowling he proceeded to Silas' office which
was "upstairs." He said to Silas , "I'm John Bowling, I've
talked to Nix around here . . . I've worked with him
before, I'd like an electrician's job." Silas asked Bowling
for his social security card and whether he had tools.
Bowling answered that he had neither with him. Bowling
said that he would bring the social security card on the
following morning. Silas replied, "Fine," and put Bowling's
slip "where you put your dependents on" in the drawer.
Silas said that Leland Gann, who was standing in the
office,5 would show Bowling where the toolcrib was. Gann
took Bowling to the toolcrib where Bowling purchased
necessary tools and signed for the purchase. Gann then
placed Bowling in a trailer, where he worked for 10 or 15
minutes, after which Gann summoned him and said, "I
hate this John but that girl has come back that was
working here and so she had a doctor's slip, they're going
to have to give her the job back, so you come back after the
holidays." Bowling returned the tools to Gann and asked
him to turn them in and "rub [his] name off the slip."
Silas' version differs. Silas testified that he was "down-
stairs" when he first saw Bowling, whom he had not seen
before. Bowling asked Silas for a job and Silas , pointing,
told him "to go back and wait around the electrician's
table at the back part of the plant," and he would find out
whether he had an opening .6 Silas said that he did not tell
him to see Gann. After Bowling left for the electrician's
table Silas checked the timecards at the gate and on his
way back "somebody gave word" that a female electrician
had called in and was bringing a doctor's excuse. Silas
directed Bowling to go to the front office to fill out an
application.?
According to Silas, the female electrician, Deborah
(Morrison) McCluskey, had been absent for 2 days without
calling in her absence and had called in about 7 a.m.,
about 5 minutes after Silas had first interviewed Bowling,
and reported that she would be returning to work. Silas
testified, and the record as a whole . Bowling's demeanor has been
considered in respect to those witnesses who testified in contradiction to his
testimony Based upon such comparison , Bowling appears to be the more
credible witness
5 Leland Gann was a leadman electrician working for the Respondent
with whom Bowling had worked previously
6 Silas testified
Mr Bowling come and said he knowed Joe Gann , said he was an
electrician, and wanted to know if we had an opening. I told him I
didn't know, to go back to the electrician's table, and wait around until
I got a chance to get back there.
7 Apparently Silas did not reveal to Bowling the reason for his failing to
hire him The female employee reference does not appear in Silas ' affidavit.
UNIVERSAL MOBILE HOMES
said the female electrician appeared for work at about 9
a.m.
Silas first testified that he was "positive" that he did not
inform Bowling that he would "put him on" after the
holiday.8 However, when Silas was shown his affidavit, he
admitted that he informed Bowling that he would "be glad
to put him on" if he would check back with him .9 Silas
testified , "If that woman hadn't called in, and brought in
an excuse , I probably would have put him to work."
Leland Gann's version differed to some degree from that
of Silas and Bowling. Gann agreed that he had worked
with Bowling at Winchester Homes. According to Gann,
on the day Bowling appeared at the plant Silas motioned
Gann to come toward the superintendent's office where he
told him to tell Bowling "to wait around in the electrician's
department, to see if there were any openings." Silas said
that "if there was he might put him on." Gann escorted
Bowling to the electrician's table. Later Silas appeared and
Gann heard Silas tell Bowling that "he didn't have any
openings, to check back with him." Gann denied the
toolcrib incident or that he had put Bowling to work. Gann
said a young boy was hired the following week 10 as an
electrician tie-off.
On the subject of Deborah (Morrison) McCluskey, Gann
testified that she had been ill the day before Bowling had
appeared for employment, which was the only day she had
been absent. She returned to work "a little after seven,"
before Bowling had left the plant. McCluskey had called in
the day before, stating that she was sick.
Silas asserted that he had seen Bowling only one time at
the plant. Bowling claimed that he had returned to the
plant on July 9, 1973, and proceeded to Silas ' office where
about nine persons were waiting . When Silas observed
Bowling he told him to wait in the "lobby." On the way,
Nix "hollered" at Bowling and uttered the remarks set out
above. Bowling immediately left the plant.
Second: The first question is: Why did Silas discontinue
Bowling 's employment on his first appearance at the plant?
