Pasquier Panel Products, Inc.

PASQUIER PANEL PRODUCTS, INC. Pasquier Panel Products, Inc. and Lumber and Saw- mill Workers Local 2633, Puget Sound District Council-LSW, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Petitioner. Case 19-RC-7338 July 10, 1975 DECISION ON REVIEW BY MEMBERS FANNING, JENKINS, AND KENNEDY On January 16, 1975, the Regional Director for Region 19 issued a Decision and Direction of Elec- tion in the above-entitled proceeding in which he found, inter alia, that the Employer's employees on layoff at the date of the hearing had a reasonable expectancy of recall in the foreseeable future and therefore were eligible to vote. Thereafter, in accor- dance with Section 102.67 of the National Labor Re- lations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for re- view of the Regional Director's decision, alleging er- ror in finding that the laid-off employees were eligi- ble to vote. By telegraphic order dated February 13, 1975, the Board granted the request for review and stayed the election pending decision on review. Thereafter, the Petitioner filed a brief on review. 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 entire record in this case with respect to the issues under review, includ- ing the documents of the parties, and makes the fol- lowing findings: The Employer, a State of Washington corporation, is engaged in the operation of two specialty fabricat- ing plants at Summer and East Puyallup, Washing- ton, where it manufactures plywood and particle board components for various products made by other companies throughout the United States. The more than 100 companies using these components cover various segments of the economy, and include a major automobile manufacturer, a major broad- casting network, the housing industry, and recre- ational industries. Since 1952, when the Employer commenced its op- erations, it has been steadily increasing its annual volume of sales. Thus, between the years 1960 and 1970 its annual sales approximated $4 to 5 million and between 1971 and 1974, approximated $6 to 8 million. However, in the late part of 1974 and early 1975 the Employer's sales dropped sharply, appar- 71 ently due to the general decline in the economy na- tionally and the loss by the Employer to foreign com- petition of one of its major users of its specialty prod- ucts. The record discloses that sales dropped from a high of approximately $1 million in March 1974 to approximately $347,000 in November, with antici- pated sales of $220,000 for December 1974 and only $125,000 for January 1975. According to the Employer, it was because of this unprecedented decline in sales that it laid off a total of 91 employees during October and November 1974,1 leaving a remaining complement, at its two locations combined, of 58 employees, including 45 production and maintenance employees. At the time of the November layoff, Manager Kreuger informed the laid-off employees that the layoff was necessary because work "had fallen off almost completely." He advised them to apply for unemployment compensa- tion as soon as possible and discussed their life insur- ance and medical coverage, pointing out the insur- ance would continue until the end of December but the medical coverage would extend only until the end of November, and if they wanted to continue it thereafter at their own expense, they could make such arrangements. The employees were also given a leaflet which explained the matters discussed con- cerning the insurance and medical coverage, the need to apply for unemployment compensation, and a re- quest for a current address and phone number of each employee if it differed from that possessed by the Employer. The employees were not told of any specific date they might be recalled and, according to the testimony of the general manager, he indicated the prospects were very poor that they would be called back on the job.' Although the Employer admits that the employees are considered to be in layoff status and will be con- sidered for recall if needed, it contends that the re- cord fails to establish that the laid-off employees have a reasonable expectation of being recalled in the foreseeable future due to the present economic situation in the nation which has affected various in- dustries upon which it depends for business. The Employer's president testified that its sales were off 75 percent at the time of the hearing and he hoped that the decline in sales would average out to only 25 percent for the year. He stated that although the Em- ployer is actively seeking new business it has not re- ' Nine employees were laid off on October 25 , ten on October 31, and 72 were laid off on November 8, 1974. 2 Two employees who testified generally confirmed Kreuger's remarks to the laid-off employees . One employee stated that the employees were also advised to find employment "wherever we could" and that it was made clear "they didn't know when they would be able to hire us back" but they would do so when production picked up. The other employee could not recall exactly what was said about the possibility of recall or rehire. 