Foam Fabricators Of Minnesota, Inc.

FOAM FABRICATORS 5-11 Foam Fabricators of Minnesota, Inc. and District No. 165, International Association of Machin- ists and Aerospace Workers, AFL-CIO, Peti- tioner. Case 18-RC-13521 14 December 1984 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER The National Labor Relations Board, by a three- member panel, has considered a determinative chal- lenge in an election held 5 December 1983 and the hearing officer's report recommending disposition of it. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows eight for and eight against the Petitioner, with one challenged ballot. - The Board has reviewed the record in light of the exceptions, has adopted the hearing officer's findings and recommendations only to the extent consistent herewith, and finds that a certification of results of election should be issued (hearing offi- cer's report is attached). We find, contrary to the hearing officer, that as of the date of the election Wendell Ross did not have a reasonable expectan- cy of recall in the near future. Accordingly, we uphold the challenge to Ross' ballot. The Employer is a fabricator of synthetic foam products and employs approximately 18 workers at its facility in Maple Lake, Minnesota. Its business in the past 8 years has followed a fairly regular pattern. Until October 1983 the Employer never laid off any of its employees. As a result of expan- sion in May 1983 1 the Employer opened a premold department to produce packaging foam molds fab- ricated from isocyanate foam. Wendell Ross was hired on 9 May to help staff the new premold department. When hired Ross was told that he would be worked into other de- partments if premold work was low. In fact, he did work in various other departments of the Employ- er from time to time. In early October the Company learned that its premold purchase order 'contract from Central Container Corporation was terminating and that no further orders from this major customer would be forthcoming. The Employer's president, Richard Somers, testified that upon learning this he decided a reduction in the work force of the premold de- partment was necessary and that the reduction should be accomplished by laying off the least 'Unless otherwise indicated, all dates herein are in the calendar year 1983' senior full-time employee:2 -On 13 October Somers explained the business situation to Ross. Somers told him that one part-time employee had less se- niority and that Ross could take that position if he wanted to. Ross declined the offer. Somers then handed him a memo, of which the first paragraph read: We are experiencing a noticeable reduction in the volume of new orders. Unfortunately this necessitates a reduction in our work force. Your employment date . . . places you lowest in seniority in our work force. Therefore we are compelled to lay you off at this time. It is not possible to forecast the duration of this layoff. At the time of Ross' layoff some premold work remained unfinished. This was completed by two other employees in early November. The record indicates that the only information Ross received regarding the possible duration of his layoff was the notice itself. Between 13 October and 5 December, the date of the election, there was no further contact between Ross and the Com- pany. In mid-November the Company's sales represent- ative Mark Somers was enthusiastic regarding a po- tential new premold contract from a large custom- er. President Somers' testimony indicated that if the contract had been approved the Company might have reopened the premold department in February 1984 at the earliest. 3 It is clear from the record that at no time was the news of this poten- tial contract communicated by the Company to Ross. Nor was Ross contacted at any time to see if he would be interested in returning to work in February. Although there may have been an initial enthusiastic report concerning this potential cus- tomer, there is nothing to indicate that the Compa- ny took any further action other than waiting to see if its bid was going to be accepted. As of 9 De- cember it knew that,its bid would not be accepted. It is well established that the entitlement of laid- off employees to vote in a representation election depends on whether such employees have a reason- able expectancy of recall in the near future. The determination of this expectancy in turn depends on objective factors including the past experience of the employer, the employer's future plans, and 2 Since the Employer had never laid anyone off before this was its first application of seniority This potential contract was at best a hopeful expectation on the part of the Company Q Did he [the sales representative] have any firm commitments from whatever the customer—potential customer—was, for the work9 A No Only a conversation No purchase order or anything else. 273 NLRB No. 80 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the circumstances