Bali Blinds Midwest

1 BALI BLINDS MIDWEST Bali Blinds Midwest, a Marathon Carey-McFall Company, a Division of Marathon Manufactur- ing Company and Local 590, International As- sociation of Bridge, Structural and Ornamental Iron Workers Case 13-CA-25783 January 5, 1988 DECISION AND ORDER By MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On August 25, 1986, Administrative Law Judge Claude R Wolfe issued the attached decision The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed 1 The General Counsel has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra tive law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re versing the findings 2 We agree with the judge s ultimate conclusion that the discharge of employee Marshall Spires did not violate Sec 8(a)(3) and (1) of the Act Contrary to the judge we find that the General Counsel made a prima facie showing sufficient to support an inference that protected conduct was a motivating factor in the Respondents decision The Board has noted that in assessing whether a prima facie case has been presented shifting the burden of persuasion to the Respondent a judge must view the General Counsels evidence in isolation apart from a respondents proffered defense See Hillside Bus Corp 262 NLRB 1254 (1982) Here the General Counsel established inter alia that Spires on returning to work on the morning after the March 18 1986 walkout was discharged for being 1 minute late The circumstances create a prima facie showing from which it could be inferred that Spires protected ac tivities were a motivating factor in the decision to discharge Under Wright Line 251 NLRB 1083 (1980) enfd NLRB v Wright Line 662 F 2d 899 (1st Cir 1981) approved in NLRB v Transportation Management Corp 462 U S 393 (1983) the burden then shifted to the Respondent to demonstrate that the same action would have been taken even in the absence of the protected conduct The Respondent did so In recommending dismissal of the allegation regarding Spires the judge found that the Respondent established that Spires was a probationary em ployee and that the discharge was in accord with Respondents estab lished practice We agree In so doing we find that the Respondent in rebuttal demonstrated that the discharge would have taken place even in the absence of Spires protected activities Alan Hellman Esq for the General Counsel John H Smither Esq, for Bali Blinds Midwest Donald J Urbauer, District Representative for Local 590 DECISION 243 CLAUDE R WOLFE, Administrative Law Judge This proceeding was litigated before me at Chicago Illinois, on 24 and 25 June 1986 pursuant to charges timely filed by Local 590, International Association of Bridge, Struc tural, and Ornamental Iron Workers (the Union) and complaint issued on 13 May 1986 The complaint alleges that Bali Blinds Midwest (Respondent) has violated Sec tion 8(a)(3) and (1) of the National Labor Relations Act (the Act) by laying off employees because they engaged in a strike and by discharging James Mitchell and Mar shall Spires It is further alleged that employees engaged in an unfair labor practice strike on 19 March 1986 Re spondent denies the foregoing allegations On the entire record, including the testimonial de meanor of the witnesses appearing before me, and after considering the posttrial briefs submitted by the parties I make the following FINDINGS AND CONCLUSIONS I THE BUSINESS OF RESPONDENT Respondent is a corporation with an office and place of business in Naperville, Illinois, where it is engaged in the manufacture of contemporary window coverings During the calendar year preceding the issuance of the complaint, Respondent, in the course and conduct of these business operations purchased and received at its Naperville Illinois facility products goods and materials valued in excess of $50 000 directly from points outside the State of Illinois, and is now and has been at all times material an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act II LABOR ORGANIZATION The Union is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES1 The Board certified the Union as the representative of all Respondents full time and regular part time produc tion and maintenance employees on 15 October 1985 2 Thereafter the parties commenced bargaining and bar gained regularly 2 days every 2 or 3 weeks through May 1 The facts set forth here are derived from the credited aspects of the testimony of the witnesses the exhibits comparative testimonial demean or and consideration of the logical consistency and inherent probability of the facts found Although I may not in the course of this decision discuss every bit of relevant record testimony or documentary evidence it has been weighed and considered To the extent that evidence not mentioned here might appear to contradict my factfindings that evidence has not been disregarded but has been rejected as incredible lacking in probative worth surplusage or irrelevant 2 All full time and regular part time production and maintenance em ployees including truckdrivers and production clerks employed by the Employer at his facility currently located at 6 South 005 