Jordan Co.

JORDAN COMPANIES 143 The Jordan Companies and United Furniture Work- ers of America, Local 282, AFL-CIO. Cases 26-CA-7755-1 and 26-CA-7755-2 August 13, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On April 21, 1980, Administrative Law Judge Irwin Kaplan issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.l ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. In fn. 5 of his Decision, the Administrative Law Judge seems to imply that some employees had been discharged from department 420 during the time period between the March plant closing until early May. In fact, while some employees were discharged during that time period, they were from departments other than department 420. We hereby cor- rect the footnote to accord with the record evidence DECISION STATEMENT OF THE CASE IRWIN KAPLAN, Administrative Law Judge: This case was heard in Memphis, Tennessee, on January 21, and 22, 1980. The underlying charges in Cases 26-CA-7755-1 and 26-CA-7755-2 were filed on April 13, 1979, by the United Furniture Workers of America, Local 282, AFL- CIO (herein the Union), principally alleging that The Jordan Companies (herein Respondent) discharged Katie Newson and Coreen Woods because of their activities on behalf of the Union in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (herein the Act). The aforenoted charges gave rise to an order consolidating cases, complaint, and notice of hearing which issued on August 9, 1979, as amended on August 15, 1979. Respondent filed an answer conceding, inter alia, jurisdictional facts but denying all allegations that it committed any unfair labor practices. 251 NLRB No. 21 Upon the entire record,' including my observation of the demeanor of the witnesses, and after careful consid- eration of the post-trial briefs, I find as follows: FINDINGS OF FACT I. JURISDICTION The Respondent, The Jordan Companies, a corpora- tion with an office and place of business in Memphis, Tennessee, herein called Respondent's facility, has been engaged in the business of manufacturing aluminum win- dows and doors primarily used in the construction of new housing. Respondent, annually, in connection with the aforenoted business operations, sold and shipped from its Memphis, Tennessee, facility goods and materi- als valued in excess of $50,000 directly to points outside the State of Tennessee. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent admits, and I find, that United Furni- ture Workers of America, Local 282, AFL-CIO (herein the Union), is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The Setting The Jordan Companies maintain an aluminum division which produces, inter alia, storm windows, prime win- dows, storm doors, and sliding glass doors primarily used in the construction of new housing, mostly in the mid- South area.2 John McDougal, vice president of manufac- turing, aluminum division, testified that because of a "hard [cold] winter" and an "unusually wet spring" in 19793 the number of housing starts (new residential con- struction), on which the division was largely dependent, fell off drastically. According to McDougal, this resulted in the fewest sales and largest inventory in the history of the aluminum division. McDougal testified that, in order to reduce the huge surplus (inventory) and to maintain the size of the work force, he closed the plant during the first week in March and required everyone to take a 1- week vacation at that time. 4 McDougal asserted this was designed to give the Company some breathing room to enable it to ship merchandise from previous orders there- I The General Counsel's unopposed motion to correct the transcript.dated March 14. 1980, is granted and received in evidence as G C. Exh. 9. 2 The aluminum division is also referred to as department 420 which at all times material herein was comprised of the following subdepartments prime window M-10, prime window-21. storm window. patio door. storm door, and screen. (See G.C Exh 2 ) The alleged discriminatees were employed in the screen department at the time they were dis- charged in April 1979. Up until that point in time, the screen department fabricated screens principally for the prime window departments but also furnished and rolled screens for other departments within department 420. By the time of the instant hearing. the screen department as a sepa- rate department was no longer operational: each department fabricated and rolled its own screens 3 All dates hereinafter refer to 1979 unless otherwise noted 4 Employees who have worked for the Company for a full year are entitled to 2 weeks' vacation. Traditionally. one of these weeks is taken between Christmas and New Year's when its plant i closed for inventory and maintenance The other week is scheduled for the summer. JORDAN COMPANIES l43 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by reducing the size of the inventory without at the same time adding to it newly produced goods. On the other hand he was hoping for new orders for merchandise to go directly to the customer rather than to the stockroom or warehouse. According to McDougal the bad weather did not abate significantly and the anticipated orders did not come so that some reduction in work force was neces- sary. Thus, soon after the employees returned from vaca- tion in March he elected not to immediately replace anyone who resigned or was terminated. 5 McDougal also ascertained on April 2 that he had a surplus of 7,500 screens and concluded that it would be more efficient to phase out the screen department "as quickly as feasible" and have each of the departments within the division make their own screens as needed. In addition, he decid- ed to lay off two of the four employees in the screen de- partment. On April 4, he advised Katie Newson and Coreen Woods, the two junior employees in the screen department, that they were terminated because there was not enough work for them to do.6 Newson and Woods began working for Respondent in April and October 1977, respectively, and virtually their entire employment consisted of rolling screens 7 in the screen department under the immediate supervision of Harold Bright. They had long discussed with each other the advantages of having a union. These conversations which occurred with greater frequency around January 1979 were generally held at lunchtime and not in the presence of any supervisors In late March, all