General Combustion Corp.

GENERAL COMBUSTION CORP. Genco/Hy-Way Division of General Combustion Corporation and International Union of Elec- tronic, Electrical, Salaried, Machine and Furni- ture Workers, AFL-CIO. Case 8-CA-21133 July 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On May 15, 1989, Administrative Law Judge Martin J. Linsky issued the attached decision. The General Counsel filed exceptions and a sup- porting 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' 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 Cit. 1951) We have carefully examined the record and find no basis for re- versing the findings. Nancy Recko, Esq., for the General Counsel. H. A. DiBlasio, Esq. and Matthew Fekete, Esq., of Youngstown, Ohio, for Respondent. Patrick Kearney, Staff Representative of Kettering, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE MARTIN J. LINSKY, Administrative Law Judge. On 21 July 1988 a charge was filed by the International Union of Electronic, Electrical, Salaried, Machine, and Furni- ture Workers, AFL-CIO, against Genco/Hy-Way Divi- sion of General Combustion Corporation (Respondent). On 30 September 1988 the National Labor Relations Board, by the Regional Director for Region 8, issued a complaint, which alleges that Respondent violated Sec- tion 8(a)(1) of the National Labor Relations Act (the Act) on 8 July 1988 when it coercively informed an em- ployee that he should refrain from union activity and created the impression that the employees' union activi- ties were under surveillance and that Respondent, violat- ed Section 8(a)(1) and (3) of the Act also on 8 July 1988 when it laid off four employees because on their activity on behalf of the Union or because they participated in 1103 concerted protected activity. Respondent denies that it violated the Act in anyway. I find for the Respondent. A hearing was held before me on 6 and 7 February 1989 in Youngstown, Ohio. On the entire record in this case, to include posthear- ing briefs submitted by the General Counsel and Re- spondent, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION Respondent Genco/Hy-Way Division of General Combustion Corporation is a Florida corporation with an office and place of business in Youngstown, Ohio, where it is engaged in the manufacture of heat generat- ing and processing devices. Annually, Respondent in the course and conduct of its business, sells and ships from its Youngstown, Ohio facil- ity products, goods, and materials valued in excess of $50,000 directly to points outside the State of Ohio. Respondent admits, and I find, that it is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find , that the International Union of Electronic , Electrical, Salaried, Machine and Furniture Workers, AFL-CIO is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Genco/Hy-Way Division is located In Youngstown, Ohio. Its parent is General Combustion Corporation which is located in Orlando, Florida. Genco/Hy-Way, which I will refer to as Respondent, began operations in early 1987. It specializes in the man- ufacture of hot oil heaters used for asphalt heating in highway construction. General Combustion Corporation has a similar facility in Orlando, Florida. The work is somewhat seasonal . The slow period begins as the summer approaches. The Youngstown facility, which began operations in early 1987, did not have a layoff of employees for lack of work until 8 July 1988. On 8 July 1988 the four discri- minatees, i.e., Robert Burkholder, Ray Carter, Joseph Rios, and Robert Johnson, plus three other employees, were laid off. As of the time of the hearing none of them had been recalled. It is alleged that Respondent violated the Act when it laid off these four men. It laid them off, according to the General Counsel's theory, because of their interest in organizing a union . It is also alleged that Respondent violated the Act on the day of the layoffs in a conversation between Plant Superintendent James Brown and Robert Burkholder, one of the four discri- minatees. Respondent's work force was not represented by a union. In 1986 there was a layoff due to lack of work at the Orlando facility and in June 1988, just weeks before the 295 NLRB No. 128 1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Youngstown layoff, there was another layoff due to lack of work in Orlando. Respondent has no written policy on layoffs but has an oral policy , which is that the best employees are kept on and the "worse" employees are let go. In deciding better and worse, Respondent consid- ers attitude, performance, and workmanship. Seniority played no part in the layoffs at the Orlando facility. Documentary evidence in the nature of financial data was presented by Respondent at the hearing to establish that there was indeed a reduction in the work at the Youngstown facility. The dollar amount of new orders to be filled fell from $700,000 at the end of April 1988 to $300,000 as of the end of June 1988. The dollar amount of the total backlog at the end of April 1988 was $1.2 million but only $632,000 at the end of June 1988. Respondent clearly established a justification for the layoffs. Subsequent to the July 1988 layoff of seven