of the layoff, including what-em- ployees were told as, to, the likelihood of recal1.4 The appropriate time frame when determining ex- pectancy of recall is the situation as it existed at the time of the election rather than subsequent devel- opments.5 When the employer has had a past history of layoffs and recalls it is somewhat easier to deter- mine exactly what would be a reasonable expectan- cy of reemployment in the near future. If the busi- ness pattern follows a cyclical or seasonal term and employees who are laid off are usually rehired, the prediction can be made with some accuracy.6 However, here it is clear that the Employer has had no pat history of layoffs and -recall. The record indicates that the Employer's business has been more or less stable for the past 8 years. The recently created premold department was a busi- ness venture based on anticipated purchase orders requiring prembld foam. Ross was informed that the department was new before he was hired. In fact the premold department was not operational until he was hired by the Employer. When the major purchase order to supply foam fabricated in the premold department was canceled Somers de- cided to complete the remaining small orders and close the department. Thus, for the first time in 8 years the Employer - made a decision to lay off one of its employees. AlthOugh Ross was informed when hired that the Company had never laid off any employees there was no way for the Company to foresee that it would lose its major purchase order for the product Ross was being hired to produce. There was also no way for the Company to accurately predict whether it would again reopen the premold department. Absent any employer past experience or future plans, where an employee is given no estimate as to the duration of the layoff or any specific indication as to when, if at all, he will be recalled there is no reasonable expectancy. Vague statements by the employer as to the "chance" or "possibility" of the employee being rehired do not provide an adequate basis for concluding that the employee had a rea- sonable expectancy of reemployment.. Tomadur, Inc., supra. Here, the Employer's hope that it could reopen the premold department was never dis- closed to Ross. He was informed only that it was not possible to forecast the duration of the layoff. We find that such a statement, without more, does not give rise to a reasonable expectancy of recall. 4 Precision Tumbling Co, 252 NLRB 1014 (1980), High Energy Corp, 259 NLRB 747 (1981) 5 Tomadur, Inc , 196 NLRB 706 (1972) 6 Atlas Metal Spinning Go, 266 NLRB 180 (1983) The statement by the Employer, that it was:"com- pelled to lay [Ross] off at this time," is nothing more than a vague implication that Ross may even- tually be recalled and 'is insufficient to give rise to a reasonable expectation of recall in the near future. CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that at a majority - of the valid ballots have not been cast for District No. 165, International Association of Machinists and Aero- space Workers, AFL-CIO and that it is not the ex- clusive representative of these bargaining unit em- ployees. MEMBER ZIMMERMAN, dissenting": Contrary to my collegues I find that there was a reasonable expectancy at the time of the election that laid-off employee Wendell Ross would be re- called in the near future. AccOrdingly, I would affirm the hearing officer's recommendation that the challenge to the, ballot of Wendell Ross be overruled. My colleagues' arrival at the contrary result flows from a distorted application of prece- dent. It is well settled, as my colleagues do not dis- pute, that a reasonable expectancy of recall in the near future entitles an employee on layoff to vote in a representation election. The existence of such an expectancy is evaluated on the basis of several objective factors, only one of which is given any effect by the Majority. As the Board recently held in Atlas Metal Spinning Co.„266 NLRB 180 (1983), "the objective factors which the Board employs to determine whether an employee possesses such an expectancy include the employees past experience, the employer's future plans, the circumstances of the layoff, and what the employee was told about the likelihood of recall" (emphasis, added). Application of these criteria to the instant case leads easily to the conclusion that at the time of the election Ross had a reasonable 'expectancy of recall in the near future. Nothing in the Company's past experience indicated that Ross' layoff would be particularly long or permanent. The Employer had never before laid off even a single employee in 8 years of operation prior, to October 1983. Indeed, as recently as May 1983, the Employer had actual- ly expanded its operations.' Therefore, the Em- ployer's statement to Ross that "we are compelled to lay you off at this time" (emphasis added) is an Thus, contrary to my colleagues' assertion that there is an "[absence