four screen department employees met with McDougal to discuss what they believed were inequities in the bonus system and for some clarification of the system itself. Woods complained that the screen department employees were getting a 12-percent bonus whereas employees employed in other departments, for which the screen department rolled screens, were getting a 20-percent bonus. Rosie Newson asked McDougal why she, Woods, and Katie Newson received $15 in bonus money and Beverly Kelley only received $9. According to Katie Newson and Woods, McDougal promised to show them some papers explaining the bonus system, but this was not done. Woods testified that, some time later that day, the four screen department employees discussed further their problems with regard to working conditions and the need for a union. Woods also testified that ap- proximately 1 week later, on or about April 2, Supervi- sor Bright had an argument with Katie Newson (in Woods' presence) about a work-related problem. Ac- cording to Woods, she told Katie Newson that it was S The record discloses that no new employees were hired in depart- ment 420 until May 9 and several employees had resigned or were dis- charged during this time frame. (See G.C. Exh. 3(g-i).) 6 The two senior employees in the department were Roie VNewson and Beverly Kelley. Respondent filed separation notices dated April 4 with the Tennessee Department of Employment Security stating that Woods and Newson were discharged because of "[rieduction in force. junior employee[s] with regard to seniority in screen Department." (See G.C Exhs. 6 and 8.) 7 Rolling screens was essentially a simple operation which took ap- proximately 3 weeks' training to become proficient. It involved rolling wire into a screen perimeter frame. time to get a union and to talk to her (Newson's) hus- band about getting union cards.8 On April 3, Newson arrived at Respondent's facility at or about 6:40 a.m. with a number of union authorization cards which she handed out to employees during the course of the day. She got back two signed cards at the morning break,9 another at lunch, and approximately four other cards during the afternoon break. Newson's workday ended at 3:30 p.m. and she continued her orga- nizing efforts outside the plant where she handed out ap- proximately five additional union cards. At about the same time Newson gave Woods some cards to distribute which the latter gave to employees in her carpool on her way home after work. On April 4, minutes before the end of the workday, McDougal had Newson and Woods summoned to his office where he told them that he was laying them off because of a shortage of work in the screen department. Woods tried to dissuade McDougal from taking this action and asked, inter alia, why he did not lay off less senior employees who were first hired earlier in the year. McDougal explained that the Company did not need screen rollers. ° Woods asked McDougal whether he would recall them, to which he replied that he would consider it. However, he told them that they would have to reapply. According to McDougal and Supervisor Bright they did not know of any union activity prior to the discharge of Newson and Woods. By letter dated April 13 (Resp. Exh. 4), the Regional Director for Region 26 notified Respondent that the Union had filed a representation petition in Case 26-RC- 5986 which was received on April 16. The Union at some unspecified date was eventually duly certified as the collective-bargaining representative for Respondent's employees and at the time of the hearing the parties were engaged in ongoing contract negotiations. Woods and Newson reapplied on May 11 and were told by McDougal that they would be considered for employment as openings occurred. McDougal testified that he had two openings for screen rollers in September: one on the day shift, the other on the night shift, and contacted Newson and Woods for these jobs. While neither one could take the night-shift job, they were both reemployed on September 4. McDougal placed Newson in department 10 rolling screens and had Woods do some glazing work temporar- ily until he was able to find screen rolling work for her : Katie NVeson's account is somewhat at variance with the version pro- vided bh Woods According to Newson she asked Wood on April 2 whether she was "still willing" to help her organize the plant and the latter responded affirmatively. Further it. also appears from Newson's testi- mony that her argument with Bright occurred on the following day, April 3. In any event I do not deem these differences material as the record otherwise clearly establishes that both Woods and Newson were engaged in substantial union activity on April 3. ooads testified that she signed and turned over to Newson a union card during the morning break (G.C Exh. 5) Newson also signed a union card that day (G.C Exh 7) "' There is no evidence tending to show that the Company retained any employee who rolled screens with less seniority than Newson or Woods. II It is oted that on their job applications in answer to "kind of work desired" Newson and Woods wrote "Roll Screen[s]" and "Screen[s]" re- spectiicely JORDAN COMPANIES 145 in the storm window department. Newson and Woods were again laid off in January 1980 and were not work- ing for the Company at the time of the hearing. 12 Discussion and Conclusions The record discloses that Newson and Woods had long discussed with each other the need to have a union. They had these discussions with greater frequency in early 1979. There is no contention that these discussions, which were generally held at lunchtime, were in the presence of any supervisor or were otherwise known by management. In late March, Woods, Katie Newson, the two senior employees in the screen department, Rosie Newson, and Kelley met with McDougal and discussed what they believed to be inequities in the bonus system. According to Woods and Katie Newson, all four em- ployees were dissatisfied with McDougal's explanations and later that day they collectively discussed the need for a union. This took concrete form on April 2 when Woods and Katie Newson decided that the latter would ask her husband, a union official, for union cards. Newson distributed and got back a number of signed union cards at work on April 3 including one such card from Woods. Woods also gave out union cards that day to employees in her