219 NLRB No. 14 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceived any substantial new orders since the layoff. Although the Employer was hopeful the situation would improve, it was not optimistic in view of re- ports concerning some of its customers and the econ- omy generally. The Employer's vice president testi- fied that a minimum sales volume of $200,000 per month must be maintained in order to retain the pre- sent work force. The Employer testified that as of the hearing date, the prospect of recalling the employees on layoff was no different than it was as of the date of the layoff. Contrary to the Regional Director, we do not find that the Employer's past history of steady growth in sales volume or the expressed intent to recall the laid- off employees as soon as production requires it war- rants a conclusion that the laid-off employees here have a reasonable expectation of recall in the fore- seeable future. The economic recession during the re- cent period has affected major industries throughout the nation, resulting in increased unemployment of national concern. The Employer herein supplies numerous industries, particularly automotive, hous- ing, and recreational, which have been significantly affected by the economic situation. Thus, unlike ear- lier periods when its annual sales volume increased, the present business conditions, considered "unprec- edented" by the Employer, do not lend themselves to any predictions of an upsurge in production de- mands which would require a recall of the laid-off employees. In these circumstances, we find, contrary to the Regional Director, that those employees laid off in October and November 1974 who have not been re- called or given notice of recall before the eligibility date do not have a reasonable expectancy of recall in the foreseeable future and are therefore ineligible to vote in the election.3 Accordingly, the case is hereby remanded to the Regional Director for Region 19 for the purpose of conducting an election pursuant to his Decision and Direction of Election, as modified herein, except that the payroll period for determining eligibility shall be that immediately preceding the date below. [Excels- ior footnote omitted from publication.] MEMBER FANNING, dissenting: On January 16, 1975, the Regional Director for Region 19 directed an election be held on February a The Marley Company, 131 NLRB 866 (1961 ); Rembrandt Lamp Corpora- tion, 128 NLRB 905, 908 ( 1960). 13, 1975, in the appropriate unit of the Employer's employees. The Board's grant of review and decision on review have now delayed the election over 4 months. My colleagues, contrary to the Regional Di- rector, have concluded that the Employer's 91 laid- off employees have no reasonable expectancy of re- call in the foreseeable future and are therefore ineli- gible to vote. I find that there is substantial evidence supporting the Regional Director's finding, and I would not have granted review. The Employer's past growth, its maintaining of a recall list, the seasonal nature of the Employer's business, and the absence of any total phaseout of any plant operation all sup- port the Regional Director's conclusion. Unlike the majority, I am unwilling to assume, in deciding this case, that this country's economic recovery will be so long in coming that it must be found that laid-off employees, such as those involved here, have no rea- sonable expectation of being recalled. Furthermore, in the circumstances of this case, I believe the majority is ignoring an opportunity to render a more informed decision. The petition in this case was filed on November 11, 1974, and the hear- ing commenced on December 16, 1974. Some of the 91 employees were laid off in October 1974, but most were not laid off until November 8, 1974. Now, be- cause of the delay occasioned by the Board's deci- sion-making process, it is over 6 months since com- mencement of the hearing and over 4 months past the original election date. Rather than accept the Employer's dire and conclusory economic pre- dictions made in December 1974, so soon after the unprecedented layoff, I would, at least, allow the 91 laid-off employees to vote subject to challenge and thereafter have the Regional Director examine the Employer's current economic status. This procedure would insure a more accurate determination of the reemployment prospects of the 91 laid-off employees. I do not suggest that it is always possible or even desirable for the Board to reopen the record in order to obtain more up-to-date evidence on an issue in dispute. However, in this case, where so much turns on what I would characterize as the predictions and speculation of the Employer as to its future business, I think it proper to reexamine at the time of the elec- tion the Employer's economic situation to discover whether its economic predictions are coming true. On the evidence before me, I would not disenfran- chise the 91 laid-off employees, and I dissent from the majority's decision to do so.