B.H.L. Manufacturing, Inc.

B.H.L. MANUFACTURING, INC. 17 B.H.L. Manufacturing, Inc. and Industrial Union, Upon the entire record,' together with my careful ob- Allied Industrial Workers of America, AFL- servation of the demeanor of the witnesses as they testi- CIO. Case 25-CA-11155 fied, and after consideration of the post-hearing briefs submitted, I hereby make the following: October 19, 1981 FINDINGS AND CONCLUSIONS DECISION AND ORDER I. JURISDICTION BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Respondent, an Indiana corporation, has maintained its principal office and place of business at Fort Wayne, In- On June 15, 1981, Administrative Law Judge diana, and has been at all times material engaged at said Claude R. Wolfe issued the attached Decision in location in the manufacture, sale, and distribution of toys this proceeding, finding that the Respondent had and related products. During the 12 months preceding is- not violated the Act, and dismissing the complaint suance of the complaint, a representative period, Re- in its entirety. Thereafter, the General Counsel spondent, in the course and conduct of its business oper- filed exceptions and a supporting brief, and the Re- ations, purchased, transferred, and delivered to its Fort spondent filed limited cross-exceptions and a sup- Wayne facility, goods and materials valued in excess of $50,000 directly from points located outside the State of porting brief, and a motion to correct certain cleri- Indiana. Respondent is now, and has been at all times cal errors in its answering brief.' material herein, an employer engaged in commerce Pursuant to the provisions of Section 3(b) of the within the meaning of Section 2(6) and (7) of the Act. National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- II. THE LABOR ORGANIZATION thority in this proceeding to a three-member panel. The Union is a labor organization within the meaning The National Labor Relations Board has consid- of Section 2(5) of the Act. ered the record and the attached Decision in light of the exceptions, cross-exceptions, and briefs and III. SUPERVISORY STRUCTURE has decided to affirm the rulings, findings, and con- At all times material herein, the following-named per- clusions 2 of the Administrative Law Judge and to sons occupied positions set opposite their respective adopt his recommended Order. names and have been, and are now, agents of Respond- ent, acting on its behalf, and are supervisors within the ORDER meaning of Section 2(11) of the Act: Pursuant to Section 10(c) of the National Labor Norman Meyers Executive Vice President Relations Act, as amended, the National Labor Re- Cornell Etoll Shop Superintendent lations Board adopts as its Order the recommended Robert Neff II Foreman Order of the Administrative Law Judge and Fred Robinson Shop Superintendent from hereby orders that the complaint be, and it hereby on or about January 2, 1979, is, dismissed in its entirety. to the present i In the absence of opposition to Respondent's motion, we hereby IV. ALLEGED UNFAIR LABOR PRACTICES grant such motion and make the requested clerical corrections in all copies of its answering brief. The complaint alleges the following as unlawfully re- ' Member Jenkins does not rely on Wright Line, a Division of Wright fused recall: Line, Inc., 251 NLRB 1083 (1981), for the principle that the General Counsel has the burden of proving a prima facie case; that principle was established generations before Wright Line. Selena Arrington Willie Larry Linda Cartwright Debra Lewis DECISION Pam Falls Karen Lunde Rose Gase Maria Mauricio STATEMENT OF THE CASE Kristin Gennari Rita Mercer Diane Hall Karen Miller CLAUDE R. WOLFE, Administrative Law Judge: This Anne Headen Janice Minick case was heard before me in Fort Wayne, Indiana, on Mildred Jackson Cynthia Murphy January 12 and 13, 1981, pursuant to charges filed on Darlene Jaggers Joette Nicole July 24, 1979. A complaint issued August 22, 1979, and Maxine Johnson Brenda Parnin was subsequently amended on February 12 and 15, 1980. Olgia Johnson Benita Perez As amended the complaint alleges that 28 employees Karen Keesler Olivia Perez were refused recall from layoff status on or about May 7, Karen Kieper Sheri Robbins 1979, because of their union activities, all in violation of Leona Laird Tina Underwood Section 8(aX3) and (1) of the Act. There is no allegation or evidence of any other violations of the Act. Errors in the transcript are noted and corrected. 