carpool on her way home after work. There is no testimony tending to show that any supervisor witnessed union activities on April 3 or for that matter union activities on the following day when Newson and Woods were discharged. In this connection the record discloses that Newson and Woods took pains to keep their activities covert. Thus, Newson conceded on cross-examination that she and Woods did everything they could to conceal their activities from supervision. They did not wear union buttons or other indicia reflect- ing union support and did not hand out union literature. The record reveals that of approximately 74 employ- ees only Newson and Woods were discharged. The Gen- eral Counsel, citing C.S.C Oil Company, a Division of Cook United Inc., d/b/a Ontario Gasoline & Car Wash, 1 3 contends that the Board's small-plant doctrine under Wiese Plow'4 is applicable to the case at bar and accord- ingly company knowledge of union activity should be in- ferred. While the failure to establish direct company knowl- edge of any union activity, by itself, may not foreclose drawing an inference thereof, as contended by the Gen- eral Counsel, I find herein on the basis of the record as a whole that such an inference is not warranted.' 5 I find most persuasive an absence of any evidence tending to show even the slightest union animus. This takes on greater significance given the substantial time frame in- volved from on or about April 3, 1979, when union cards were first distributed to January 1980, the date of 12 The record does not disclose whether Newson and W'oods sere the only employees laid off in January 1980. In any event, the General Coun- sel does not contend that this second layoff was predicated on unlawful considerations and it is not alleged as a separate icolation i3 228 NLRB 950, fn 2 (1977) '' Wiese Plow. Welding Co., Inc., 123 NLRB 616 (1959) i5 It is noted that in Ontario Gasolinc & Car Wash, supra, relied on by the General Counsel, he 8(a)13) and (1) allegations Aere dismised See also Steel-Tex Manufacturing Corp, 206 NLRH 4hl (1973), Len .4rnAm Ford. 202 NLRB 816, 820. 821 (1973) the instant hearing, at which time Respondent was en- gaged in ongoing contract negotiations with the Union which had won the Board-conducted election. Moreover, the General Counsel has failed to establish by a preponderance of the credible evidence that Re- spondent's reason for discharging Woods and Newson for lack of work on April 4 was pretextual. It is undis- puted that approximately I month earlier Respondent closed its plant for I week and compelled its employees to take an uncustomary vacation at that time of the year. It is also undisputed that this action predated any union activity and was caused by poor weather conditions and a concomitant slump in business. When the weather failed to improve significantly after the employees re- turned to work, Respondent determined that a reduction in the size of the work force was necessary. Thus it did not hire any new employees for the next few months. Further, Vice President McDougal credibly testified that as he had ascertained on April 2 that the Company had a huge surplus of screens he decided to phase out the screen department as a separate department and have the other departments produce their own screens as needed. In connection therewith he concluded that the screen de- partment was most expendable in terms of a cutback in personnel. With this backdrop on April 4 he terminated Woods and Newson, the two most junior employees in the screen department. While the General Counsel in his brief points out that Respondent hired new employees on May 9 and 10 (G.C. Exh. 3(g)), it is noted that McDougal told Woods and Newson that they would have to reapply to be con- sidered for future employment and this they did not do until May 11. 7 It is also noted that Woods and Newson in their reapplications expressed continued interest to work at rolling screens but that such openings did not occur until September at which time they were contact- ed by McDougal and reemployed. Insofar as other em- ployees were hired in department 420 prior to Septem- ber, there is no record evidence tending to show that any of these employees were engaged in rolling screens. In short, the failure to establish company knowledge of union activity antedating the discharges of Woods and Newson, the fact that Woods and Newson were the junior employees in terms of seniority in the screen de- partment, the failure to establish that Respondent's reason for terminating these employees was pretextual, the lack of any union animus covering an extended period with contemporaneous union activity including an election, and the fact that Respondent reemployed these employees all tend to persuade me that Respondent's acts and conduct vis-a-vis Woods and Newson were not predi- cated on unlawful considerations. While the timing of the discharges raises some suspicions, I find on the basis of the entire record that the General Counsel has failed to meet his burden by a preponderance of the credible evidence of establishing that Woods and Newson were le Cf Long Is/and .4irport Limousin Srvie Corp., 191 NLRB 94 (1971) 1 The record discloses that the last layoff Respondent's emploee, ex- perienced ssas sometime during the years 1974 75 and the emploses laid off at that time were required Iio reapply hefore the, were reemplosed JORDAN COMPANIES 145 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged in violation of Section 8(a)(3) and (1) of the Act. 8 Accordingly I shall recommend that these allega- tions be dismissed in their entirety. CONCLUSIONS OF LAW 1. The Respondent, The Jordan Companies, is an em- ployer within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Furniture Workers of America, Local 282, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. "' See Carrom Division. Affilared Hospital Products, Inc., 245 NL RB No. 89. fn. 1 (1979} K & E Upholstery Co.. Inc, 247 NlRB No 96 (1980). 3. The General Counsel has not proved by a prepon- derance of the credible evidence that Respondent has violated Section 8(a)(3) and (1) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in these proceedings, and pur- suant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended. ORDER ' 9 The amended consolidated complaint is hereby dis- missed in its entirety. 19 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.