In this regard, the evidence is convincing that Silas actually
hired Bowling. Such finding is not only supported by the
fact that Silas testified that he "probably" would have
hired Bowling had not McCluskey phoned that she was
reporting for work, but, in fact, Silas admitted that he did
hire Bowling. Silas testified:
Q. Was Bowling the only job applicant that day?
A. That was hired?
Q. Yes.
A. Yes, Sir.
Bowling's credibility is enhanced by Silas' admission
because Bowling claimed that he did commence work.
Bowling 's credibility is also enhanced by the fact that he
recited in his testimony substantially the same reason on
which Silas claimed he relied for rejecting him for
employment. It is unlikely that Bowling could have
obtained this information except from a company source.
Additionally Bowling's testimony is enhanced because of
the material conflicts in the testimony of Gann and Silas.
8 Silas testified "I told him to fill out an application , because I don't
know the man until I've looked over his application , check his background"
Nevertheless , Silas admitted that sometimes persons were employed before
they filled out applications
0 Silas' affidavit read "I went to the guard shack to count the time cards,
693
Thus it is concluded that Silas seized upon McCluskey's
absence as a pretext, to which he sought to add credence
by fabricating the phone call, an additional day's absence,
a doctor's report, and a late report for work, all of which
did not conform to Gann's testimony . Moreover , having
examined the timecards shortly after McCluskey had
reported for work , Silas must have known that she was on
the job at the time he approached Bowling . Indeed, had
Gann's testimony been false on these points and Silas'
testimony true, surely the Respondent would have prod-
uced McCluskey's timecard or the doctor's report . "[TJhe
production of weak evidence when strong is available can
lead only to the conclusion that the strong would have
been adverse." Interstate Circuit, Inc. v. U.S., 306 U .S. 208,
226 (1939). Thus it is concluded that Bowling's employ-
ment was not discontinued for the reason advanced by
Silas.
Third.- The final question involves whether Silas refused
to employ Bowling on his second appearance at the plant
because of his union affection . This question, of course,
presumes that Bowling appeared at the plant on the second
occasion and contacted Silas as he claimed . Having found
Silas to have been an unreliable witness and Bowling a
reliable witness, and, it appearing in Nix's affidavit that
Bowling had visited the plant on more than one occasion
looking for a job, it is found that Bowling requested
employment from Silas on the second occasion as Bowling
claimed.
It is also found that Nix uttered the remarks attributed to
him by Bowling . Nix was acquainted with Bowling and no
doubt knew his history as a striker . With this in mind and
aware that Bowling had been refused employment when
jobs were available, Nix, by his remarks, simply confirmed
what a reasonable person would have concluded under the
circumstances. However, the fact that Nix made these
remarks is not sufficient proof standing alone to impute a
discriminatory motive to the Respondent. Nevertheless,
these factors create a strong suspicion that the real reason
for Bowling's rejection for a job was unlawful . First, Silas
is a discredited witness ; second, except that the rejection of
Bowling be interpreted in discriminatory terms, there is no
apparent or reasonable explanation for Silas' falsifying the
reason for his failure to continue Bowling in employment
on the first occasion or to falsely assert that he did not see
him on the second occasion ; third , the record is barren of
any plausible explanation as to why the Respondent hired
a "young boy" rather than the experienced electrician,
Bowling, and thereafter in July and August hired other
employees, nevertheless , rejecting Bowling as an employee;
fourth, no credible reasons were advanced for the
Respondent's rejection of Bowling. As was said in Ames
Ready-Mix Concrete, Inc. v. N. L R B., 411 F.2d 1159, 1161
(C.A. 8, 1969), " '. . . when every other plausible
'motive has been eliminated and the reasons advanced and
not persuasive, the union activity may well disclose the real
motive behind the employer's action.' "
However, a strong suspicion is not enough to support the
and I came back and told him [Bowlingl that I had no openings that day,
but that if he checked back with me the next day , or the day following. I
would be glad to put him on."
iu The parties stipulated that the Respondent hired employees in July
and August 1973.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel's burden of proof . Moreover, there has toward Bowling, and that the rejection of Bowling gratified
been no showing of employer union animus . Indeed, to the Respondent's union animus. Upon the basis of the
sustain the complaint one must infer from Nix's remarks record as a whole, these inferences may not be drawn.
that the Respondent had knowledge of Bowling's strike [Recommended Order omitted from publication.)
activities, that the Respondent harbored union animus