Frontenac Road Naperville Illinois excluding all office clerical employees admin istrative employees sales employees temporary employees managerial employees and guards and supervisors as defined in the Act constitute the unit found appropriate by the Board for purposes of collective bar gaining 292 NLRB No 14 244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1986 There is no evidence or allegation that any of the bargaining was not in good faith To the contrary, it ap pears the bargaining relationship between the parties has been remarkably amicable During the later stages of the bargaining prior to 18 March 1986 union members com menced pressing for a strike This pressure was resisted by the Union s district representative Donald Urbauer until 4 March3 when Urbauer held a regular meeting with the employees Prior to this meeting the Respond ent s representative had indicated at some point during negotiations that there might be some question regarding the Union s continuing majority status This assertion by Respondent combined with the continuing pressure of the unit members resulted in a union decision , approved by Urbauer that the employees would strike for 1 day if no progress was made in the next set of negotiations that were scheduled for 17 and 18 March There was little movement during the 17 March negotiations The Union therefore determined to strike the following day Re spondent was given no warning that there was going to be a strike on 18 March On the morning of 18 March all but two employees struck Employees simply did not go to work Some picketed the plant from about 5 30 a in until about 8 30 a in when they concluded their picket ing and left the Respondent s premises There was no further picketing The striking employees returned to work on 19 March After the picketing employees had left the plant premises, Urbauer and members of the Union s bargaining committee proceeded to the place where negotiations were usually held with the intention of bargaining on that day Finding no representatives of Respondent at that location, Urbauer discovered they had gone to the plant Accordingly, the union committee proceeded to the plant, arriving about 11 o clock After they arrived Urbauer had a discussion with the Re spondent s attorney John Smither who was also the Re spondent s chief negotiator They agreed that new nego tiation meetings would be scheduled within the next few days Urbauer testified that he told Smither that the strike was over employees would return to work on the morning of 19 March and Respondent should not retali ate against the employees for striking Urbauer specifical ly denies saying that unless a negotiation meeting was set for the following week he did not know if employees would return to work on 19 March Smither avers that Urbauer told him that unless Urbauer could tell the em ployees there would be a meeting the following week he could not guarantee they would work on 19 March Daniel Perkins a member of the Union s bargaining team testified that Urbauer told Smither the employees would return to work the next day but Perkins conced ed that his pretrial affidavit dated 26 March relates that Urbauer asked Smithers for a guarantee of no reprisals against probationary employees and those in disciplinary trouble who had struck, and said if he got such assurance he could have the employees back to work on 19 March Careful consideration of the relevant testimony of these three witnesses all of whom appeared to be testify mg in accord with their best recollections persuades me that their differences are primarily due to the fact their 8 All dates are 1986 unless otherwise indicated individual understandings of what in fact happened during the conversation between Urbauer and Smither are based on views from different perspectives much like the fabled blind men and the elephant or witnesses to an auto accident No one is lying Each witness is merely testifying to what he perceived to be the case What probably happened I believe is that Urbauer, in the course of pressing for future meeting dates and assur ances of no reprisals against employees either expressly or impliedly conveyed the message that a 19 March return to work was not certain unless Respondent grant ed his requests Even though such a message may not have been intended, I credit Smither that he understood Urbauer was conditioning the return to work on securing prompt meeting dates This condition was met when Smither agreed to prompt scheduling of bargaining meet ings It necessarily follows that the Respondent should reasonably have expected that the employees would be back to work the following morning Respondent did not, however, receive any assurances that similar strikes would not recur during negotiations Respondent produces custom blinds which must be produced and delivered within 7 days of the customer s order This leaves about 5 days for actual manufacture of the ordered items Respondent manufactures the same product at other plants in Pennsylvania New Jersey, and Connecticut All product lines at Naperville except verti cal blinds can be moved to these other plants On 