ofj any employer past experience," the record establishes that the Em- ployer has a past experience of no layoffs within the last 8 years as well as a recent expansion of operations FOAM FABRICATORS 513 indication that the anticipated duration of the layoff would not be particulaily long, and was rea- sonably likely to last only until the Employer's volume of new order . increased. The Employer's next statement, "It is not possible to forecast the duration of this layoff," is no more than a simple statement of fact which in no way portends a long or short layoff;' thus, unlike the preceding state- ment, it cannot be considered an objective indica- tion of how long or short Ross' layoff would be.2 The test for determining expectancy of recall in the near future is based on the situation as it existed at the time of the election, rather than on subse- quent developments. 3 Here, at the time of the elec- tion of 5 December 1983, the Employer's top man- agement was "very enthusiastic"—and had been so since mid-November—about 'a potential contract which would necessitate the reestablishment of Ross' department. Award of that contract to the Employer would enable the recall of Ross (whom the Employer considered a good employee) about 2 months later. 4 On 9 December, .4 days after the election, the Employer's .expectations of increased business were defeated. But the fact remains -that, at the time of the election, there was a reasonable expectancy that as a result of- the anticipated con- tract Ross would be recalled in the near future. That the anticipated contract was eventually lost in normal bidding, does not' post 'facto undermine the reasonableness of the Employees expectations during the contract bidding period. My colleagues hinge their decision solely on what Ross was told at the time of his layoff. They state -that if there is no "estimate as to the duration of the layoff. or any. specific indication as to when, if at all, he will be recalled," there is no reasonable expectancy that an employee will be recalled. This absolute statement ignores the Board's longstanding practice of considering 'Other applicable criteria in such cases. My colleague 's also distort Board prece- dent by using a subjective analysis based on em- ployee reaction to employer statements rather than the objective test that has consistently been applied by the Board. In so doing they establish that a laid- off employee's eligibility to vote depends solely on what he is told by the employer, rather than on the reasonable prospect that this employee will in the - near future again be part of the work force which is electing whether or not to be represented. My 2 Atlas Metal Spinning Co , 266 NLRB 180 (1983) (failure to provide employee with specific . date on which to expect 'recall not an indication that employee had no reasonable elpectancy of recall in near future) 3 Atlas Metal Spinning Co, supra, High Energy Corp, 259 NLRB 747, 761 (1981), Zatko Metal Products Co, 173 NLRB 27, 33 (1968) • 4 Again, contrary to what my colleagues perceive as an "[absence ofj future plans," the record establishes that the Employer had future plans which if realized would result in the reestablishment of Ross' de- partment, and lead directly to his recall from layoff colleagues' decision - undermines the Act's objec- tives of protecting employee rights to participate in a secret-ballot election. I therefore dissent. APPENDIX HEARING OFFICER'S REPORT AND RECOMMENDATION TO THE BOARD ON CHALLENGED BALLOT Pursuant to a Stipulation For Certification Upon Con- sent Election Executed by the parties an approved by the Acting Regional Director for Region Eighteen of the National Labor Relations Board on November 11, 1983,1 an election by secret ballot was conducted among certain employees of the Employer 2 on December 5. Upon the conclusion of the election a Tally of Ballots was served on the parties in accordance with the Board's Rules and Regulations. The Tally of Ballots disclosed that the chal- lenged ballots were sufficient in number to affect the re- sults of the election. 3 The Acting Regional Director issued and served on the parties on December .12, a Report on Challenged Ballot, Order Directing Hearing on Challenged Ballot and Notice of Hearing. Pursuant thereto, a hearing was held on December 22, before the undersigned Hearing Officer duly designated for the pur- pose of Conducting such, hearing. All parties were repre- sented at -the hearing.and had full opportunity to call, ex- amine and cross-examine witnesses, to introduce evi- dence pertinent to the issues, and to make statements in support of their respective positions. Upon the entire record in this case, and from my care- ful observation of the demeanor and manner of the wit- nesses while testifying under oath, I make the following4 FINDINGS OF FACT AND CONCLUSIONS As part of the Stipulation For Certification Upon Con- sent Election executed by the Employer and