Skyline Homes, Inc. v. NLRB

• Citation: 323 F.2d 642
• Decision Date: 13 November 1963
• Docket Number: No. 19352.,19352.
• Parties: SKYLINE HOMES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

323 F.2d 642 (1963)

SKYLINE HOMES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 19352.

United States Court of Appeals Fifth Circuit.

October 11, 1963.

Rehearing Denied November 13, 1963.

Larry S. Davidow, Davidow & Davidow, Detroit, Mich., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Standau E. Weinbrecht, Atty., N. L. R. B., Washington, D. C., Stuart Rothman, Gen. Counsel, Melvin J. Welles, Atty., N. L. R. B., for respondent.

Before TUTTLE, Chief Judge, and JONES and GEWIN, Circuit Judges.

JONES, Circuit Judge.

The petition of Skyline Homes, Inc. asks that this Court set aside an order of the National Labor Relations Board directing it to cease and desist from stated practices in violation of Sections 8(a) (1), (3) and (5) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. The Board seeks enforcement of its order. The decision and order of the Board are reported in 134 NLRB 155.

Submitted for our determination are the questions as to whether there is substantial evidence on the record as a whole to support the Board's findings (a) that Skyline Homes laid off eighteen employees in violation of the provisions of Section 8(a) (3) and (1) of the Act; (b) that it interrogated and threatened its employees in violation of Section 8(a) (1) of the Act; and (c) that it refused to bargain in good faith with the United Brotherhood of Carpenters and Joiners in violation of Section 8(a) (5) and (1). We answer the first question in the negative and the second and third in the affirmative.

Some of the facts are undisputed. Skyline Homes is an Indiana corporation with a plant in Ocala, Florida. It manufactures mobile homes, commonly known as trailers. Skyline Homes moved into its present Florida location on May 1, 1960.¹ On May 30 and 31, the plant superintendent, Ralph Kreischer, placed an advertisement for help in the Ocala Star-Banner as follows:

"Skyline needs help in all departments. Only experienced mobile home builders or carpenters need apply. Apply in person to Ralph Kreischer any time at new industrial park near Taylor Field."

The move to the new plant and changes made in the models of trailers had resulted in complaints from some employees that they were unable to make their piece rates. The placing of the advertisement and the hiring of new employees followed. Between June 1 and June 17, fifteen men were hired, rehired, or recalled to work.

Union activity started in the plant on June 11. By Friday, June 17, seventeen out of petitioner's thirty-three employees had signed union authorization cards. That morning three union representatives called on resident manager James C. Overman. The spokesman of the trio, Warren Conary, told Overman that their union represented a majority of his workers and they wished to negotiate a contract for them. The discussion lasted for an hour and many aspects of unionization were discussed. Among other things Overman asked for and got a lengthy explanation of election proceedings. Overman told the union representatives that he was not authorized to bind the company. He requested that he be furnished with a contract form. This was furnished to him after the conference. It contained the usual terms and clauses. Overman sent the contract form to the company's home office in Indiana. A meeting was arranged between Overman and the union officials for the following Tuesday morning. After the Friday meeting Overman called petitioner's president, Arthur Decio, to inform him of developments. The latter told Overman that he was not an officer or director of the company and could not negotiate with the union.

At the end of that work day Kreischer, the plant superintendent, announced the layoff of sixteen men. The employer did not know which, if any, of those laid off had signed up with the union. It appeared later that eight were union adherents and the other eight were not. The following Monday Kreischer recalled one of the non-signers and laid off two more union men.

On Tuesday, Adlai A. Pittman, an organizer of the union, called Overman to report that Warren P. Conary, who was to negotiate for the union, would not arrive in time for the meeting scheduled for ten o'clock that morning and to request that it be postponed until one or two o'clock that afternoon. Overman replied that it would not be worth their while to come since he had been informed that he had no authority to deal with them. That was the last conversation between the union and the company. On Thursday, June 23, the union filed unfair labor practice charges with the Board.

On the same day, June 23, Overman again talked to Skyline Homes' president about the union. Decio told Overman that counsel for the company, Larry S. Davidow, would be in touch with him and would be down the next day to discuss, or negotiate with, the union. He arrived early in the morning on Friday, June 24. Overman met his plane and on their way into Ocala stopped to pick up his mail. In it was a registered letter from the Board notifying the petitioner of the charges filed against it by the union. Mr. Davidow concluded that it would be no use trying to deal with the union while the charges were pending.