259 NLRB No. 3 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By mailgram of November 17, 1978, the Union advised Olgia Johnson Brenda Parnin Respondent the following were members of its organiz- Karen Keesler Olivia Perez ing committee: Karen Kieper Sheri Robbins Leona Laird Tina Underwood Selena Arrington Leona Laird Pamela Falls Willie Larry Of these 20, the General Counsel seeks backpay, and Maxine Johnson Debra Lewis presumably reinstatement, for 18 of them, leaving out Rose Gase Karen Lunde Darlene Jaggers and Karen Kieper. Kristin Gennari Rita Mercer The parties stipulated that 23 employees were laid off Diane Hall Karen Miller on November 27, 1978, of whom 8 were organizing com- Ann Headen Cynthia Murphy mittee members. Mildred Jackson Brenda Parnin After the November layoffs and discharges, a Board Darlene Jaggers Olivia Perez election was conducted on December 8, 1978, among Olgia Johnson Janet Ramos Respondent's employees, pursuant to an October 31, Karen Kieper Sheri Robbins 1978, election petition filed by the Union in Case 25- RC-7033. The Union lost 62 to 28, with 3 challenged Tina Underwood ballots. Thereafter, on December 15, 1978, Respondent laid off all of its remaining employees. About 2 weeks before the December 8, 1978, election On or about January 2, 1979, Respondent recalled in Case 25-RC-7033, the Union issued a pamphlet con- three of the employees laid off the previous November. taining all the above names as members of its organizing They were Committee Members Karen Miller and Kris- committee plus Linda Cartwright, Karen Keesler, Maria tin Gennari, together with Ann Wormbly who was not Mauricio, Janice Minick, Joette Nicole, Michael Payton, on the committee. By January 4, 1979, Respondent had and Berita (Benita) Perez. recalled 53 rank-and-file employees, of whom 9s were At the hearing, the General Counsel withdrew the al- committee members. The plant again shut down on Janu- legation with respect to Diane Hall, and the General ary 10, 1979. Counsel and Respondent stipulated that the following In April 1979, Respondent again commenced oper- employees were discharged on or about November 27, ations. By May 5 it had a total of 20 employees. This 1978: rose to 45 employees on May 7, and 77 employees on June 26. During this period only 4 of the 23 employees Shelly Johnson Maria Mauricio laid off the previous November reappear on the payroll.7 Sheri Gaff Marjorie Bellinger Moreover, of the 77 employees on June 26, 1979, only 34 Linda Cartwright Benita Perez were employed by Respondent at the time of the De- Tina Blair Maxine Johnson cember and January shutdowns. The plant again shut Jeanette Nicola2 Cynthia Murphy down on or about July 1, 1980, and was not in operation Martin Klug Connie Gibson at the time of the hearing. Rose Gase Of the 20 alleged discriminatees remaining, Respond- ent presented uncontroverted testimony from Vice Presi- Of the 30 person organizing committee listed by the dent Norman Meyers that Selena Arrington, Karen Union in its mailgram and pamphlet, only Michael Kieper, Debra Lewis,' and Karen Lunde quit their em- Payton and Janet Ramos were not alleged as discrimina- ployment with Respondent and Sheri Robbins either quit tees. The record is silent as to what happened to Payton or was terminated.' The list of possible discriminatees but his name does not appear on the various lists in evi- thus diminishes to 15. It shrinks to 14 by virtue of dence, and I conclude he did not work in January 1979 Meyers' credible uncontroverted testimony that Darlene or later. The General Counsel attempted to adduce, but Jaggers was not recalled in May 1979 because of her atti- failed to do so, that Ramos had defected from the Union. tude, attendance, workmanship, and a refusal to sign a 3- Of the remaining 28 committeemen, the allegation as to day suspension notice given her by Respondent. Karen Diane Hall was withdrawn, and 73 were terminated in Miller went in to work on the second shift January 2, November 1978, more than 6 months prior to the filing 1979, but was sent home along with others after 4 hours of the charge,4 which leaves 20 committee members as because there was a problem with the heating system. alleged discriminatees: ' Karen Miller, Kristin Gennari, Ann Headen, Pamela Falls, Janice Selena Arrington Willie Larry Minik, Mildred Jackson, Karen Lunde, and Darlene Jaggers. Pamela Falls Debra Lewis I Olivia Perez, Leona Laird, Kristin Gennari, Olgia Johnson, Janet Kristin Gennari Karen Lunde Ramos, Karen Keesler, Tina Underwood, Karen Miller, and Willie ~~~~~~~~Ann Headen Rita MercerLarry. Ann Headen Rita Mercer 7 Ann Wormbly, Helen Brock. Diane Heistand, and Theresa Price. Mildred Jackson Karen Miller s I note that Debra Lewis' personnel file bore the notation "quit." Darlene Jaggers Janice Minick ' I credit Meyers, noting that no adverse inference may be properly drawn from his failure to