the Peti- tioner, the parties incorporated a written and signed eli- gibility list wherein it was agreed that the eligibility list would be final and binding upon the parties pursuant to the doctrine established in Norris-Thermador Corporation, 119 NLRB 1301 (1958) However, by the terms of this eligibility list, the parties expressly reserved . "the right to Unless otherwise indicated, all dates herein are in the calendar year 1983 The appropnate collective bargaining unit to which the parties stipu- lated is defined as All full-time and regular part-time production and maintenance em- ployees employed by the Employer at its Maple Lake, Minnesota fa- cility 3 Approximate number of eligible voters-18 Void ballots--O Vot6 cast for Petitioner-8 .Votes cast against Petitioner-8 Challenged ballots-1 Valid votes counted plus challenged ballots-17 4 In the resolution Of all issues for which the credibility or oral testi- ' mony becomes a factor, I have carefully considered the demeanor and conduct of the witnesses as well as their candor, their objectivity, their bias or their lack thereof and have carefully weighed the witnesses' un- derstanding of the matters to which they testified, the plausibility, con- sistency and probability of their testimony, as well as whether parts of their testimony should be accepted when other parts are rejected. . 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD challenge the voting eligibility (of Wendell Ross) as the employee is on layoff status." During the election conducted on December 5, the Employer challenged the ballot of Wendell Ross, con- tending that he was no longer an employee of the Em- ployer. At the hearing, the Employer maintained this po- sition. The Petitioner's contention has been that Wendell Ross was temporarily laid 'off on October 13 and had a reasonable expectancy of reemployement at the time of the December 5 election. In the course of the December 22 hearing, Richard Somers, President and General Man- ager of Foam Fabricators of Minnesota, Inc. and Wen- dell Ross testified. Wendell Ross was hired by Foam Fabricators of Min- nesota, Inc ; On May 9 to work as a premolder in the Company's newly reestablished premold department, wherein packaging molds are fabricated from isocyanate foam. Prior to the reopening of a premold department in May, the Company had such a department for a three-to- four month period in 1981. The occasion prompting the premold department's recreation in May was the acquisi- tion of a major purchase order from Central Container Corporation; this purchase order comprisded 90-95% of the premold department's work orders. At the time the premold department was reopened, a Company employ- ee, Steve Mooney, was transferred from.the Company's cutting area to work with the newly hired Ross in pre- mold. Additionally, a third employee was occasionally called in to assist Ross and Mooney when further labor was necessary. When the premold department equipment was for some reason inoperative, Ross and Mooney would work in other areas of the Company. Somers tes- tified that Ross was, in fact, capable of working in any department. , Ross' testimony was that he spent approxi- mately 15-20% of the work time in departments other than premold. Ross also testified that at the time he was hired, he specifically asked Plant Superintendent John Provo about the permanency of the premolder position and that he was told 'that he would be worked into other departments if premold work was low. The fact that the Company had never had a layoff was used as an "entice- ment" during the interview, according to Ross. In early October, the Company learned that the pur- chase order from Central Container Corporation was ter- minating and that no further orders from this major cus- tomer would be anticipated. Somers testified that, upon learning this, he ' decided that a reduction in the work- force, i.e., the premold department, was necessary. On October 13, Somers handed to Ross a memo, of which the first paragraph reads: Dear Sir. We are experiencing a noticeable reduction in the volume of new orders. Unfortunately this necessi- tates a reduction in our work force. Your employ- ment date of May 9, 1983, places you lowest in se- niority in our work force. Therefore we are com- pelled to Jay you off at this time. It is not possible to forecast the duration of this lay off.5 5 Somers testified that this had been the only application of. senionty Foam Fabricators' history After receiving this memo and declining the offer of a parttime job at a reduced .pay rate,i Ross punched- out and left the _Company's facility. No conversation as to the nature or duration of the layoff occurred Somers testified that it the time of Ross' layoff, ap- proximately $7200 6 volume of-premold - work remained to be completed, and that Mooney and emPloyee Joan Greninger finished this in early NOvembef. After this, Mooney and Greninger were transferred to full-time- po- sitions .in other departments of the Company. From about November 15-18, 1983, the premold department, staffed with Mooney and .Greninger, completed a small order for another premold account. In mid-November, 1983, Foam Fabricators sales repre- sentative Mark Somers (President Richard Somers' son) returned from Omaha, Nebraska, with what Richard Somers testified. to as a "very enthusiastic" report re- garding a potential contract with Control Data Corpora- tion, which contract would necessitate the reestablish- ment of the premold department in approximately Febru- ary, 1984. 