em- ployees-four of whom are discriminatees-there was another layoff of three to five employees in October 1988. A couple of those employees laid off in October 1988 were recalled but none of the employees laid off in July 1988 have been recalled. No new employees were hired to replace the employ- ees laid off in July 1988 or October 1988 with one excep- tion, i.e., a new painter was hired to replace a painter who quit his employ after the July 1988 layoff. A new person was hired because of the need , according to Re- spondent, for an expert painter . None of the employees laid off in July 1988 was an expert painter. David Brashears, the president of General Combustion Corporation, and his superior, Mike Elliott, from Gener- al Combustion Corporation's parent, concluded after re- viewing sales backlog reports that a layoff was necessary at the Youngstown facility. On 5 July 1988 Brashears called John Miller, general manager at Youngstown , and told him that based on the size of the backlog of orders 7 to 10 employees should be laid off. He did not give Miller a firm timeframe in which to make the layoffs. Miller told Brashears that he wanted to wait for James Brown, plant superintendent, who was more familiar with the individual employees, to return from vacation on 8 July 1988 before he did any- thing. Brashears said fine. On 8 July 1988 Brown returned from vacation and Miller told him about Brashears' call and that he should select 7 to 10 employees for layoff. Brashears testified that the policy on layoffs is to keep the best workers and lay off those you can most afford to lose. Brown said that was his understanding of the layoff policy as well. Following his conversation with Miller, Brown met with his two foremen, Orien Ramsey and Ray Hall. The three men met for about an hour and went through a copy of the latest payroll summary sheet which con- tained the names of the 45 employees from whose number the employees selected for layoff would come. They selected seven employees to be laid off. Brown, Ramsey, and Hall credibly testified that in de- ciding who to layoff they did not consider, discuss, or give any weight to any union sympathies or activities of the employees selected for retention or layoff. The word union did not even come up in their discussions. In deciding whether or not an employee has been dis- criminated against in violation of the Act there must be evidence that the employees engaged in union or other protected concerted activity and that the Employer knew about it. All four discriminatees, Robert Burkholder, Ray Cartel, Joseph Rios, and Robert Johnson did engage in union activity and protected concerted activity. Robert Burkholder, as early as the spring of 1987, talked with some of his fellow employees about starting a union . He testified he told Brown about the talk of or- ganizing around the plant and told Brown that he was not in favor of bringing in a union . Burkholder claims that Brown asked Burkholder to tell him the names of those employees interested in starting a union. Burk- holder refused to give him any names . This testimony was introduced to show antiunion animus and is not al- leged as violative of the Act since outside the Section 10(b) period. Brown testified that Youngstown was a strong union town and that he heard rumors from time to time that employees were interested in starting a union. If any employee mentioned it to him and they did from time to time-his stock answer was to the effect that he (Brown) didn't think the employees needed a union but if they wanted to try to organize go ahead and do it. I credit Brown. Burkholder testified there was more talk of a union in late 1987 or early 1988 and in July 1988. He and Robert Johnson discussed whether the employees should join the Steelworkers or the IUE (charging party in this case). Burkholder said he thought the employees should vote on what union to bring in to represent them. Burk- holder and Johnson asked fellow employee Joe Monoski if he wanted to be a union officer . He agreed. I note that Joe Monoski was not laid off. On 8 July 1988-the day of the layoff-Burkholder says he spoke to Brown and told Brown that he (Burk- holder) was in favor of bringing in a union. He claims Brown asked him who else wanted to bring in a union. According to Burkholder, he was told by Brown to stay out of the Union and that he (Brown) knew of employ- ees who were not in favor of unionization . If I credit Burkholder's testimony about this conversation, then Brown's remarks constitute an implied threat in violation of Section 8(axl) and also would create in Burkholder's mind that the union activity of the employees was under surveillance by management which is also violative of Section 8(a)(1) of the Act. However, I don't credit Burk- holder. I credit Brown who admits that Burkholder did come to him on 8 July-he isn't sure if it was before or after Burkholder and the others were selected for layoff but thinks it was afterwards-and told him that employ- ees were interested in starting a union and he (Burk- holder) was asked to be an officer but they weren't sure which union they wanted to join . Brown said that he didn't think