The Board found, overruling the Trial Examiner, that the layoffs of June 17 and 20 constituted a violation of Section 8(a) (3). We shall discuss the two layoffs separately and in order. To sustain its determination of discriminatory motivation, the Board relies on the finding that before the layoff on June 17 (1) Overman questioned almost all of the employees, either individually or in groups, about the union, and (2) that someone in the company's home office talked to Kreischer to ascertain whether Kreischer knew who "the instigators" were.

In regard to the first finding, it appears that the Board was mistaken in its reading of the record. It is not shown that Overman questioned any employee prior to the first layoff on Friday afternoon. The Trial Examiner did not so find.

As to the second finding the Trial Examiner accepted the testimony of employee Dodd that he overheard Kreischer, in a conversation with someone at the Indiana headquarters spiced with "yes sirs" and "no sirs," say, "Yes, sir, we know approximately how many" and "Yes, we definitely know who the instigators is sic." Kreischer testified that he did not recall having a conversation with the company headquarters that day and flatly denied ever having made the remarks Dodd attributed to him. However, the Trial Examiner credited Dodd's testimony and we accept his finding. N. L. R. B. v. Walton Mfg. Co., 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829. Nevertheless, the Trial Examiner did not think that this constituted sufficient evidence of a discriminatory motive to warrant a finding of a Section 8(a) (3) violation. We agree. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. As to the first layoff, there was no other evidence of discrimination. The Examiner found, and the Board accepted his finding, that there was no evidence that the petitioner had any knowledge of union activity in the plant prior to the meeting with the negotiators on the morning of June 17. "Knowledge by an employer of the discharged employees' union activities is a vital element in the proof of a violation of Section 8(a) (3)." N. L. R. B. v. Atlanta Coca-Cola Bottling Co., 5th Cir., 1961, 293 F.2d 300, 309, rehearing denied, 296 F.2d 896; see N. L. R. B. v. Moore Dry Kiln Co., 5th Cir., 1963, 320 F.2d 30; Bituminous Material & Supply Co. v. N. L. R. B., 8th Cir., 1960, 281 F. 2d 365; Osceola County Co-op. Creamery Ass'n v. N. L. R. B., 8th Cir., 1958, 251 F.2d 62; cf. N. L. R. B. v. J. Mitchko, Inc., 3rd Cir., 1960, 284 F.2d 573. Here there was only insignificant evidence that the company knew of any specific employee being engaged in union activities. See Dan River Mills, Inc. v. N. L. R. B., 5th Cir., 1960, 274 F.2d 381, 384. Overman claimed that he had decided to have a fairly comprehensive layoff on June 13 and that Kreischer had made up a list for this purpose by the fifteenth. The Board has deplored the inconsistency of petitioner's position in hiring fifteen men in less than three weeks and then laying off eighteen at the end of that period. While we agree that the employer must often show a valid business justification to counter evidence of discriminatory motivation, we think the economic considerations are beside the point where there is insufficient evidence to show that the employer had such knowledge as would permit discrimination. Overman ordered the layoff of sixteen employees, about whose union sympathies and affiliations the company knew nothing, half of whom, it turned out, had signed union cards. We could speculate that he took a "stab in the dark," hoping to rid himself of the "wrong" people, that he reduced his working staff so that his subsequent antiunion campaign would be more manageable, and so forth. But none of this rises above the level of conjecture. See Bituminous Material & Supply Co. v. N. L. R. B., supra, 281 F.2d at 367. There were economic reasons and subsequent recalls which Overman and Kreischer relied upon to justify their actions, but these we consider irrelevant. Without significant evidence that Overman or Kreischer knew of any individual union participation, and a failure to show that he struck at a suspected group of employees, his reasons for laying off these people were his business. It is not the place of the Board or the courts to interfere with the managerial prerogative. N. L. R. B. v. McGahey, 5th Cir., 1956, 233 F.2d 406, 412-413; N. L. R. B. v. Coats & Clark, Inc., 5th Cir., 1956, 231 F.2d 567, 572-573; Portable Elec. Tools, Inc. v. N. L. R. B., 7th Cir., 1962, 309 F. 2d 423; N. L. R. B. v. Montgomery Ward & Co., 8th Cir., 1946, 157 F.2d 486.

We reach the same conclusion with regard to the two employees...