7 Somers further testified that if the premold department were to reopen, he would hire Ross, whom he considers to have been a good employee. Somers' op- timism that this premold contract, for which the Compa- ny had submitted a bid in August or September, would be obtained continued until December 9. Somers testified that Mark Somers learned on December 9 that the Con- trol Data contract bid had fallen through and that he himself was so notified on December 12. The premold department has not been in operation since about No- vember 18, and Somers states that "it's under investiga- tion" whether the lease for the leased premold equip- ment can be broken, in view of the departments' shut- down. Based on the foregoing and the record as a: whole, I conclude that at the time of the representation election Wendell Ross enjoyed an expectancy of recall and that this expectancy was a reasonable one. I rely particularly on the fact that as- of the date of the election, i.e., De- cember 5, it was anticipated that a sizable premold con- tract would be obtained which would result in reinstat- ing both the premold department and according to Somers, Ross as, an employee. "The test for determining the expectancy of recall is the situation as it existed at the time of the election." Atlas Metal Spinning Co., 266 NLRB 180 (1983) (emphasis added), citing Thomas Engine Cor- poration, 196 NLRB 706 (1972). The fact that the Com- pany learned on December 9 that this contract would not be obtained after all is inconclusive as to Ross' voting eligibility. on December 5 Likewise, Somers' tes- timony that there were no prospects for premold orders at the time of the hearing has no bearing on Ross' voting rights at the time the election was conducted. Atlas 6 According to Somers' testimony, the average monthly sales volume from the premold department was $8,018 Somers' testimony that, on the basis of the Control Data report, the premold department might reopen in February 1984 is consistent with an affidavit given to the Board dunng the investigation of Case No 18-CA- 8516, which affifavit was admitted Into evidence at the December 22 hearing herein However, my findings and conclusions are based solely on Somers' testimony at the heanng and were made without reference to or reliance upon this affidavit 'FOAM FABRICATORS 515 MetaItSpinning'Co.,-,above. Further, nothing: in the-Com- pany's past revealed to Ross that his layoff would be permanent; in fact, Ross' uncontradicted testimony indi- cated that the Company's, no-layoff history , was specifi- cally emphasized during Ross', employment _interview. Therefore, Smilers, October 13 memo- to Ross that he was compelled "to lay. you off at this time"'reaSonably created an expectancy . of recall. The' facts, that the dura- tion of the layoff was 'not specifically stated or that the future personnel needs of Foam Fabricators were -still unclear do not negate , the reasonableness of. this expect- ancy. See, e.g., -Atlas _Metal Spinning Co.; above, Jobbers' Supply Inc., 236 NLRB, 112, , 113..(1978); 'enforced, '625 P.2d, 754 (6th Cir. 1980). ,RECOMMENDATION In accordance with the foregOing facts, I recommend that the challenge' to the ballot of Wendell Ross be over- filled, -and that Ross'. ballot be_ opened and counted in order that' a Revised -Tally of' Ballots may be issued - and served on the parties.- I further recommend that if-the Revised-Tally of Bal- lots reveals that the Petitioner has received a majority of the valid votes cast, a ,Certifiation of Representative issue. On the other hand, if the Revised Tally of Ballots reveals that the Petitioner has 'not received a majority of the valid votes cast, it is recommended that a Certifica- tion of Results issue.4 8 As provided in Section , 102 69 of the Rules and Regulations of the National Labor Relations Board, Series 8, amended, within 10 days from the date of Issuance of this Report, any party may file with the Board in Washingion, D C an original and seven. copies of exceptions thereto Im- mediately upon the filing of such exceptions, the party filing same shall serve a copy thereof on- the other parties and shall file a copy with the Regional Director and a statement of service shall be made to the Board simultaneously therewith If no exceptions are filed hereto, the Board will adopt the recommendations of the Hearing Officer -