18 March, Respondent maintained some production with nonunit employees and the two unit employees who did not strike William Rapp Respondents vice president of manufacturing and engineering was in town for the ne gotiations and took charge at the struck plant in the ab sence of the plant s operations manager who was on va cation Rapp called Jim Shilling Respondents president on the morning of 18 March and advised him of the strike According to Rapp s uncontroverted testimony he was concerned that the 18 March strike without prior notice might be repeated In the absence of assurances the em ployees would only strike the 1 day and not go out again at a later date Rapp asserts that he simply could not take a chance that production would not again be disrupted and cause an inability to produce Respondents products within the normal 5 day time or to meet its delivery date promises to customers, which would result in lost sales by Respondent When Rapp next talked to Shilling about 2 30 p in , after the meeting between Smither and Urbauer various employer options were discussed with no conclusion reached About 5 or 6 p in Shilling and Rapp again dis cussed the matter They decided to move orders to other of Respondents locations, and to lay off employees until a reasonably dependable base work force of current em ployees replacements and salaried and office employees was established That day, 18 March Rapp moved the work orders on production not yet commenced to Re spondent s other locations The following day 19 March Rapp moved some of the orders on work in progress to other locations, scrapping any work in process at Naper ville that was thereby affected I am persuaded that these BALI BLINDS MIDWEST various moves by Respondent, as well as the layoffs, were temporary expedients to deal with the possibility of repeated work stoppages and were reasonably designed to prevail until bargaining was completed On the evening of 18 March, Rapp compiled a list of positions he considered to be required to sustain produc tion of 200 blinds a day On the morning of 19 March, after the striking employees returned to work, Rapp se lected the employees to be laid off by product line, clas sification, and seniority There is no contention or evi dence that the selection was discriminatory I therefore find it was not Rapp testified that notwithstanding the return of employees, he still feared the work force was unstable and therefore continued with the reduction of the work force to a point where he could replace em ployees hire other employees, or work salaried employ ees in order to sustain a 200 blind a day production On 19 March, the work force was pared from 49 to 25 or 26 On the morning of 19 March, the Employers distnbu tion of layoff notices to the employees selected for layoff coincided with another walkout of employees caused by the discharge of Marshall Spires Spires had not come in to work on 18 March because he saw his coworkers picketing, but there is no evidence from which to con clude or to even vaguely infer that his discharge was caused by his failure to work on 18 March When Spires went in at 7 01 am on 19 March, a minute after his scheduled reporting time, Chris Curtis an alleged and admitted statutory supervisor stopped him and asked how much he was late When he replied he was 1 minute late Curtis told him to go to work Curtis then proceed ed to Rapp s office with Spires timecard, and told Rapp that Spires was tardy and had been talked to Rapp asked for Spire s personnel folder He claims that he thought Spires absence record was terrible for a probationary employee, and therefore directed Curtis to terminate Spires Curtis returned to Spires work station and told him that he was fired for absenteeism Spires told other employees that he was fired and the word quickly passed through the work force Several employees quit work and walked out because Spires was fired The dis charge was clearly the precipitating reason for the walk out and there is no persuasive evidence of any other un derlying reason 4 The walkout caused some confusion because employees were getting their layoff notices during the first few minutes of this walkout The notices had been previously prepared and there is no reason to believe that the employees were laid off because of this work stoppage Those employees who were not laid off returned to work the following morning on 20 March Steve Holt and Mike Gray workers in the vertical blind operation, who had been replaced while they were out, were put on layoff status on 20 March I agree with the General Counsel that the 19 March walkout over Spires discharge was protected concerted activity but the law is plain that the replacement of employees involved in such action before they return to work is lawful Ac cordingly, I conclude and find Holt and Gray were 4 The General Counsels contention that the 19 March work stoppage was caused by Respondent s decision to lay off and discharge a substan tial part of the bargaining unit has no evidentiary basis and is rejected 245 properly replaced and no violation of the Act is in volved Spires was a probationary