proffer supporting documentation into evidence 'I conclude that Joetta Nicol and Jeanette Nicola are the same person. because Respondent's personnel files relating to the discriminatees were 'Cartwright, Nicole, Gase, Mauricio, Benita Perez, Maxine Johnson. present at the hearing, made available to the General Counsel, and some and Cynthia Murphy. were utilized by the General Counsel in his examination of witnesses as 'January 24, 1979, is the statutory limitations date in this case. the record clearly shows. I must conclude the General Counsel found nothing in the records to contradict Meyers. B.H.L. MANUFACTURING, INC. 19 She was told to listen to the radio to find out if the heat Fort Wayne, Indiana, and worked for Respondent the problem was solved. Her supervisor, Bob Neff, called following January. She denies any conversation with her on January 4 and asked her if she was returning to Folk about her return to the east or her availability for work or preferred staying on layoff. She told Neff she employment. I credit Gennari that she went to Massa- would stay on layoff. At the hearing, she asserted her chusetts over the Christmas holiday, but I do not credit reason for not returning was an inability to work the her assertion that she never talked to Folk about return- second shift because she had two children at home. ing east or her availability for employment. Folk im- There is no showing she communicated this to Neff or pressed me as a certain witness on this point and his tes- ever again contacted Respondent to advise it that she timony on his January conversation with Gennari is be- was available for work until she was recalled in August lievable and credited. That Gennari may not have fol- 1979 pursuant to the commencement of the action before lowed through on her intention to return to Massachu- me. In the circumstances I am persuaded that Respond- setts permanently does not mean she did not have that ent had no obligation to try to recall her in May 1979, intention in January when she talked to Folk. before any charge was filed, or to even believe she was Tina Underwood credibly testified she was not re- again available for employment. called in May 1979. Meyers states Underwood was a There is no evidence on the reasons for not recalling good employee and he was told that someone at Re- Mildred Jackson, Rita Mercer, or Brenda Parnin in May spondent's facility had tried to recall her. Meyers thus 1979. has only hearsay information as to whether or not an With respect to Janice Minick, Meyers credibly testi- effort was made to recall her. fled that she did mediocre work, which gains some sup- Meyers testified Olivia Perez was not recalled because port from a timestudy of October 20, 1978, which notes of her attendance and inability to get along with other she was too slow for the work she was performing and employees. Perez agrees her attendance was poor. Folk looked around too much. credibly named four employees who had complained According to Meyers, he instructed someone to recall about Perez and avers Perez had trouble getting along Leona Laird in May 1979, and he believes efforts were with other employees. made to contact her by phone. This is not overly strong The reasons given by Respondent for not recalling evidence, but it is all the evidence presented on the some few of the alleged discriminatees are not entirely matter. Meyers did not appear to be dissembling and I free from question, but this provides no support for the am persuaded some effort was made to recall Laird. General Counsel's case. Meyers testified that Karen Keesler was not recalled This case is singularly free from any evidence of un- in May because she was not one of the best employees lawful motivation. All that Respondent did, to express its Respondent had. This opinion was neither proved nor attitude on the Union so far as the record shows, was to disproved by the evidence. issue a letter from Meyers to all employees on November Meyers testified Pamela Falls was not recalled in May 28, 1978,10 which contains nothing of an interfering, re- because her work performance was inadequate. An Octo- straining, or coercive nature, and certainly no threat of ber 1978 timestudy shows her work was slow. Falls' rec- reprisal or force or promise of benefit. The letter clearly ollections were vague and unreliable. She did not im- falls within the ambit of Section 8(c) of the Act and is press me as a witness whose memories should be cred- not probative evidence supporting the General Counsel's ited in view of their fragmentary, inconsistent, and selec- case. tive nature. In addition to the total absence of any direct evidence Meyer asserts Olgia Johnson