they needed a union but they could do what they felt they had to do. Since I credit Brown's version of this conversation, I conclude that the Act was not vio- lated. Ray Carter discussed forming a union with several fellow employees in June 1988. The other employees he GENERAL COMBUSTION CORP. discussed this matter with included three of the discri- minatees, Burkholder, Rios, and Johnson and two other employees, Joe Wilson and Joe Monoski . Wilson was not laid off in July but was laid off in October 1988 but later recalled. Monoski was never laid off. On a couple of other occasions Carter talked about the union with Robert Johnson. There is no direct evidence that the Re- spondent was aware of Carter's minimal union activity. Joseph Rios talked about starting a union with Robert Johnson in March 1988. He thereafter spoke about the union with a fellow employee named Emery but he couldn't remember Emery's full name. He also spoke with Joe Wilson about the union . There was no direct evidence that Respondent knew of Rios' union activity. Robert Johnson talked about bringing in a union with fellow employees in March or April 1988. Johnson spoke with Brown at one time because he heard from Joe Wilson (who was not a witness) that Brown had asked Wilson if Johnson was starting a union organizing effort. On this occasion Johnson told Brown that he was satis- fied without a union. According to Johnson, Brown's re- sponse was that it didn 't matter to him if the employees wanted to be organized or not. Just prior to the 8 July layoff Johnson discussed bringing in a union with five other employees, i.e., the other three alleged discrimina- tees, Burkholder, Carter, and Rios, and two other em- ployees, Joe Monoski and Al James. Neither Monoski nor James were laid-off. All discussions about the union referred to above took place at work. Brown admitted he heard about union talk among the employees from time to time and the work force was small-only 45 employees-and it ap- pears likely, based on the inference one can draw from "the small plant doctrine," that Respondent was aware that all four alleged discriminatees had shown some in- terest in forming a union . Coral Gables Convalescent Home, 234 NLRB 1198 (1978). As noted above Superintendent Brown and Foremen Ramsey and Hall selected seven employees to be laid off. Brown thereafter discussed who was to be laid off with General Manager John Miller and President David Bra- shears and Miller and Brashears concurred in the judg- ment of Brown , Ramsey, and Hall. There was no evidence that three of the persons se- lected for layoff, i.e., Brian Bizub, Charles Cycyk, and Michael Rotunno, were, in any way, involved in union activity but there was evidence that three other employ- ees, Joe Monoski, Joe Wilson, and Al James were in- volved in union activity and were not laid off. Burkholder, Carter, Rios, and Johnson did not have bad work records . But there is no evidence that persons with worse records were not selected for layoff with one possible exception, i.e., Thomas Gordon . Gordon, prior to the July layoff, had a tardiness problem . He was not laid off and because his tardiness problem continued he 1105 received a written writeup for it some 12 days after the 8 July 1988 lay off. Prior to the layoff Burkholder had been verbally repri- manded for poor work and tardiness . In addition, he had received a written writeup for returning from lunch with alcohol on his breath or his very first day on the job. Carter's record was better than Burkholder's record but his foreman, Ray Hall, referred to him as only a "fair" worker. Rios had a pretty good work record, however, he admits he had once threatened to hit his foreman, Orien Ramsey, when they got into an argument at work. Rios looked several years younger and more physically fit to me at the hearing than Ramsey did. Johnson's record was also pretty good except that he had a reputation for being somewhat dissatisfied with whatever his current job was and was noted for saying he wanted to transfer jobs. Brown, Ramsey, and Hall selected the seven employ- ers for layoff-to include the four alleged discrimina- tees-based on workmanship , attitude, performance, and absenteeism . In doing so they obviously considered how these employees compared with their fellow employees in the particulars above noted. In the absence of evi- dence that other employees not selected for layoff were worse than those selected for layoff and in light of the fact that I credit Brown, Ramsey, and Hall that union sympathy or activity played no part in the selection process, I conclude that the four alleged discriminatees were not laid off in violation of Section 8(a)(1) and (3) of the Act. I note here that I credit also the testimony of John Miller and David Brashears. CONCLUSIONS OF LAW 1. Genco/Hy-Way Division of General Combustion Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electronic, Electrical, Sala- ried, Machine and Furniture Workers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the Complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The complaint is dismissed in its entirety. ' 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.