employee Even though he testified that he knew of no 60 day probationary period I credit Respondent s witnesses that in fact there was such a probationary period and that Spires was so ad vised on hire by Supervisor Lawrence Toney 5 This rule is not in writing but this is no reason to discount the credible testimony that it exists After the first 30 days of the 60 day period, an employee is evaluated for produc Lion If he or she is meeting the production standard, as Spires was, he or she remains on probation for the re mainder of the 60 day period During this probationary period the employee may be terminated for absenteeism if he or she accumulates two or more occurrences of ab senteeism An unexcused absence is counted as one oc currence, as is an instance of tardiness of more than 15 minutes Tardiness less than 15 minutes is counted as one half an occurrence Spires had one of each for a total of two and one half occurrences when he was dis missed He and other probationary employees had been told by Operations Manager Johnson during the week of 11 March that as probationary employees they were bound by stricter attendance rules than regular employ ees are It seems draconian to discharge an individual for being late 1 minute but the discharge is in accord with Respondents established practice and there is no persua sive evidence the rules were applied disparately Not withstanding the understandable view that the final inci dent leading to Spires discharge was in itself somewhat trivial it cannot fairly be said that the Employer is re quired to bend his rules in favor of any employee no matter how good an employee he might otherwise be nor is there any warrant in this case for the substitution of the General Counsel s business judgment or mine for that of Respondent I am persuaded that the General Counsel has not made out a prima facie case that Spires was discharged because of any protected union or con certed activity, and Respondents asserted cause has not been shown to be clearly spurious Accordingly I find that the General Counsel has not established by a pre ponderance of the evidence that Spires was unlawfully discharged Moreover because the walkout of 19 March was caused by the discharge of Spires which I have found to have been perfectly lawful, I further find that the 19 March work stoppage was not an unfair labor practice strike James Mitchell had a very poor attendance record in 1985 and 1986 eventually resulting in a 3 day suspension covering 13, 14, and 17 March 1986 because he had ac cumulated six incidents of absence or tardiness As Mitchell acknowledges the 3 day suspension means that an employee then goes on 30 day probation because of his absenteeism Against this background Mitchell, who was supposed to return to work on 18 March returned to work on 19 March at 7 am Mitchell was not one of those who either picketed on 18 March or refused to go in to work because the other employees were striking 5 Spires denial that he was advised of the 60 day probationary period is not credited 246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD When he entered the workplace he gave a hospital form to his department supervisor, Lawrence Toney When their testimony conflicts with respect to the content of the conversations between them I credit Toney who was much more impressive in terms of apparent forthright ness and just plain believability Moreover I think that Toney s version is more probable than that of Mitchell whose explanation of the problems with the form is not at all convincing When Mitchell presented the form to Toney it contained no indication whether or when Mitchell was to return to work The date of the form had been altered from 17 March to 18 March or vice versa It appears to me that the date was changed from 17 to 18 March It is Mitchell s contention that he was in the emergency room at the Mercy Hospital in Aurora Illinois, for 3 hours on 18 March and that the nurse erro neously dated the hospital form that he presented to Toney but that she corrected it at his instance and wrote her name below it to certify the correction Toney credi bly testified that he was suspicious of the date alteration and the failure to indicate when Mitchell could return to work, but found the explanation of the alteration accept able According to Mitchell, Toney merely told him he would have to get a new form from the hospital the fol lowing day because there was no return to work date on it Toney asserts that when he asked Mitchell to get a corrected form Mitchell said that that was all Toney was going to get and refused to get another one I credit Toney noting that Mitchell s testimony that when Per sonnel Administrator Carol Bryan asked him what his problem was he told her his medical record was his own business indicates that he is something less than compli ant with reasonable requests Mitchell concedes that Toney did tell him that the hospital slip that he present ed as an excuse did not wash and was no good and that Toney so told him when he was fired However this matter is resolved and I am inclined to resolve it in favor of Toney s testimony