was not recalled in May of unlawful motivation, the timing of Respondent's fail- because she gave false information to Respondent with ure to recall some 5 months after the Union had lost the regard to the events leading to Cynthia Murphy's termi- election by a more than two-to-one margin, and 4 nation in November 1978. Johnson was recalled in Janu- months after Respondent had indeed called back known ary 1979. Johnson does not deny giving the false infor- union adherents, suggests no plot to retaliate against mation in regard to Murphy. those employees for past union activities. Moreover, Willie Larry conceded her absence record was poor there is no showing of any continuing union activity and she had been twice warned about it. She also asserts after the December 1978 election. she was told in February 1979 she would not be called Contrary to the General Counsel, Great Dane Trail- back because her wages had been garnisheed. Meyers ers" is not applicable to the facts before me. The 28 pos- testified she was not called back because of her attend- sible discriminatees whom the General Counsel alleged ance and inability to perform the work. in the complaint and in his opening statement dwindled, Ann Headen had never worked on the Etch-A-Sketch by way of stipulations and credible uncontroverted testi- line and Meyers testified that experience on that line was mony, to a very charitable 14. Of the remaining 14, Re- a prerequisite for recall in May. spondent had reason to believe Miller and Gennari were Kristen Gennari was offered second-shift employment, not interested in recall, made an effort to recall Laird, which she declined, when she was laid off in November and may have tried to recall Underwood. The 28 has 1978. Kenneth Folk testified that she told him in January now shrunk to 11 at most, and perhaps to 10. Why the 1979 that she would not be available for recall because General Counsel yet persists in a Great Dane theory I do she was returning to the east coast. Gennari is a native of Massachusetts and states she returned to Massachusetts '°G.C. Exh. 15. over the 1978 Christmas holiday but then returned to "NLR.B. v. Great Dane Trailers. Inc.,. 388 U.S. 26 (1967) 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not know, but I find that the General Counsel has not recall sprang from a motive to discourage union activity. shown any employer conduct "so inherently destructive The General Counsel has not so shown, and nothing of employee interests" that proof of motivation is unnec- brought forth at the hearing can be maneuvered into the essary. There is no showing that Respondent distin- vaguest semblance of a prima facie case requiring rebuttal guished between employees to be recalled on the basis of by Respondent. their union activities,' 2 and there is no reason in law or logic on the evidence before me to conclude that Re- CONCLUSIONS OF LAW spondent's conduct on its face is prima facie unlawful, or I. Respondent is an employer engaged in commerce that employee rights have been adversely affected. within the meaning of the Act. Leaving Great Dane and turning to Wright Line,' 3 I 2. The Union is a labor organization within the mean- find and conclude the General Counsel has not made a ing of the Act. prima facie showing sufficient even to support an infer- 3. The General Counsel has not established by a pre- ence that protected conduct was a motivating factor in ponderance of the evidence that Respondent has violated selection for recall. Consequently, Respondent has no the Act as alleged in the complaint or in any other burden of justifying those selections. That it has chosen manner. to do so, and in most cases clearly has, serves only to Upon the foregoing findings of fact and conclusions of emphasize the weakness of the General Counsel's case. law, and pursuant to Section 10(c) of the Act, I make the What the General Counsel appears to be urging is that following recommended: unless Respondent comes forth with totally unassailable reasons for failing to recall each laid- off committee ORDER 4 member, voila! unlawful motivation is clear. Not so at all. Respondent is under no obligation to justify its conduct unless and until the General Counsel shows by direct or circumstantial evidence that Respondent's failure to 14 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 '' There was no reason in May 1979 for Respondent to do so. The in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Union was gone and no longer a matter of concern. become its findings, conclusions, and Order, and all objections thereto 13 Wright Line. a Division of Wright Line. Inc., 251 NLRB 1083 (1980). shall be deemed waived for all purposes.