that the gentleman was simply fired for a failure to present an adequate excuse for his absence, it seems to me that the allegation of un lawful discharge must fail because there is no reason whatsoever in this record to show that the absence policy was discriminatorily applied to Mitchell He plain ly had a poor attendance record for which he had been previously disciplined had just come off suspension was on probation and was not cooperative when asked to get a new form from the hospital This issue with regard to Mitchell can be aptly summed up in a few words The General Counsel has not constructed a prima facie case and the Respondent although not required to do so in the absence of a prima facie showing of violation has shown cause for terminating Mitchell that is not trans parently pretextual The law has not been violated by Mitchell s discharge Returning to the layoff of approximately 17 employees on 19 March pursuant to the Respondents asserted plan to temporarily reduce the work force to a stable base that would enable the Company to continue production and delivery in the event of a repeat of the 18 March strike the layoffs were clearly precipitated by the 18 March strike I therefore find that the General Counsel has set forth a prima facie case that the employees were laid off because of their protected activity of striking This conclusion is not affected by Respondents method of selection for layoff because although it was nondis criminatory the selection was completely among people who had been on strike In short it was just a question of which striker to lay off not whether to lay off strikers or other employees Notwithstanding these conclusions I further conclude for the following reasons that Respond ent has successfully rebutted the General Counsel s prima facie case Respondent asserts, and I agree, that the 19 March layoff was a lawful partial lockout in anticipation of a possible repetition of the 18 March strike The General Counsel contends that Respondent must have known the Union had no intention to engage in sporadic or quick ie strikes because it was not in the Union s interest to so act that negotiations might again be put in jeopardy This is pure speculation What Respondent knew as a con crete fact was that the Union had without prior warning conducted a strike on 18 March that had disrupted pro duction and made the timely delivery of orders question able at best Respondent also knew it had been given no guarantee against repetition of the strike With these facts at hand it was not at all unreasonable in the circum stances for Respondent to fear recurring strikes and to take steps to minimize the adverse effects on its business that a rejection of the strike would have As the Board explained in Darling & Co ,6 the Supreme Court in Amer ican Ship Building v NLRB 7 set forth the following test of a lockouts legality assuming no motive to discourage union activity or to evade bargaining is the lockout in herently so prejudicial to union interests and so devoid of significant economic justification that no specific evi dence of intent is required? There is no evidence Respondents action was designed to undermine the Union or evade bargaining Respondent has shown legiti mate and substantial business justification sufficient to demonstrate its actions were not devoid of significant economic justification The Board recently held in Harter Equipment 8 that the use of temporary employees during an otherwise lawful lockout has a comparatively slight adverse effect on employee rights and is prima facie lawful where the employer comes forward with evidence of legitimate and substantial business justifica tion The temporary layoff of employees strikes me as little different in terms of adverse effect on employee rights than their temporary replacement as in Harter and I therefore conclude that effect is in this case com paratively slight Summing up, there is (1) no unlawful motivation, (2) only a comparatively slight adverse effect on employee rights and (3) significant economic justifi cation i e a reasonable fear of recurring strikes that would disrupt its production and delivery schedules to the extent Respondent would face a serious loss of cus tomers for Respondents actions of transferring work to its other plants and engaging in a partial lockout Re 6 171 NLRB 801 802 (1968) 7380US 300 311 (1965) 8 280 NLRB 597 (1986) BALI BLINDS MIDWEST spondent s action in laying off its employees on 19 March 1986 did not violate the Act 9 For the reasons set forth hereinabove the complaint should be dismissed I therefore issue the following rec ommended 10 e Cf Laclede Gas Co 187 NLRB 243 (1970) and Laclede Gas Co Y NLRB 421 F 2d 610 (8th Cir 1970) There was an impasse in negotia pons in Laclede but this does not render Laclede inapplicable because the mere presence or absence of impasse does not determine the lawfulness of a lockout Darling & Co 171 NLRB 801 (1968) setting aside sub nom Lane v NLRB 418 F 2d 1208 (D C Cir 1969) 247 ORDER It is ordered that the complaint in this case is dis missed ° If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses