Alpo Pet Foods

National Labor Relations Board - Board Decisions

Mar 20, 1996

320 N.L.R.B. 956 (N.L.R.B. 1996)

956
320 NLRB No. 101
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 reversing the findings.
2 We have added the notification language that the judge inadvert-
ently omitted.
1 Jurisdiction and the status of the Union as a labor organization
are admitted.
2 Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973).
3 It is stipulated that Kirpsak is a supervisor within the meaning
of the Act.
Alpo Pet Foods, Inc. and/or Friskies Pet Care, a Di-
vision of the Nestle Food Company and Oil,
Chemical and Atomic Workers International
Union, AFL–CIO. Case 6–CA–26669
March 20, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On October 13, 1995, Administrative Law Judge
William F. Jacobs issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the General Counsel filed an answering brief in oppo-
sition to the Respondent’s exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, Alpo
Pet Foods, Inc. and/or Friskies Pet Care, a Division of
the Nestle Food Company, Weirton, West Virginia, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
Insert the following as paragraph 2(d).
‘‘(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.’’
Sandra Beck Levine, Esq., for the General Counsel.
Steven R. Wall, Esq. (Morgan, Lewis & Backius), of Phila-
delphia, Pennsylvania, for the Respondent.
Larry G. Abel, Esq., of Johnson City, Tennessee, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. This case
was tried before me on March 14 and 15, 1995, in Weirton,
West Virginia. The Oil, Chemical and Atomic Workers Inter-
national Union, AFL–CIO (OCAW) (the Union) filed the
original charge on September 6, 1994, the first amended
charge on October 25, 1994, and the second amended charge
on March 8, 1995. A complaint issued October 31, 1994, and
was amended on March 8, 1995. The amended complaint al-
leges that Alpo Pet Foods, Inc. and/or Friskies Pet Care, a
Division of the Nestle Food Company (Respondent, Com-
pany or Employer) violated Section 8(a)(1) and (3) of the
Act by laying off employees David Gamble, Earl Franklin
Speerhas, and Mark Hager; by recalling Hager to a position
that was not substantially equivalent to his prior position; by
subcontracting work previously performed by Gamble,
Speerhas, and Hager; and by engaging in the conduct de-
scribed because the named employees supported or assisted
the Union and engaged in concerted activities, and to dis-
courage employees from engaging in these activities. The
Respondent denies the commission of any unfair labor prac-
tices.
All parties were represented at the hearing and were af-
forded full opportunity to be heard and to present evidence
and argument. On the entire record, my observation of the
demeanor of the witnesses, and after giving due consider-
ation to the briefs, I make the following
FINDINGS OF FACT1
I. SUCCESSORSHIP
Respondent Friskies purchased the assets of Alpo Pet
Foods, Inc. in December 1994, and continues to operate the
Weirton, West Virginia facility without any significant
change in plant management, operations, or plant personnel.
Respondent Nestle was aware that an unfair labor practice
complaint had been issued in this matter at the time of the
purchase of the assets of Alpo Pet Foods, Inc., but has con-
tinued to operate the Weirton facility despite knowledge of
the existence of the unfair labor practice complaint.
As Respondent admits that before the purchase it had been
put on notice of its potential liability in the instant case, and
has continued operation of the employing entity with notice
of Respondent Alpo’s potential liability to remedy its unfair
labor practices, Respondent Nestle is a successor to Respond-
ent Alpo and its potential liability.2
II. BACKGROUND
A. Plant Construction and Expansion
Respondent Alpo is a Pennsylvania corporation with an of-
fice and place of business in Weirton, West Virginia, where
it is engaged in the manufacture and distribution of cans.
Vincent Kirpsak is the general manager of the Weirton facil-
ity and has held that office since 1985.3
When Kirpsak was hired, he was placed in charge of set-
ting up the new plant. His responsibility included the phys-
ical layout, the placement, and installation of the various
pieces of equipment and the building of a wall to separate
957ALPO PET FOODS
4 It is stipulated that Vanyo is a supervisor within the meaning of
the Act.
5 Kirpsak testified that this sum represented gross costs.
Alpo from Weirton Steel that occupied part of the premises.
Some of the equipment was newly purchased, some was
moved from the Company’s facility in Allentown, Pennsyl-
vania, and some was already in Weirton. The initial setting
up of the plant took approximately 30 months, beginning in
September 1985.
As the plant gradually came into being, Respondent’s
complement of hourly employees grew. Kirpsak hired four
employees in July 1985. This number increased to between
50 and 54 by the spring of 1987, then to between 55 and
65 by the end of that year. Initially there was only one main-
tenance employee, but this number increased to four, includ-
ing the plant electrician by the latter part of 1987.
In 1987 Respondent made a decision to enter into the busi-
ness of manufacturing cat food. This was actually undertaken
in early 1989. It was decided, however, first to let the market
determine what the sales would probably be, before investing
capital in the can manufacturing end of the business. The
Company, therefore, initially contracted to have the contain-
ers for the cat food made on the outside.
Once it was established that the Company was going to
obtain a substantial part of the market, it was clear that the
Weirton facility should be expanded to enable it to produce
its own cans for the cat food line. This decision was also
made in early 1989.
Once the expansion plan was decided on, it was deter-
mined that it would take about 4 years and would include
the physical removal of a solid wall allowing for the acquisi-
tion of additional floor space from 89,000 to 104,000 square
feet. The floor then had to be leveled to permit the equip-
ment on it to be level. Trusses had to be built and wiring
installed underground.
The plan provided for the relocation of the shearing line
and other equipment during the first phase of expansion; the
purchase and installation of a coating line where the original
equipment had been located during the second phase; then,
the installation of the newly acquired full panel easy-open
system for the production of cat food cans; and finally the
purchase and installation of two new ovens and the refurbish-
ing and repair of a third, used oven.
When it was initially determined to undertake the expan-
sion of the plant, it was recognized that a large amount of
labor would be required to accomplish the job. It was de-
cided, at that time, that as much of the work as possible
should be done by Respondent’s own employees. To that
end, Respondent increased the complement of its mainte-
nance department in 1989 and 1990 from four to eight em-
ployees. These seven maintenance employees and their su-
pervisor physically moved and relocated the equipment as
necessary, refurbished and repaired the used oven, physically
installed the new easy-open line to the extent the mainte-
nance employees were capable, and did whatever was nec-
essary to accomplish the planned expansion of the plant.
Rearrangements in the plant were not limited to the pro-
duction area. New offices for the electrician and supervisors,
a quality control laboratory and restrooms were built as well.
Most of the work, the laying of the block and plumbing were
contracted out as a package but Respondent’s maintenance
employees were used as much as possible, to keep costs at
a minimum. They laid the ceramic tile work on the floor, in-
stalled cabinets in the quality control room, and did whatever
they were physically capable of doing. This work was per-
formed in late 1991 and early 1992. Company records reflect
that the cost of maintenance outsourcing in 1991 was
$107,700 and in 1992 was $100,705.
In the fall of 1992, in contemplation of the new easy-open
line coming into production, Respondent began hiring addi-
tional employees. The complement of employees would
eventually rise to 76 by the beginning of 1993 and stay at
that level into 1994. The 76 would include 14 production
employees for the new line itself, plus additional support
people. The plan was to hire new people and train them for
entry level positions while giving present employees the op-
portunity to move up to higher paying skill level positions.
The total complement of 76 employees included 7 mainte-
nance people by the time the new line came into production
in early summer 1993.
In 1993 also, Respondent’s expansion program was com-
pleted. Its maintenance outsourcing for that year decreased to
$89,075.
B. Respondent’s Financial Situation
The Weirton Alpo facility operates pursuant to a business
plan or budget based on a fiscal year that runs from October
1 to September 30. The planning process for the forthcoming
fiscal year begins in early April with the receipt of an esti-
mated sales forecast provided by Respondent’s sales staff.
From the sales forecast, Kirpsak and his staff determine the
amount and type of production required. This information is
considered in terms of equipment capacity that in turn is con-
sidered in terms of the number of shifts required and staffing
levels.
In September 1993, there was a restructuring of Respond-
ent at the corporate level resulting in a change in the chain
of command. Kirpsak, who had previously worked for Vice
President of Manufacturing Chester Beavers, was henceforth
required to report to Director of Corporate Engineering Ed
Vanyo.4 Vanyo, located at corporate headquarters in Allen-
town, Pennsylvania, was assigned the responsibility for di-
recting the Weirton plant. As a result of the restructuring,
Kirpsak had to deal with Vanyo concerning budgetary mat-
ters.
After Vanyo’s appointment, Kirpsak had several conversa-
tions with him concerning budgetary matters. They became
aware in early November 1993 that there was a significant
shortfall in actual requirements of production because initial
sales forecasts had been too optimistic. The scheduled over-
production was expected to impact poorly on the operating
costs of the plant. There were also inefficiencies endemic to
the Weirton facility. On November 3, Vanyo advised Kirpsak
by E-Mail that the forecasted shortfall amounted to
$382,000.5 He requested Kirpsak to provide an action plan
to get back in line with plan costs. He noted that this would
just be a necessary first step as the Company would be look-
ing to reduce costs even further as the year progressed.
Vanyo requested Kirpsak’s action plan by November 5.
Kirpsak complied though a little late.
On November 10, 1993, Kirpsak supplied Vanyo with the
requested action plan. The plan consisted of a number of
suggested adjustments designed to cut costs by $373,000.
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Volume/mix refers to how the material flows through the plant.
The savings were to be accomplished by decreasing the number of
changeovers while increasing the length of runs and increasing the
level of inventory.
7 Actual layoffs were cut to 1 week for each of four employees
because a number of employees volunteered to take their vacations
during the layoff period.
One suggested adjustment involved the shutting down of the
plant completely for three 5-day periods to save $98,000.
The second suggested adjustment involved a savings in en-
ergy costs designed to save $25,000. The third suggestion in-
volved an increase in the sale of shearing time (production
time) to outside companies designed to earn $45,000. These
suggested steps plus changes in the volume/mix6 in produc-
tion valued at $205,000 would equate to the $373,000 total
savings as calculated in Kirpsak’s action plan.
Kirpsak’s action plan was apparently approved but was
never effectuated. As Kirpsak testified, ‘‘My predictions
weren’t any better than our salespeople’s.’’ When asked why
his plan was not successfully implemented, Kirpsak named
several factors. First of all, he explained that the winter of
1993–1994 was extremely severe. Two production days were
lost due directly to terribly inclement weather, a production
day equaling three shifts. Another production day was lost,
due indirectly to the weather, when the Company was told
by either the gas company or the electric company that due
to an energy shortage it would have to shut down voluntarily
or be shut down forcibly.
Another factor that adversely affected the proper imple-
mentation of his action plan according to Kirpsak was the
union organizational drive that was in full swing during this
period. Kirpsak explained that in order to counteract the
Union’s campaign, the Company conducted a number of in-
formational meetings that resulted in a significant amount of
production downtime, for which the employees were, never-
theless, being paid. The total cost to the plant of the union
campaign was approximately $50,000.
Kirpsak testified that the portion of his action plan dealing
with the sale of shearing time also proved unsuccessful in
that he was unable to sell the amount he had originally
hoped. He was only able to sell a quarter of the time initially
planned.
Kirpsak testified that the $25,000 savings through a reduc-
tion in the use of energy never eventuated. His explanation
as to why this part of his action plan failed is not clear ex-
cept that for some reason it was delayed at the corporate
level.
By April, Kirpsak testified, it was clear that his action plan
could not be implemented and that the forecasted $320,000
shortfall could not be completely avoided. Because of the
factors discussed above, the plant was unable to shut down
for a week in February and a week in April as planned.
Rather, the only layoffs that occurred were the result of the
shutting down of one coating line for 3 weeks in late 1993
and the laying off of four employees for that period of time.7
The changes in the volume/mix intended to save $205,000
were never fully implemented because the requirements fluc-
tuated and the way the product was scheduled to flow
through the facility was never instituted in timely fashion.
The $205,000 in savings were, according to Kirpsak, never
realized.
Kirpsak testified that although he considered his action
plan a good one at the time he submitted it on November
10, 1993, he regarded it as a failure by April 1994. Despite
this testimony, however, the record reflects that by April
1994, the actual deficit was only $115,000. Under cross-ex-
amination, Kirpsak appeared to concede that the $115,000
deficit in April reflected some success in reducing the fore-
casted deficit and that additional drastic action would not be
necessary.
Under further cross-examination, Kirpsak conceded that he
had listed certain factors as reasons why his action plan had
not already succeeded in erasing the forecasted deficit. He
then admitted that in April 1994, these factors, i.e., severe
winter weather, energy shortages, and an ongoing union cam-
paign were no longer present. By this line of questioning, the
General Counsel drew forth the implication that with the fac-
tors that had interfered with the total success of Kirpsak’s ac-
tion plan no longer present, there was no reason for Re-
spondent not to continue with the action plan that had been
successful, even despite these factors. When specifically
asked by counsel for the General Counsel why he did not
consider his November 10, 1993 action plan a good one,
Kirpsak replied that the Company was so far in the hole, that
the plan was not going to correct the problem. At the hear-
ing, I found this reply inadequate, as did the General Coun-
sel. Under further cross-examination Kirpsak finally admitted
that Respondent was better off in April 1994 than it had been
the previous November. Despite this admission, however,
Kirpsak testified that by mid-April or early May 1994, he
and the plant comptroller became increasingly aware that the
November action plan was not going to succeed and by June
it was decided something had to be done about it. As of
early June, the deficit was still $115,000 and Kirpsak, in his
testimony, attributed this sum entirely to an overrun in labor
costs, an alleged connection not made all that apparent.
C. The Decision to Lay Off Maintenance Employees
Kirpsak testified that having determined that a new policy
would be necessary to replace or supplement the November
1993 action plan, he gave consideration to numerous possible
alternative plans in addition to reconsidering the ones he had
already tried. He again looked into industry sources to see
if he could sell additional shearing time. He again gave con-
sideration to shutting down the whole facility for periods of
time. According to Kirpsak, although he gave consideration
to a dozen different scenarios that might increase income or
reduce costs, the only one he could find that did not have
drawbacks of one kind or another involved the layoff of
three employees in the maintenance department. Kirpsak tes-
tified that there were no other means available to him to cut
costs.
According to Kirpsak, prior to implementing any decision
to lay off maintenance personnel, he first had to discuss the
matter with the plant engineer, Paul Allamon, who was in
charge of maintenance. He inquired of Allamon sometime
prior to June 28 what the comparative costs would be of con-
tinuing to employ the three maintenance employees as op-
posed to outsourcing their work to local vendors. Allamon
advised Kirpsak that laying off the three maintenance em-
ployees would result in an increase in the cost of mainte-
nance outsourcing of between $12,000 and $18,000 per year.
Kirpsak would eventually use the mid-figure of $15,000 in
959ALPO PET FOODS
his recommended maintenance department reorganization
memorandum.
On June 28, 1994, Kirpsak sent a memorandum to Vanyo
proposing a maintenance department reorganization. In it
Kirpsak stated that the reorganization was necessary to ‘‘en-
sure optimal organization.’’ He explained that between the
years 1990 and 1994 the maintenance shop had been utilized
to a great extent for the projects described supra, including
the site preparation and installation of new equipment. He
pointed out that because the new projects had almost been
completed and because of the experience gained through the
history of maintenance and repair, reduction in the number
of employees in the maintenance department would be pos-
sible and advisable to obtain ‘‘optimal organization.’’
Kirpsak, in this memorandum, then recommended that the
maintenance department be reduced to four employees and
gave justification for the retention of each:
A. Plant Electrician—1
B. Tool and Die—2
C. Machinist—1
Justification for retaining these specific positions:
A. Plant Electrician—highly specialized position, no
one else in department can perform the function as
needed.
B. Tool and Die Positions—both Tool and Die
Workers are more valuable to the department because
they can perform Tool and Die functions and Machinist
functions.
(1) Currently one Tool and Die Worker is 95 percent
occupied with EZO work: (85 percent EZO Tool and
Die, 10 percent general machinist work for EZO, and
5 percent General Plant Machinist work).
(2) The other Tool and Die Worker is occupied 50
percent with Tool and Die for Littell and Sanitary End
Departments. The other 50 percent of his time is spent
on general plant machinist work.
C. Machinist—will handle balance of projects, and
training and support for Mechanic Operators.
The memorandum then noted that the reduced personnel
needs in the maintenance department would result in the lay-
off of two machinists and one machinist electrician with a
saving of $109,913 annually in wages and fringes.
The memorandum noted further that mechanic operators
would be asked to take on more responsibility and upgrade
their skills in the future, presumably to learn to service their
own machines, to partially do the work of the three laid-off
maintenance employees. To reward the mechanic operators
for upgrading their skills, the memorandum stated, they and
their leadpeople would receive a 20-cent-per-hour increase at
an annual cost of approximately $10,816.
Finally, the memorandum announced an anticipated addi-
tional outsourcing of an estimated $15,000 in milling,
lathework, and close tolerance grinding after the proposed
changes. The net savings as a result of the reorganization,
Kirpsak calculated to be $84,097 annually. Kirpsak con-
cluded his memorandum by stating that if Vanyo agreed with
his proposal, the changes would go into effect on Monday,
July 11, 1994.
Kirpsak testified at length with regard to his June 28
memorandum. He stated that the document was his own
work and that he had not been instructed in advance by
Vanyo to produce such a plan. He acknowledged, however,
that prior to June 28, he had been receiving weekly state-
ments containing information on the costs of operating the
plant including labor costs, and that these costs had been the
subject of discussion between Vanyo and himself.
As to why the particular plan described in the June 28
memorandum was chosen rather than some other one,
Kirpsak explained that the $115,000 deficit that existed in
June was due entirely to labor costs implying that if there
were to be savings, they would have to be in the area of
labor costs. Since its inception the plant had been in an ex-
pansion mode and it had never been necessary to perma-
nently lay off any employees.
Kirpsak explained that in 1993 management realized that
it would shortly no longer be in an expansion mode and that
capital investment would be decreasing significantly. At the
same time it was realized, as well, that it was planned to
maintain production at a constant level. As the number of
employees in the maintenance department had been increased
from four to seven for the specific purpose of engaging in
the various expansion projects that were almost completed by
June 1994, there was no longer any reason to maintain the
higher complement of employees in that department. On the
other hand, inasmuch as production was expected to remain
the same, the number of employees engaged in production
would have to remain constant as well. For this reason, it
was determined to seek to save on labor costs within the
maintenance department.
Having once decided that any layoffs decided on would
have to be in the maintenance department, Kirpsak testified
that he next had to determine which classifications of em-
ployees were most indispensable. He concluded that the plant
could not operate without a plant electrician. There had al-
ways been one since the very beginning. The position was
absolutely necessary because all of the equipment in the fa-
cility was electronically controlled, automated, and computer-
ized. Muir, the plant electrician, though the maintenance em-
ployee with the least seniority, had to be retained because he
was the only maintenance employee trained to maintain the
equipment’s computerized controls.
Kirpsak determined that the two tool and die makers also
had to be retained. He testified that David Fernandez, one of
the two, would be responsible for maintaining the dies on the
Littell shearing line and the four prime end presses. This
work would take between 50 and 60 percent of his time. He
further testified that Thompson, the other tool and die maker,
would be responsible for maintaining the tooling in the easy-
open operation. This work would take 90 percent of his time.
Thompson, who had been a tool and die maker prior to being
hired by Respondent, received additional training after being
employed by it.
Kirpsak testified that, when choosing which maintenance
employees to retain, he felt that he could not operate the fa-
cility without the two tool and die positions. He explained
that the tool and die makers were more skilled than the ma-
chinists. Whereas the tool and die makers work on designing,
fabricating, and installing the pieces that form the finished
product and work within tolerances of plus or minus one-half
of one ten thousandth, a machinist must merely be knowl-
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 At another point in his testimony, Kirpsak denied ever actually
making such a request.
9 Policies and Procedures Manual, p. 10. Zagula’s job was not put
up for bid prior to being offered to Hager. This fact, however, did
not affect Gamble’s rights.
edgeable in operating the equipment necessary to manufac-
ture those individual parts, need not work within tolerances
quite as close as those required of the tool and die maker
and has less responsibility for design.
Kirpsak determined to keep one machinist in addition to
the plant electrician and two tool and die makers to round
out the complement of employees in the maintenance depart-
ment. He testified that he felt that the operation required one
machinist to do the general fabrication of parts to replace
worn parts and to produce any newly designed ones. He
noted that management had always identified one machinist
as being necessary and he wanted to bring the staffing level
back to where it was prior to the recent major capital expan-
sion, namely, four people.
Although production facilities had been expanded by the
addition of the easy-open operation, the maintenance depart-
ment could be rolled back to its original complement of four
employees, Kirpsak testified, because Respondent had ex-
pended significant dollars in sending 14 mechanic operators
to the easy-open equipment manufacturer in Chicago for
training over a 2-week period. With this training, the me-
chanic operators of the easy-open line were enabled to keep
the new equipment running. None of the operators allegedly
sent to Chicago for training either testified or was identified.
In addition to the formal training, Kirpsak testified, the
mechanic operators had, by June 1994, become more familiar
with their equipment. By then, they could both run it and
maintain it in a more efficient manner. This experience,
Kirpsak stated, also made it possible for Respondent to re-
duce the number of employees in the maintenance depart-
ment to their original complement.
In light of their special training and additional experience,
Kirpsak felt justified in asking the mechanic operators to as-
sume additional responsibility for maintenance of their equip-
ment. This, he testified at one point, he eventually did.8
Kirpsak testified that at the time he composed his June 28
letter, he was dealing solely with positions, not with individ-
uals. Be that as it may, since Respondent employed only one
plant electrician and only two tool and die makers and
Kirpsak knew he would keep the individuals in those posi-
tions, it would appear that the only question remaining was
which one of the other four maintenance employees would
be retained as the machinist. In any case, Kirpsak testified
that it was only after determining what positions were to be
retained, that he went into the question of which employees
were going to be retained in those positions.
More specifically, Kirpsak testified that after he had com-
posed his June 28 memorandum, he and Vanyo sat down and
discussed it. They then took Kirpsak’s maintenance depart-
ment reorganization proposal to Vanyo’s superior and told
him, ‘‘Here is what we feel we can do to bring our costs
back into line.’’ Kirpsak testified further:
And at that point, when we got approval to proceed
with this, we went to the policy manual and read it, and
read it. And thought about it until we came up with ex-
actly how we were going to proceed with what particu-
lar individual.
Prior to that, it was just jobs. There were no individ-
uals. At this point, when this memo was written, it was
jobs. It was not individuals.
Kirpsak went on to state that when he and Vanyo read the
policy manual they noted that seniority was divided into
plant seniority and departmental seniority with the mainte-
nance department being considered a separate department.
After studying the policy manual and comparing the seniority
of the individual employees, Kirpsak and Vanyo concluded
that Speerhas, and Hager, both machinists and Gamble, a
machinist/electrician were ‘‘on the bubble.’’ Kirpsak ex-
plained that the plant could not operate without the plant
electrician and no one in the maintenance department other
than Muir could perform the duties of the plant electrician.
Similarly, Kirpsak testified that the tool and die makers,
Thompson and Fernandez, had to be retained as necessary to
the operation of the plant because Speerhas, Hager, and
Gamble were incapable of performing the duties required of
a tool and die maker. Artman was the most senior of the ma-
chinists.
In his June 28 letter, Kirpsak had stated that if Vanyo
agreed with his proposal, he intended to make the changes
on July 11, 1994. On that date, in keeping with his letter,
employees Speerhas, Hager, and Gamble were selected for
layoff. As of that date, there were three temporary employees
working in the plant as cap packers. These workers were em-
ployees of an employment agency, not of Respondent. The
employment agency was paid $9 per hour for their services.
These temporary employees had been employed in Respond-
ent’s plant since various times in mid-May 1994 when three
of Respondent’s regular production employees, Barrett, Wil-
son, and Zagula took medical leave due to accident or ill-
ness. According to Respondent’s policies and procedures
manual, the jobs of regular employees on leaves of absence,
including medical leave are secure until they are able to re-
turn to work. For this reason, Respondent did not hire new
employees to take their jobs permanently but chose to fill
those jobs with the employees of the employment agency on
a temporary basis.
Although Barrett, Wilson, and Zagula had not returned to
work from their leaves of absence as of July 11, 1994, em-
ployee Zagula had submitted his resignation. On receipt of
Zagula’s resignation, his job became a permanent opening.
For this reason, when Speerhas, Hager, and Gamble were
told on July 11 that they were going to be laid off, Hager,
the one with the most plantwide seniority, was offered
Zagula’s position and he accepted the offer. Kirpsak ex-
plained accurately that the job was offered to Hager rather
than Gamble or Speerhas because, according to the Policy
and Procedures Manual, ‘‘If there are no qualified bidders in
the plant to fill the job, qualified employees on layoff will
be recalled by plantwide seniority.’’9 Hager lost no time
whereas Gamble and Speerhas were terminated as of July 11
and paid through July 15, 1994. Kirpsak testified that it was
management’s intention to recall Speerhas and/or Gamble if
a permanent vacancy occurred but none were foreseen at the
time.
961ALPO PET FOODS
10 Andrea Buford was, at this time, a stipulated agent of Respond-
ent.
11 I will find, infra, that the elimination of Hager’s job in the
maintenance department and his layoff were violative of the Act.
The complaint alleges that the offer to him of the packer’s job was
a separate and distinct violation. I do not agree. Following his dis-
criminatory layoff, if the packer’s job was the only opening and
Hager was entitled to it, it would have been a violation not to have
offered it to him.
Separate exit interviews were conducted on July 11. Gam-
ble was working the day shift when a supervisor, Ike Webb,
told him that he was wanted in Kirpsak’s office. When he
reported, as instructed, Kirpsak was there along with Andrea
Buford,10 the human relations manager. Kirpsak advised
Gamble that he was being permanently laid off, that it was
not for work reasons or absenteeism but for economic rea-
sons due to a restructuring program. Buford then advised
Gamble of his rights as a laid-off employee. Before Gamble
left the office, he asked Kirpsak if he could use his seniority
to take a less skilled job in the plant. Kirpsak replied that
there was no job in the plant for Gamble. Gamble then re-
turned to his work area and, after picking up some papers,
was escorted from the plant.
Speerhas was the second employee sent to Kirpsak’s office
on July 11. There he found Kirpsak and Buford waiting for
him. Kirpsak told him that due to economic decisions man-
agement was cutting down the size of the shop and he would
be on permanent layoff. Speerhas had worked previously as
a stacker and also as a packer and asked Kirpsak if he could
return to one of those jobs. Kirpsak replied, however, that
there were no openings in those departments. He then told
Speerhas that Buford would go over the insurance, 41Ks, and
other separation paperwork after which he would be escorted
from the plant. Paul Allamon then escorted Speerhas to his
locker. After cleaning out his locker, Speerhas left the plant.
Hager was the third employee sent to Kirpsak’s office on
July 11. Once there, Kirpsak informed Hager that Respond-
ent was eliminating three jobs in the maintenance shop, but
that there was an entry level job open for him as a packer.11
Kirpsak explained that the packer’s job was being offered to
him because he was the most senior, in plant seniority,
among the three laid-off maintenance employees, Gamble,
Speerhas, and himself. He advised Hager that if he chose to
accept the packer’s job, he would lose his departmental
(maintenance) seniority, but keep his plant seniority.
Hager then asked Kirpsak if he could use his seniority to
bump back into his previous job that was press operator.
Kirpsak replied that the handbook did not allow him to do
that. He then mentioned that Speerhas had asked the same
question during his exit interview and that he had told
Speerhas that he could not bump back to his previous depart-
ment either. He then read the relevant part of the rule book
to Hager that prohibited employees from bumping back into
jobs held earlier in other departments.
Kirpsak then told Hager that he could take his toolbox and
his tools home, that they did not have to be checked by any-
one. He said that Hager could bring them back anytime that
he moved up into a position that he might need them. To
Hager, Kirpsak’s remark meant the possibility of his filling
a position in maintenance or as an operator if one opened up.
After their visits to Kirpsak’s office, Speerhas and Hager
returned to their work area and told Fernandez that their jobs
had been eliminated. Fernandez was then called to Kirpsak’s
office. Once there, Fernandez was assured by Buford that he
still had a job and that he had just been called to the office
so that Kirpsak could explain what was going on. Kirpsak
then explained that there was a downsizing going on at all
Alpo plants and that Respondent had to lay off three people
because there were not going to be any more major projects
going on and the Company no longer needed the services of
the three laid-off maintenance employees. He noted that this
was the first permanent layoff at this plant. Fernandez asked
why it was that just the shop, the maintenance department,
got hit and not, for instance, the relief people or the tem-
porary employees. Kirpsak explained that the Company em-
ployed six relief people and had a plan to train one of them
per shift to maybe become stackers so that one of the stack-
ers, on each shift, could train to become operators. As to
having the laid-off employees take the place of the temporary
employees, Kirpsak said, ‘‘If I’ve got to cut somebody’s fin-
gers off, I’d rather do it all at one time rather than a little
at a time’’ meaning, apparently, that if they were given the
jobs of the temporary employees, they would still be laid off
when the employees on sick leave returned. Fernandez then
asked Kirpsak what would happen if work in the mainte-
nance shop began to build up, and the maintenance employ-
ees were backed up; since Hager was still in the plant, would
he be able to come back into the shop (to help out). Kirpsak
replied that if that became necessary, since Hager was al-
ready trained, he would be able to come back in the shop.
Fernandez then testified that he was a person who tended to
be pretty objective but told Kirpsak, at one point during the
discussion, that he knew how the three layoffs would be per-
ceived on the floor, and to him it looked like Kirpsak was
out to get somebody and if Fernandez felt that way, he did
not know how the rest of the plant was going to feel; ‘‘how
this was going to carry over the rest of the day.’’ Kirpsak’s
reply was, ‘‘Dave, believe me, it was nothing personal. It
wasn’t me against anybody. We just had to make some
cuts.’’ He emphasized, at this point, that Alpo, in general,
was making cuts at all its plants and that the way it was
being done at this plant was the least disruptive way of lay-
ing people off as far as efficiency was concerned.
D. The History of the Maintenance Department
One of the first maintenance employees hired for the new
Alpo facility was Bob Reynolds. He did not have a West
Virginia electrician’s license in 1985 but none was required
at the time for an employee to perform the duties assigned
to an industrial electrician. Reynolds, despite not having a
West Virginia license was, nevertheless, skilled in the duties
required of an industrial electrician. In 1985, when the first
line of equipment, a shear line with programmable controls
was installed, Reynolds was capable of operating, maintain-
ing, controlling, and testing this equipment.
Reynolds was made the plant electrician in 1989. By this
time he had between 3 and 5 years’ experience with pro-
grammable controls. He was capable of using micro-
processors and computers to interface and troubleshoot. He
was able to get in and use ICOM language and had experi-
ence with Allen-Bradley language and used that in his work.
In April 1994 Reynolds retired.
In August 1985, Respondent hired Paul Allamon as assist-
ant plant manager. In 1990 he was made plant engineer. By
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 In 1993, the State of West Virginia made it a requirement that
all industrial electricians be licensed.
that time he had had 18 years’ experience working with Re-
spondent, other companies, and on his own as a general con-
tractor. As plant engineer, Allamon was responsible for all
capital projects from their inception, including budgeting,
capitalization, and monthly reporting on the progress of the
projects undertaken. He was also responsible for general
overall plant maintenance other than minor maintenance. As
plant engineer in charge of maintenance he worked side by
side with employees in the maintenance department. As such,
he also had input into personnel matters within the mainte-
nance department.
In or about March 1994, Allamon become aware that Bob
Reynolds intended to retire sometime in April 1994 and that
a replacement had to be found. Allamon knew that the job
of plant electrician would have to be posted and that one of
his responsibilities would be to identify the requirements for
the job to potential bidders. In March, the plant electrician’s
position was posted for bidding. The requirements on the no-
tice included a current electrician’s license12 at a journey-
man’s level, at the minimum, although a master’s level was
preferred. The notice stated that a Pennsylvania or Ohio li-
cense would be considered an equivalent. The second re-
quirement listed was 3 to 5 years’ experience with program-
mable controls, microprocessors, Allen Bradley computer
logic, ICOM program language, and AC/DC drive motors
and controllers. The third requirement was the ability to
diagnose/troubleshoot electrical/electronic equipment. The
fourth requirement was the ability to use analytical instru-
ments as required in the maintenance and repair of equip-
ment such as volt-ohm meters, oscilloscopes, and amp
probes. The fifth requirement was the ability to read and lay
out electrical schematic blueprints.
No employee of Respondent bid on the plant electrician’s
position. Gamble, Respondent’s machinist/electrician, did not
bid, according to Allamon, because he could not meet the re-
quirements. Allamon testified that Gamble did not have a
West Virginia license and could not apply even for a tem-
porary electrician’s license because he could not meet the
necessary requirements to submit an application that in-
cluded:
At least four (4) years of experience in performing
electrical work at the level of the requested temporary
license, and
1. Completed a U.S. Department of Labor/Bureau of
Apprenticeship and Training registered electrical ap-
prenticeship program, or
2. You have completed an electrical vocational edu-
cation program of at least one thousand eighty (1080)
hours in length and approved by the State Board of
Education.
Allamon testified that Gamble was not able to meet the re-
quirements listed on the job posting notice, did not interview
for the job, and did not sign the bid for the job, though the
notice was posted in the plant. He testified further that, listed
requirements aside, Gamble could not do the job required be-
cause all he had was a basic knowledge of electricity and
had only attended vocational training classes in Hancock
County for residential wiring. He had no experience with
computers or programmable controllers, but could only per-
form a very small part of the necessary requirements of the
job. Gamble’s duties as machinist/electrician did include ma-
chinist’s work. He worked, at other times, with the plant
electrician, helping him run conduit or pull wires. If there
was a problem with an electrical circuit such as a motor
burning out, Gamble would replace the motor rather than
make the necessary repairs.
As none of Respondent’s employees bid on the plant elec-
trician’s position, it sought to fill the job with someone from
the outside. Bob Muir was interviewed by Allamon at a time
when he was engaged in residential and industrial electrical
contracting on his own, although he had had prior experience
working for a medical company that packaged medicines
using computer-controlled equipment. Prior to that, Muir had
experience as a mine inspector in Pennsylvania.
Allamon believed that Muir could eventually fill the re-
quirements of the position of plant electrician although at the
time of his interview, he did not yet have a West Virginia
electrician’s license. During the interview, it was decided
that during his probationary period, he was to obtain the re-
quired license. In the meantime, his Pennsylvania mine in-
spector’s license was to be considered an equivalent.
Kirpsak testified that Respondent was most interested in
downsizing and cutting costs in April 1994, but knew that
the plant could not operate without a plant electrician and for
that reason, hired Muir. When it was suggested that he
should have kept Gamble, the machinist/electrician in the
plant electrician’s slot, he objected that despite his title,
Gamble was not qualified to fill the job of plant electrician.
He noted that Gamble had no formal training in industrial
electronics and that he was aware of his performance in the
plant in his position as machinist/electrician and that it was
not adequate for filling the plant electrician’s position. Muir,
on the other hand, Kirpsak testified, had functioned both as
an industrial and residential electrician, owned his own busi-
ness, and had taken and passed the West Virginia elec-
trician’s license test since being hired. He testified that Muir
has all of the qualifications necessary to fulfill the require-
ments for journeyman electrician under the West Virginia
Fire Marshall’s standards. He added that he did not believe
that Gamble has these qualifications.
As of the time of the hearing Muir, according to Allamon,
was working with blueprints both in repair and with the in-
stallation of new equipment. His duties include upgrading
modifications of equipment.
Gamble was called as a witness to testify, among other
things, with regard to the layoff of July 11. He testified that
Muir was the youngest in seniority of any employee in the
maintenance department and that he was hired specifically to
fill the position left vacant in April 1994, with the retirement
of Bob Reynolds. Gamble admitted that the position of plant
electrician had been posted for bidding with the necessary re-
quirements listed. Gamble further admitted that he was
aware, at the time, of the bidding procedure but did not bid
for the job. At no point during his testimony did Gamble
challenge the statements of Kirpsak and Allamon that he was
not capable of performing the duties of plant electrician.
After fully reviewing the record concerning the retirement
of Reynolds and the hiring and retention of Muir in his
place, I find that Gamble was not unlawfully injured thereby.
Muir was qualified as plant electrician, Gamble was not and
963ALPO PET FOODS
13 Subsequently, Artman requested permission to bump back down
to the machinist position. This request was also granted. The record
is unclear as to when this occurred but it is clear that Artman was
again a tool and die maker by 1992.
Respondent was justified in retaining Muir in that position
over Gamble.
Dave Fernandez had more departmental seniority than
Gamble, Hager, or Speerhas and Thompson was hired the
same day as Gamble. Fernandez and Thompson were the two
tool and die makers in the maintenance department.
Allamon testified that the tool and die makers are machin-
ists who have the responsibility of working with tool sets
rather than with just individual tools as do the machinists. A
tool set is an assembly of parts that stamps and fabricates an
item or shears a sheet of metal to a certain tolerance and a
certain profile. A tool and die maker is a more skilled posi-
tion than a machinist, according to the credited testimony of
Allamon.
Thompson had been a machinist before bidding on and
getting the tool and die makers’ job in 1990. With the instal-
lation in March 1992 of the easy-open conversion line, he
became the tool and die maker on that line. Allamon, in his
position as plant engineer, had observed both Gamble and
Thompson perform their particular duties. Based on his per-
sonal observations, Allamon testified that he did not believe
that Gamble could do the tool and die work that Thompson
was doing because he never saw Gamble ever assemble tool
sets, make jigs or setups, or demonstrate that he knew any-
thing about tool and die type work. Kirpsak supported
Allamon’s testimony by noting that Thompson was a quali-
fied tool and die man who got his job by bidding for it and
since establishing himself in that position, had spent 80 per-
cent or more of his time working on a particular piece of
equipment that demands specific skills.
Gamble testified concerning Thompson’s tool and die po-
sition that the job had opened up several years ago when
Thompson was a machinist and he was machinist/electrician.
The opening was posted and Thompson bid on it success-
fully. Gamble did not bid on the job, nor did Speerhas or
Hager. None of these machinists were interviewed for the
job. At no time during his testimony did Gamble dispute
Allamon’s or Kirpsak’s testimony that Gamble had never
performed tool and die type work, had no experience with
it, and therefore could not do Thompson’s job.
Based on the above facts, I conclude that Respondent did
not discriminate against Gamble by choosing to retain
Fernandez and Thompson rather than him.
Once it had been determined that the plant electrician and
two tool and die makers were too valuable to lay off, there
remained just four employees in the maintenance department
as of July 1994, from which to choose the three destined for
layoff. These were machinists Artman, Hager, and Speerhas
and machinist/electrician Gamble. All four performed similar
duties, making parts by using lathes, boring mills, surface
grinders, and presses. There is no contention that any of
these employees were not qualified machinists.
Of the four maintenance employees being considered for
layoff, Artman had the most departmental seniority and along
with six others, the most plant seniority. He therefore kept
his job as machinist and the others were laid off. Once they
were on layoff, however, and a position opened up in the
production department, where their maintenance department
seniority no longer was a factor, plantwide seniority became
the basis for bidding purposes, according to the job bidding
procedure section contained in the policies and procedures
manual. Since Hager had more plantwide seniority than
Gamble or Speerhas, having previously worked in the plant
before transferring to maintenance, he was offered and ac-
cepted the job.
The procedure followed by management in determining to
keep Artman in the maintenance department based on his de-
partmental seniority within that department and offering the
job in the production department to Hager based on his
plantwide seniority closely follows and does not appear to
deviate from the policies and procedures manual.
III. THE UNION ORGANIZATIONAL CAMPAIGNS
A. 1990
David Gamble was hired by Alpo in September 1989 as
a machinist/electrician. In 1990, the Graphic Communica-
tions International Union (GCIU) undertook an organizing
campaign among Respondent’s employees. Gamble partici-
pated in this campaign by distributing union authorization
cards and setting up meetings. He did not hide his prounion
sympathies from management but wore a baseball cap with
the GCIU logo on it and helped with the campaign by dis-
tributing union literature. Gamble was known to Respond-
ent’s management as a supporter of GCIU. The GCIU lost
its 1990 campaign but Gamble continued his employment
with Respondent through 1993 without repercussions.
Charles Artman was another employee who actively cam-
paigned for the GCIU in 1990 and was vocal about his sup-
port for the Union. Although his union activity was well
known to Respondent, he also continued his employment
with Respondent over the next several years. Charles
Artman, it has been noted, was allowed to bid up to a tool
and die maker position at the end of 1990.13 Mark Hager,
though employed by Respondent in 1990, and aware of the
GCIU organizing campaign, did not get involved.
B. 1993–1994
In late November 1993, Gamble contacted the OCAW by
phone to schedule an organizational meeting for the employ-
ees of Respondent. The meeting was scheduled and Gamble
brought several other employees including Hager along with
him to the meeting. After some discussion, petitions were
distributed to the employees to sign and to take back to the
plant to have other employees sign to obtain representation
from the OCAW. Hager was one of the employees who
signed a petition.
After the first meeting that had been held in the union
lodge in Chester, West Virginia, Gamble openly identified
himself as a union supporter by displaying union insignia on
his truck and toolbox. He met with fellow employees before
and after work and during breaks, discussed with them the
earlier campaign, and had them sign one or more of the peti-
tions that he had obtained at the meeting. Hager too had con-
versations with fellow employees about the Union, trying to
get them to sign the petition that Gamble was passing around
on their shift. He also attended a number, if not all, of the
union meetings that followed the initial one, and that were
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Stipulated supervisor and agent of Respondent through May 18,
1994. 15 All dates are in 1994 unless noted otherwise.
organized by Gamble. He did not, however, participate in the
distribution of union literature.
Among the employees that Gamble approached was
Speerhas. He told Speerhas that the OCAW was organizing
and that employees were signing petitions as part of the or-
ganizing drive. Speerhas agreed to sign a petition. Thereafter,
Speerhas joined in the organizing effort, speaking on behalf
of the Union to other employees during breaks and at lunch-
time. He was not, however, one of those who handed out
union literature outside the plant.
At some point early in the organizing effort, Gamble orga-
nized an in-plant committee. He was the chairman of this
committee and although the committee had about 10 employ-
ees in its membership, neither Hager nor Speerhas was
among them. Charles Artman, however, did serve on the
committee and testified that he was active in the 1993–1994
campaign and more vocal in his support for the Union during
that one than he had been during the 1990 campaign.
The members of the in-plant committee, including Gamble
and Artman, handed out literature after work, in the roadway
and in the parking lot, each on his own shift. They held
meetings, composed letters, and communicated information
to the other employees concerning the scheduling of meet-
ings.
Kirpsak testified that he was aware of both Gamble’s and
Hager’s union activity and that Gamble was an outspoken
union leader. He stated, however, that he had no idea, pro
or con, as to Speerhas’ feelings about the Union.
Bruce Polansky, human resources manager14 during the
period of the campaign, testified that he came to know
through conversations with the various employees who were
and who were not strong supporters of the Union. He knew
Gamble’s sympathies also because of his use of union stick-
ers on his lunch pail or toolbox and his handing out of
prounion literature outside the plant.
After the first union meeting, several others followed. Ac-
cording to one witness, Gamble continued to be the most ac-
tive employee in the campaign. This witness described Gam-
ble as the spearhead of the campaign, setting up the meet-
ings, making the necessary contacts between the OCAW and
the employees, continuing to circulate the petitions, and
doing whatever had to be done. Other witnesses confirmed
Gamble’s role as coordinator between Respondent’s employ-
ees and the OCAW.
By December 22, 1993, the Union had a sufficient number
of signatures for a showing of interest and filed a petition
with the Board. About the time the petition was filed with
the Board and, quite likely before, management learned
about the ongoing organizing campaign and brought in a
labor relations consultant. He undertook to educate the super-
visory staff about what they could and could not do during
the campaign, supplied a large amount of antiunion literature
for distribution to the employees, and arranged for the sched-
uling of a number of company-held meetings that eventually
numbered about six.
Separate meetings were held for the different shifts and
stretched out from sometime after the time the Union filed
its petition with the Board up until February 16, 2 days be-
fore the election was held. The format of the company meet-
ings with its employees included an address by a member of
management followed by questions or comments from the
employees present, and brief discussions afterwards.
Antiunion literature was distributed by Respondent between
January 1 and February 16, 1994. From mid-January through
February 16, 1994, the members of the in-plant organizing
committee distributed prounion literature. Some of the
Union’s literature was supplied by representatives of the
International, some by employees of Respondent and signed,
‘‘Concerned employees for a free choice’’ or similar non-
particularized signature. No employee of Respondent signed
a piece of union literature.
Kirpsak testified that he, personally, was against unions
and did not feel that their representation was necessary. He
agreed that his staff had been instructed in how to get that
message across to employees and that this was the purpose
of the captive meetings held on companytime.
At the first such meeting, the production manager or su-
perintendent, Stanley Dulemba, commented as the meeting
was just getting started, that the union organizing effort was
like a knife in his back. The employee who testified concern-
ing Dulemba’s remark was not contradicted and is credited.
Dulemba did not testify.
The record is not replete with information as to the spe-
cific dates of the company-run meetings and what was said
by whom during and after the meetings. It is clear that cer-
tain employees were more involved than others in challeng-
ing statements made by company officials.
At one meeting where Jeff Miller was the company offi-
cial, he was discussing the subject of union promises. After
listening for a while, Gamble raised his hand and, after being
acknowledged, commented that he had been to every union
meeting and had not heard the Union promise anything but
the best representation possible. Miller did not respond to
Gamble’s comment but went on to discuss other matters.
Gamble testified that he spoke up at other company meetings
as well.
Polansky testified that he was in charge of organizing and
scheduling the meetings and did so in such a manner as to
prevent the meetings from interfering with production. He at-
tended them all. When examined as to how much Gamble
got involved in these meetings he testified that although
Gamble is not, at all, a quiet individual, he did not speak up
at the meetings. Most of Gamble’s talking was done after the
meetings, and in response to the meetings. Polansky ac-
knowledged that in meetings with Kirpsak and other mem-
bers of management, the names of employees who spoke out
against the Company would be discussed.
Speerhas attended all of the company meetings conducted
for his shift. These meetings were different from the ones at-
tended by Gamble who worked a different shift. Speerhas did
not speak out at the meetings he attended.
Artman testified that he attended the company meetings
and spoke out. No specific incidents were the subject of tes-
timony.
On January 7, 1994,15 Respondent conducted a captive
meeting, attended by Gamble and Polansky, among others.
The record is silent as to what exactly occurred during and
immediately after that meeting but an incident happened later
that day that raises the implication that Gamble may have
965ALPO PET FOODS
16 According to Polansky.
17 This conversation appears in the text as reconstructed by me in
order for it to read logically. According to Gamble and Hager,
Polansky said, ‘‘I’d like to speak to the president’’ and Hager then
said, ‘‘He’s not the president, he’s the principal.’’ Clearly, Polansky
and Hager were referring to Gamble’s union activity. Hager’s refer-
ring to Gamble as ‘‘the principal,’’ in this context, makes no sense.
Their joint effort to recall the sequence of comments is clearly in
error. More likely, when Polansky referred to Gamble as chief shop
steward to acknowledge his importance in the union campaign,
Hager basically agreed with him but attempted to increase his appar-
ent importance by referring to him as the ‘‘president [of the
Union].’’
brought up the subject of workmen’s compensation during or
immediately after that meeting, and Respondent’s failure to
promptly pay his medical bills. Inasmuch as Respondent
called this meeting specifically to combat the Union’s orga-
nizational drive, Gamble’s statements concerning his work-
men’s compensation bills, if made, were made in the context
of the union drive.
After the January 7 meeting, Gamble went back to his
work station in the machine shop where he joined Hager and
another employee. As the three were standing by the lathes,
Polansky walked up and, referring to Gamble, said, obvi-
ously to needle him and in jest, I’d like to see the chief shop
steward.’’16 Hager, apparently joining in the joke, interjected,
‘‘He’s not the chief shop steward, he’s the president.’’17
Polansky laughed. Polansky’s explanation that he referred to
Gamble as ‘‘chief shop steward’’ merely as a joke is cred-
ited. He testified that the incident occurred during the cam-
paign, that there was a lot of tension in the plant because of
the campaigns of both parties, and that he was just trying to
loosen things up a bit. I find his testimony credible.
Although Polansky, on this occasion, had referred to Gam-
ble as the chief shop steward in jest, he also acknowledged
that he knew that he was involved in the Union’s campaign
as an organizer and a leader and for this reason also, he re-
ferred to Gamble as the chief shop steward.
Having found Gamble, Polansky invited him to his office
where, he testified, he intended to discuss with him some
workmen’s compensation problems that Respondent and
Gamble had been having, workmen’s compensation being
one of Polansky’s responsibilities. He explained that the
problem was in getting the bills paid. Bill collectors had
been calling the company for payment but were not being
paid, then calling Gamble for payment stating that he was re-
sponsible for the bills because no one else was paying them.
As soon as they entered Polansky’s office, Polansky stat-
ed, ‘‘I’ve got a job to do, you have a job to do,’’ just as
though he were continuing a conversation which had begun
earlier and just as if he expected Gamble to know what he
was talking about. Polansky admitted making the comment
and testified that he had made it out of frustration. He ex-
plained that there was a stack of overdue bills on his desk
that he was trying to get resolved and needed Gamble’s help
to accomplish this since they involved an injury that Gamble
had suffered to his knee the previous December. The injury
had occurred when Gamble fell off a forklift. The problem
arose when he filed a workmen’s compensation claim and
there was some confusion about getting bills paid on that
claim, due apparently to problems with the state workmen’s
compensation people. Polansky testified that he made the
statement because he did not want Gamble to think that
Polansky was refusing to pay the bills in retaliation for Gam-
ble’s union organizing activities. More specifically, Polansky
explained that when he said, ‘‘I have a job to do,’’ he meant
that he had the responsibility to get the bills paid, presum-
ably in a manner satisfactory to management that might re-
quire time for processing by the state workmen’s compensa-
tion people. By ‘‘you have a job to do,’’ he meant that Gam-
ble had his beliefs and those required that he continue his
pursuit of union representation. Taken together, Polansky
was trying to tell Gamble that his failure to have his claim
processed had nothing to do with his organizing for the
Union.
Polansky did not, however, explain to Gamble what he
meant by the statement, ‘‘I have a job to do. You have a
job to do,’’ but just assumed that he understood. Gamble,
who had not apparently shared Polansky’s humor in referring
to him as ‘‘the chief shop steward,’’ said, ‘‘If this is about
unions, I want someone in here to listen to this.’’ When
Polansky repeated his original statement, ignoring Gamble’s
remark, Gamble asked him what he meant. Finally, when
Polansky failed to answer Gamble and just laughed, Gamble
walked out of his office. Apparently, Polansky called Gam-
ble back into the office because Gamble testified that
Polansky assured him that the reason he had been called in
had nothing to do with unions and Polansky testified that he
did, in fact, explain to Gamble what he meant by his opening
statement.
After these extended preliminaries were over, Gamble and
Polansky got down to discussing the various bills and work-
ing out the problems interfering with payment. A good deal
of time was spent in trying to contact the workmen’s com-
pensation people to obtain the information necessary to pay
the bills. Through persistence, Polansky and Gamble worked
out the workmen’s compensation payment problems that day.
The General Counsel went into this incident in far more
detail than was warranted. Its sole value, as far as I can see,
is to show that Polansky was aware that Gamble was a key
figure in the union campaign and that some friction existed
between them because of it. Polansky’s refusal to explain
certain of his remarks to Gamble when requested to do so
manifests a delight in toying with his concerns.
On or about January 21, Gamble reported to work for the
afternoon shift, carrying a tape recorder in his hip pocket. He
was standing near the coating line talking to fellow employ-
ees when a supervisor, Randy Quiken came by and asked
him what he had in his pocket. Gamble replied that it was
a tape recorder. Quicken said that he had one too, then
pulled the lapel of his shirt toward Gamble and asked,
‘‘Here, do you want to talk into mine?’’ Gamble replied,
‘‘Well, here, you can talk in mine.’’ They then both laughed
at the joke. Gamble then left the area of the conversation and
proceeded to his work station on the easy-open production
line.
After his conversation with Gamble, Quiken went to
Polansky’s office and informed him that Gamble was walk-
ing around the production floor with a microcassette on his
person. He said, ‘‘I don’t think that he should have that on
the floor,’’ then asked Polansky to get involved.
After receiving Quiken’s report, Polansky proceeded to the
back of the building where he found Gamble working along
side fellow employee, Andy Fair. Polansky said to Gamble,
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Polansky testified that these statements were made by Gamble
in reply to his order to get rid of the tape recorder. I find, however,
that the conversation occurred more logically as described in the
text. I therefore do not credit Polansky’s additional testimony on the
subject of this conversation.
‘‘I’d like to speak to you.’’ Gamble replied, ‘‘Well, Andy’s
standing right here, go ahead and speak.’’ Polansky rejoined,
‘‘This is not Andy’s business. It’s you I want to talk to.’’
Fair then walked away.
Polansky asked Gamble if he had a tape recorder on him.
Gamble replied that the tape recorder was in his toolbox.
Polansky then told Gamble that at no time was anyone al-
lowed to bring a recorder onto the production floor. He
asked Gamble why he had brought it with him. Gamble re-
plied that he had bad ears and that he had trouble hearing
things. He added that he liked to record conversations and
be able to play them back if he needed them. He explained
that when he and the other employees were called into the
captive audience meetings, he wanted to tape them so that
he would not forget anything. Polansky testified that he had
been involved in certain hearing tests that had been given to
the employees several months before and so said to Gamble,
‘‘There’s nothing wrong with your hearing. There were no
threshold changes. So the bottom line is, you’re not allowed
to have a recorder here, because technically, its illegal to
record people’s conversations without their knowledge. You
need to get rid of that right now.’’ Gamble stated that he un-
derstood that taping people’s conversations without them
knowing it, was against the law.
Gamble and Polansky then walked together from the back
of the plant toward the front to where Gamble had his tool-
box. As they walked, Polansky commented, ‘‘We know that
you are a union leader because we have six people that have
seen you hand out union petitions.’’ As they walked down
the floor, Polansky added, ‘‘You know, also, this could be
a very big financial burden on your family.’’ Gamble asked,
‘‘Are you threatening me?’’ then stated, ‘‘I fought for this
country. I have a wife and children, I need to provide food
for.18 How far does this company have to go to scare peo-
ple?’’ Gamble then told Polansky that he was going to write
their conversation down. Polansky laughed and walked away.
Gamble apparently removed his tape recorder from the prem-
ises and never used it to record any conversations or meet-
ings. Concerning the removal of the tape recorder, Polansky
described Gamble as ‘‘pretty much cooperative with it.’’
As noted by Polansky in his conversation on or about Jan-
uary 21, Gamble had been distributing union petitions and
had been seen doing so by at least six people. Gamble, him-
self, testified to distributing various pieces of union literature
within 10 feet of the plant. On more than one occasion he
noticed Polansky watching him engaged in this activity.
David Fernandez testified that on one occasion he ob-
served Polansky out in the parking lot while union literature
was being distributed. On this occasion, Fernandez was leav-
ing the plant at the end of the shift, walking out of the door
into the parking lot when he noticed Polansky. He said to
Polansky, ‘‘I don’t know why you do this (watch the dis-
tribution), because this only aggravates some of the people
that don’t know which way they really want to vote at this
point.’’ Polansky replied that he was just making sure things
were being done legally.
Employee Joseph Grieco testified that 1 day during the
campaign he drove his truck to work and parked it facing the
side of the building, in such a way that in order to see into
it, one would have to walk around the truck to look in to
see anything. Grieco had some union literature that he had
obtained from the International representative lying on the
seat. It was his intention to give these flyers to Gamble to
distribute later.
Later that day, Polansky and Grieco met in front of the
employee lunchroom. Polansky commented to Grieco, ‘‘You
know, that doesn’t look good, having the union papers on the
seat of [your] truck.’’ Grieco testified that although Polansky
said it with a smile, and knew anyway that Grieco was in-
volved with the Union, at the time, he did not care for the
fact that Polansky had been looking into his truck.
One day during the campaign, Artman was outside the
building, standing in the middle of the road that runs along
side it, handing out union literature when Polansky happened
to walk by. He was on his way back from his car after re-
trieving some articles that he had taken to read the night be-
fore in preparation for a staff meeting. When Artman noticed
Polansky, he walked up to him and, handing him one of the
flyers, said, ‘‘Here, you’re gonna probably get this anyway,
so I’ll save you the trip.’’ Polansky thanked Artman and
walked back into the building to attend the staff meeting.
Polansky testified that he had to walk past Artman to get
from his car to the entrance.
Polansky testified that he became aware that someone was
distributing literature when the literature appeared all over
the plant, usually when shift changes occurred and employ-
ees were walking into the timeclock area with flyers in their
hands. When Polansky observed this, he went outside to see
what was going on, how many people were involved, and
whether the distribution was by Respondent’s own employ-
ees or by business representatives who were not employees
of Respondent. To determine the answers to these questions,
Polansky would sometimes station himself in the foyer just
inside the entranceway from where he could see individuals
handing out flyers while standing either in the parking lot or
right in the middle of the road that ran immediately along
side of the building. Polansky testified that aside from identi-
fying who it was that was distributing union literature, he
watched the distribution to make sure that no one was in-
jured by the traffic on the road since he felt that under the
workmen’s compensation laws, Respondent might be held
liable for the individuals who were either coming to or leav-
ing work and on company property. He admitted to observ-
ing both Artman and Gamble distributing union literature,
Gamble possibly twice.
Although Polansky testified to having observed Gamble
distributing union literature on only two occasions, Gamble
testified to having distributed a number of union flyers, some
dated, others undated. These flyers are presumed to have
been distributed on the dates appearing thereon. Thus, the
record indicates that Gamble distributed undated flyers on at
least two occasions and additional flyers on January 21, 22,
and 31 and February 4, 8, 9, 11, 14, and 16.
On February 14, Gamble punched out after completing his
shift and went to get petitions and union literature to distrib-
ute to other employees leaving or coming to work. He testi-
fied that Polansky was already out in the parking lot, before
the employees checked out, as he usually was, to watch the
967ALPO PET FOODS
19 Shope was stipulated an agent of Respondent.
distribution. As Gamble started to hand out flyers, he noticed
Polansky watching, and asked, ‘‘Bruce, what are you out
here for?’’ Polansky replied, ‘‘The plant smells like shit,’’
apparently an oblique reference to Gamble’s activity at the
moment, distributing union literature. Gamble, picking up on
the harassing remark, retorted, ‘‘Bruce, You smell like shit.’’
Polansky continued to watch while Gamble continued to
hand out pamphlets and other union petitions and literature
while standing in the middle of the roadway in front of the
entrance. Gamble testified that he felt intimidated. Polansky
was no more than 10 feet from Gamble when he walked out
the door and began watching Gamble. The incident is one of
several wherein Gamble, though perhaps intimidated, dem-
onstrated that he was determined to stand his ground.
This incident occurred 4 days before the election. Gamble
admitted that he was not disciplined for his remark to
Polansky, received no warning, and was not fired for making
it although Polansky held the position of human resources
manager at the time. Gamble testified that he was not joking
when he made his remark to Polansky. He was serious and
made it because he was pretty upset that Polansky was there
while he was handing out the pamphlets. Gamble testified
further that he had observed Polansky watching him handing
out literature before on the day shifts, but not on the off-
shifts, two or three times.
On February 16, there was another captive audience meet-
ing at the plant that was attended by 25–30 employees. By
this time, it was clear to Gamble that he had been recognized
as one of the main union leaders. This fact was once again
confirmed when, during Kirpsak’s opening statement, he
came over to where Gamble was sitting in the second row,
put his foot on the rung of a chair in the first row, his face
close to Gamble’s face, looked over his glasses down at
Gamble, and said in a very loud voice and with a very angry
tone, ‘‘We don’t need a union here.’’ After doing this,
Kirpsak paused for a little while, then straightened up, and
continued with the meeting. Gamble testified that he felt that
Kirpsak’s actions were intimidating and his tone of voice
surprising but that the statement itself was not surprising.
The election was conducted on February 18. The Union
lost 50 to 25 but filed neither unfair labor practice charges
nor objections at the time as to any conduct that had taken
place during the election campaign. The Board certified the
results of the election on February 28.
Sometime in March, management called a meeting of em-
ployees and announced that the Company was going to con-
duct a survey or poll and that thereafter there would be a se-
ries of one-on-one meetings of all employees with Ginny
Shope,19 of corporate human resources.
Thereafter, employees were called in for interviews with
Shope. Among them were Speerhas and Gamble. Speerhas
met with her on March 8. They talked about problems in the
plant and why the employees felt that they needed a union.
During the interview, Speerhas told Shope that he had voted
for the Union and felt that the Company needed a union. His
interview lasted about an hour.
Gamble met with Shope in April. He knew in advance that
the purpose of the meeting was to determine why the em-
ployees felt they needed a union. Shope worked from a list
of subjects and she and Gamble went down the list, one by
one. One of the subjects concerned disciplinary actions.
Gamble, on this subject, said that he had no ideas because
he had never been involved in any disciplinary matters.
Shope then wanted to know if Gamble had seen management
act in a mean manner toward any of the employees. Gamble
then laughed and described to Shope the incident that had
occurred at the captive audience meeting on February 16.
Shope made no response concerning this incident. When
Shope once again brought up the subject of unions, Gamble
commented that he could not bring a union into the plant by
himself. Shope acknowledged this to be the case. As Gamble
got up to leave after the interview, Shope commented that
he was a different type of individual than she had been told.
In May the Union was engaged in an organizational cam-
paign among the employees of Ball Metals, a company
which shares the same building in which Respondent’s
Weirton plant is located. A representation election had been
scheduled for the Ball Metals employees that had come to
Gamble’s attention. On May 9, Gamble contacted the Daily
Times of Weirton, West Virginia, and placed an ad in that
newspaper to appear on May 11. He paid for the ad himself.
The ad pictured a ballot with a box on it and a check mark
in the box. The ad read:
BALL METALS
VOTE:
YES FOR UNION
GOOD LUCK
FROM
ALPO EMPLOYEES FOR A FREE CHOICE
Before placing this ad in the newspaper, Gamble told sev-
eral employees that he intended to do so. He did not, how-
ever, advise management of his intentions.
According to Polansky, he first heard about the ad after
its publication when one of Respondent’s rank-and-file em-
ployees, named Adams, brought it to his attention. Adams
complained that she had found the ad posted in the lunch-
room and did not believe that it belonged there since its mes-
sage did not represent her views and as an Alpo employee
she did not want to be ‘‘lumped in’’ with those employees
whose views the ad reflected.
Polansky testified that he did not do anything about the ad
immediately. He did not call the newspaper or ask around
the plant to determine who had put the ad in the newspaper.
According to Polansky, he never did find out who was re-
sponsible for the ad.
Kirpsak was out of town the week of May 11 and did not
hear about the ad until he returned. At that time Polansky
came up to show Kirpsak a copy of the ad because he was
worried about the Alpo name being used. They then con-
tacted corporate headquarters to advise them of its existence.
Polansky stated that this was the last he heard about the ad
and thought that that was as far as it went. He did not know
whether or not Adams pursued the matter. On May 18
Polansky left the employ of Respondent.
Kirpsak testified further concerning Gamble’s Ball Metals
ad, that on return from his business trip he was advised that
Eileen Klakos, Ball Metals’ plant manager, had called during
his absence, that she was angry, and had registered a com-
plaint about the ad. The record contains nothing further con-
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 Hereinafter all dates are in 1995 unless indicated otherwise.
cerning Klakos’ dissatisfaction with Gamble’s ad. It says
nothing about whether any steps were taken to identify Gam-
ble as the individual who placed the ad. Kirpsak testified that
the ad did not bother him one way or another except that it
did not reflect the feeling of all of Respondent’s employees.
IV. ECONOMIC EFFECTS OF THE LAYOFF
A. Continuation of Projects
Hager testified that prior to the OCAW campaign he and
Gamble worked together on various projects and continued
to do so after the union campaign. The projects they worked
on together included the installation of the new easy-open
(EZO) department, quality control lab, shower room, rest
rooms, electrician’s office, and supervisor’s office. The type
of work they did included the laying of tile, some electrical
work, and a little of everything.
Kirpsak admitted that the fitting out of the new locker
rooms, laboratories, and offices continued beyond the date of
the layoff and was not completed until the latter part of
1994. As of the time of the hearing, however, there were no
new plans for additional capital expansion.
B. Operator’s Duties
Joseph Grieco, a mechanical operator working on the
Littell machine in the shearing department, testified that it
has always been his responsibility to do some maintenance
work on his machine in order to keep it running. Prior to the
July layoff, however, whenever there was a breakdown, or
a problem arose that was too involved for him to solve him-
self, for example if a piece of machinery had to be fab-
ricated, or something had to be brought within certain toler-
ances, or in other cases where welding, grinding, or polishing
were required, work which he had not been trained to do, he
would rely on Gamble, Hager, or another machinist to do
this type of work. Operator mechanics generally depended on
machinists to do this type of work.
Since the layoffs, however, Grieco testified, there have
been occasions when there have been breakdowns with re-
sulting downtime because there was no one in the shop, no
machinist to remedy the problem. One such occasion, ac-
cording to Grieco, occurred on July 19, a few days after the
layoff of the three maintenance employees. On that date, his
machine was down for 2 hours and 15 minutes on his shift
and 40 minutes on the next shift because of a small 15-
minute polishing job that had to be done before production
could continue but Grieco was not trained to perform the op-
eration and there was no machinist in the shop to do it. As
a result, the line sat idle for approximately 3 hours while
Grieco kept himself active, cleaning up, and doing other
busywork.
Fernandez testified that he has seen operator mechanics re-
pairing things on their machines, which might otherwise have
been done by a machinist if one had been available. In some
cases these were leadmen who had been operator mechanics
and who were responsible for the area of the line being re-
paired, but not in all cases.
C. Overtime
Kirpsak testified concerning studies made by Respondent
with regard to the amount of maintenance overtime worked
by its employees since the layoff as compared to the amount
worked prior to the layoff. His conclusion was that there was
no significant change. The records on which this conclusion
was based covered the period 1992–1994 and indicate that
for the 6 months following the layoff, August 1994 through
January 1995, the maintenance employees worked, on the av-
erage, 4 hours of overtime per month more than they had
worked during the same period a year before, not a signifi-
cant increase, Kirpsak concluded.
Hager testified that both shortly after the layoff and at the
time of the hearing he was working overtime along with
other packers, apparently performing the duties of a packer
but that some of the packers did not want the overtime so
the work was offered to operators and employees in other de-
partments including maintenance employees who accepted
the offer of overtime. The availability of the overtime, ac-
cording to Hager, was occasioned by employees taking vaca-
tions, others who were ill and the availability of Saturday
work generally. This was apparently not maintenance-type
work, however.
Fernandez testified that since the layoffs, he has worked
overtime, maybe four or five times on Saturdays, but that it
was normal for him to do so. He explained that Artman
would usually come in to do preventive maintenance work
on Saturdays but if he refused the work, then either
Fernandez or Thompson would perform that work.
Charles Artman testified that since the beginning of
199520 through the date of the hearing, March 14, he worked
overtime, mostly on Saturdays, about 44 hours. Artman
agreed that this figure equaled 4 hours per week, which, on
average, was consistent with the amount of overtime he had
generally worked during his career.
Joseph Grieco testified that he works in production on a
regular basis and that it has been his experience that the
amount of overtime he works varies throughout the year, de-
pending on what is being produced. Production picks up as
does overtime certain times of the year when particular types
of cans are in production.
Grieco testified that production tends to slacken in spring
and summer but that, nevertheless, he was scheduled to work
2 weeks in March 1995, 12 hours per day. He explained,
however, that there were only three operators in his depart-
ment and one of them was going on vacation. In these cir-
cumstances, it was customary for the other two operators to
cover for the one on vacation by working 12-hour shifts until
his return. Grieco testified that this was normal procedure
that had been carried out before the layoff of July 1994 as
well as after and had nothing to do with the maintenance de-
partment. On the other hand, Grieco also testified that since
the July 1994 layoff of the machinists, he has been engaged
in doing routine preventive maintenance such as changing oil
on weekends, work which, but for the layoff, would have
been done presumably by maintenance department employ-
ees.
Jeff Allamon testified that he has been working overtime,
but that the amount has varied depending on the production
schedule for the week and whether it happens to be a busy
season or a light one. Allamon identified the fall as a busy
season during which Respondent produces and sells cans to
other canning companies. At the time of the hearing, produc-
969ALPO PET FOODS
tion was normal. Allamon’s testimony concerning overtime
was not tied in with the layoff of the maintenance employees
in July 1994.
In sum, I find that there is evidence that some overtime
was assigned to employees to do work ordinarily performed
by the laid-off maintenance employees but that the amount
was minimal.
D. Training of Operators
The record contains some suggestion that part of the work
performed by the laid-off maintenance employees was subse-
quently done by mechanical operators who were specifically
trained for that purpose. Kirpsak denied giving the operators
any formal training, however, defining ‘‘formal training’’ as
‘‘taking an individual aside on a one-on-one basis and phys-
ically showing him how to do every portion of his job.’’
Fernandez testified that at the time of the hearing he was
still employed by Respondent in its maintenance department
as a tool and die machinist. As of that time, he had been
working in maintenance for 8 years. According to Fernandez,
as of the time of the hearing, there were 27 operator mechan-
ics and leadmen working in the plant on the coating line,
presses, and Littell machines. When examined as to whether
or not these operators had been given any training to take
over the responsibilities for machine repair that had pre-
viously been done by Fernandez and the laid-off machinists,
he stated that there had been no formal training, no training
of machine operators to take over all the responsibilities to
repair all of the parts for all of the machinery. Fernandez ex-
plained that what he meant was that the machine operators
were not called in and taught about the safety of the equip-
ment and the safest way of operating machines. He denied
that he had been training any of the machine operators, or
that he had observed any of them receiving training. Under
cross-examination, however, Fernandez admitted that he had
seen some on-the-job training of operator mechanics.
Charles Artman testified that since the layoff of Gamble,
Speerhas, and Hager, he has not been engaged in training
machine operators to do machinists’ work on their machines.
Moreover, he stated that he had no knowledge of anyone
training the machine operators to do machinists’ work.
Grieco testified that since the layoff of the machinists, he
has not received any training to perform new duties associ-
ated with maintenance work. He has received no formal
training to do preventive maintenance or repairs on his ma-
chine and no training of any kind from anyone from the
maintenance department.
Grieco explained that he got on-the-job training from the
other operator mechanics on how to operate his machine but
no formal training. When machinists would come out of the
maintenance department to work on Grieco’s machine,
Grieco was aware of a line that separated him and his abili-
ties from the machinist and his abilities and knew when not
to get in over his heard. Depending on the particular operator
and his abilities, however, he might take that extra step to
keep his machinery running.
Before the July layoff, according to Grieco, in case of a
breakdown, he would sometimes call Hager and they would
spend 5 or 6 hours together while Hager worked on Grieco’s
machine. On other occasions, if Grieco was unsure of some-
thing and he needed Hager’s expertise with some procedure
or information about parts he would call for his assistance.
He admitted that it was hard to say specifically where his re-
sponsibility ended and that of the maintenance people began.
In any case, Grieco appeared to be testifying to the effect
that there has been no changes in the relationship between
the operators and machinists since the layoff. They continue
to do their own jobs. The operators have not taken over the
machinists’ duties.
I conclude on the basis of record testimony that machine
operators have not undergone any degree of training that
might enable them to perform the work of the laid-off main-
tenance employees. They have not done so to any great de-
gree.
E. Amount of Maintenance Work Available
Although Fernandez testified that he had been told by
Kirpsak that if the work backed up in the maintenance de-
partment it was possible that Hager might be called back in
from the production department, he also testified that the
work has not backed up, since the layoff, to the degree that
would necessitate his transfer back into maintenance. On the
other hand, Fernandez testified that since the layoff in July,
he has come in on at least one occasion to find the Littell
line down. He stated that he had to repair it so that the oper-
ators could continue to run it. I find this testimony evidence
that Respondent’s layoff of the three maintenance employees
has left it with a shortage of personnel but that it has chosen
to suffer the shortage rather than recall them.
F. Machine Efficiency
Kirpsak testified concerning the subject of machine effi-
ciency at the plant since the layoff and before. He defined
machine efficiency as the percentage of scheduled hours that
a machine should run as opposed to the hours a particular
machine actually runs. He testified that failure to reach 100
percent of a machine’s productive capacity may be caused by
any of several factors including mechanical failure, change-
overs, and a lack of raw material.
Respondent periodically measures the downtime of each of
its machines and notes its efficiency. Graphs or charts are
published indicating the changes in efficiency and these are
both posted in the facility and forwarded to corporate head-
quarters. It is obvious that machine efficiency is considered
extremely important by management.
In order to establish that the layoff of the three mainte-
nance employees was firmly grounded on legitimate eco-
nomic considerations rather than on discriminatory antiunion
motivation, Respondent, during the hearing, offered into the
record a set of charts reflecting the efficiency of each of its
machines, on a month-by-month basis, covering the period
January 1993 through February 1995. Kirpsak was requested
to analyze these charts and draw conclusions as to the effi-
ciency of the various machines over the period covered.
As to the efficiency of the EZO END machine, Kirpsak
concluded that, as a whole, there was an upward trend in ma-
chine efficiency over the entire period from the EZO END’s
inception in April 1993 through February 1995. This appears
to be correct.
Kirpsak was also requested to testify as to the trend in the
efficiency of the EZO END machine since the layoff of the
maintenance employees in July 1994. He testified that, on
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the average, the chart showed a steady upward trend in that
machine’s efficiency and his assessment appears accurate.
Kirpsak then testified, concerning the 300 DIA END ma-
chines, three in number, that since the layoff, these machines
had steadily increased in efficiency each month except for
one and that exception was due to a conversation in the use
of certain compounds that necessitated taking down, then re-
assembling the machines.
Kirpsak testified concerning the 307 DIA END machine
that, unlike the other machines, its chart indicates that it is
cyclical and operates only on demand. He concluded, based
on its chart, that since July 1994, this machine has undergone
no significant change in its efficiency. He testified that the
ups and downs on the chart coincide with the cycles in
which requirements vary.
Kirpsak testified that the chart entitled ‘‘decorating effi-
ciency’’ represents the three coating machines. Requested to
analyze the chart, he stated that it reveals no significant
changes, upwards or downwards, in the efficiency of these
machines. Comparing the months of January and February in
1993 to 1994 and 1995, Kirpsak testified that he could see
no significant change in the efficiency of the coating ma-
chines.
In Respondent’s brief, based on the charts as analyzed in
his testimony by Kirpsak, it is concluded that the machines
at the plant are operating at steadily increasing levels or at
the same levels as compared to the time period prior to the
layoffs. The brief concludes further that the efficiency ratings
indicate quite clearly that the loss of maintenance workers
has not resulted in increased downtime on machines.
Kirpsak’s analysis of the machine efficiency charts did
much to enlighten the reader as to the recovery or failure of
recovery of machine efficiency following the layoff of the
three maintenance employees. His analysis, however, does
not educate the reader as to the apparent immediate and di-
rect effect on machine efficiency of the layoff itself. I have
therefore used the same documents, myself, in order to ana-
lyze machine efficiency at Respondent’s plant, both as it was
immediately affected by the July 1994 layoff and as it was
affected over the periods 6 months prior to the layoffs and
6 months following the layoffs.
Concerning Kirpsak’s analysis of the EZO END chart, I
found it accurate. Unlike the efficiency of the other ma-
chines, the machine efficiency of the EZO END machine re-
mained level immediately following the layoff of the mainte-
nance employees in July 1994, then increased throughout the
year and on into February 1995. The answer as to why the
EZO END machine should not have been affected by the
loss of the maintenance employees as were the other ma-
chines probably lies with the fact that it was a new line re-
quiring little, if any, repair by maintenance employees be-
cause it was being operated by mechanics who had recently
received special training over a 2-week period, in Chicago,
from the manufacturer. The EZO line was in a separate cat-
egory from the other machines.
Be that as it may, a comparison of the machine efficiency
tendencies of each of the five types of machines is enlighten-
ing. First, there should be a comparison of machine effi-
ciency immediately before and after the layoff. Then, a com-
parison of efficiency during each of the first 6 months of
1994 when there was a full complement of maintenance em-
ployees, with the machine efficiency of the same machines
during each of the last 6 months of 1994, after the layoff.
The statistics are Respondent’s own:
1994 MACHINERY EFFICIENCY
300 DIA END JAN FEB MAR APR MAY JUN
78% 84% 85% 88% 90% 81%
JUL AUG SEP OCT NOV DEC
77% 82% 85% 85% 87% 79%
307 DIA END JAN FEB MAR APR MAY JUN
88% 64% 83% 88% 88% 85%
JUL AUG SEP OCT NOV DEC
78% 70% 82% 81% 82% 74%
307 EZO END JAN FEB MAR APR MAY JUN
52% 56% 53% 49% 50% 53%
JUL AUG SEP OCT NOV DEC
53% 57% 60% 56% 58% 59%
SHEARING JAN FEB MAR APR MAY JUN
76% 76% 80% 82% 80% 78%
JUL AUG SEP OCT NOV DEC
70% 73% 79% 79% 82% 84%
DECORATE JAN FEB MAR APR MAY JUN
74% 73% 80% 80% 79% 80%
JUL AUG SEP OCT NOV DEC
73% 74% 73% 71% 75% 70%
Analysis of this table indicates that four of the machine
lines listed lost machine efficiency with the layoff of the
three maintenance employees. Machine efficiency dropped
between 4 and 8 percent between June, when there was a full
complement of maintenance employees, and July, when the
layoff occurred. Lest this precipitous 1-month decrease in
971ALPO PET FOODS
machine efficiency be thought to be unrepresentative of the
entire picture, a month-by-month comparison of the first 6
months of 1994, when the maintenance crew was at full
strength, with the last 6 months of 1994, following the lay-
off, is instructive. Thus, a comparison of the first month of
the year with a full complement of maintenance employees
(January), with the first month of the year with the reduced
complement of maintenance employees (July), reflects a de-
crease in machine efficiency in four out of the five machine
lines. A similar comparison of the following months, Feb-
ruary with August, March with September, etc., reflects that,
with the exception of the 307 EZO END machine line, every
other machine line’s efficiency decreased on a monthly com-
parison basis over the last 6 months of 1994, following the
July layoff. Thus, the 300 DIA END machine line’s effi-
ciency decreased 5 out of 6 months, the 307 DIA END ma-
chine line’s efficiency also decreased 5 out of 6 months, the
shearing line’s efficiency decreased 4 out of 6 months and
the decorating line’s efficiency declined 5 out of 6 months.
A comparison of the sixth month of each period (June for
the full complement of maintenance employees and Decem-
ber for the reduced complement) reflects that three of the
four machine lines, EZO excepted, had not yet recovered
from the layoff. The machine efficiency of the 300 DIA
END had been 81 percent in June but only 79 percent in De-
cember, the 307 DIA END had been 85 percent in June but
only 74 percent in December, the shearing machine, the ex-
ception, had increased in machine efficiency from 78 percent
in June to 84 percent in December but the decorating line
had fallen in efficiency a full 10 percent from 80 percent in
June to 70 percent in December.
Although in 1995, the efficiency tendency of some of the
lines improved over the last months of 1994 after the layoff,
except for the EZO END line, the machines never recovered
the efficiency they had achieved during the most successful
months in 1994 prior to the layoff. Thus:
EFFICIENCY 4/94 5/94 1/95 1/95
300 DIA
END 88% 90% 83% 85%
307 DIA
END 88% 88% 81% 77%
307 EZO
END 49% 50% 59% 61%
SHEARING 82% 80% 80% 81%
DECORATE 80% 79% 73% 72%
Despite the undeniable evidence that Respondent’s ma-
chine efficiency has declined following, and as a result of,
the layoff of the three maintenance employees, Respondent
has neither recalled them to their jobs in the maintenance de-
partment, nor replaced them.
The sudden decrease in machine efficiency following the
July layoff clearly caused concern among Respondent’s man-
agement because just before the beginning of the new fiscal
year on October 1, 1994, Respondent put into effect a new
incentive program called ‘‘gain sharing.’’ The program was
designed to encourage an increase in machine efficiency and
included, as part thereof, the posting of efficiency ratings for
the machines, which ratings are collected on a daily basis by
the supervisors.
Grieco testified that, because of the ‘‘gain sharing’’ pro-
gram, he kept close watch on the posted efficiency ratings.
In response to a suggestion that the efficiency of his machine
had stayed the same or gotten better over the course of the
last year, he stated, ‘‘We have made an effort because we’ve
had some rough times. . . . and with the gain sharing pro-
gram that they’ve implemented, we’ve made more of an ef-
fort to keep the thing running a little better.’’ Grieco ac-
knowledged that through these efforts he has been able to
run his machine better, do a better job and get a little quicker
on some of the jobs he does. This has had the effect of hav-
ing the efficiency rating of his particular machine go up.
Grieco testified that as of March 1995, his machine, the
Littell machine in the shearing department, was running at
about 80 percent and management was hoping to increase its
efficiency to 83 percent, on average, by the end of the year.
An increase of this dimension, management promised, would
result in an incentive award if the other elements factored in
also prove successful.
G. Raises and Profit Sharing
Following the July 11 layoffs, but still sometime in July,
according to Fernandez, he received a 20-cent-per-hour raise.
He testified that he received still another raise in October,
amounting to 3.5 percent. The latter raise was for all hourly
employees throughout the plant and was expected since they
had received raises every October in the past. Fernandez tes-
tified to also having received a check for about $3900 gross
in November.
Kirpsak confirmed that he gave a 20-cent-per-hour raise to
all operators, maintenance machinists, and to all skilled posi-
tions within the facility within a week or two of the layoffs.
Kirpsak admitted that granting raises in the middle of the
year was not normal but he granted the raises at this time
‘‘because we were going to ask particular individuals to as-
sume more responsibility for the maintenance and operation
of their equipment.’’ There is no evidence, however, that the
employees were ever actually requested to assume such addi-
tional duties.
Kirpsak also confirmed that Respondent granted a 3.5-per-
cent raise in October, a raise which had been granted annu-
ally since the plant first opened.
Kirpsak also testified as to the existence of a profit-sharing
plan. He explained that the amount received in profit sharing
by each employee varies and depends on the individual’s
base wage, the number of hours he worked during a given
period, and the amount of corporate profit available for divi-
sion. The profit-sharing plan, according to Kirpsak has been
in existence since 1992 with the most recent payments being
distributed in the summer of 1994, a 10- to 11-percent pay-
ment, then another in February 1995.
H. Subcontracting
Charles Artman testified concerning outside contracting
since the layoff of Gamble, Speerhas, and Hager. He identi-
fied Valley Manufacturing as a Company that did some work
for Respondent involving shafts for magnetic wheels on the
conveyor system used in loading and other work involving
the making of knives. Prior to the layoff, Speerhas and
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fernandez had done the work on the magnetic wheel shafts
while Hager had made the knives. Hager, a packer in the
press department since his demotion, confirmed that he had
manufactured cutoff knives when he had been a machinist.
Other contractors, whose names Artman did not know, he
identified as having installed ceilings, tile, and lockers in the
new section of the plant. This work was also done after July
11.
Fernandez testified to being aware of subcontracting of
machinists work since July 15, some on a regular basis. He
confirmed Artman’s testimony that Valley Manufacturing
regularly began to make the cutoff knives beginning July 15
and that on that day, Respondent contracted out the job that
Speerhas had been doing on aluminum shafts for the presses,
also to Valley Manufacturing. Respondent also sent to Valley
Manufacturing another job previously done in its own plant
for the coating department, according to Fernandez. The job
consisted of shrink fitting a hub onto a shaft and assembling
it. Other subcontracting performed after July 15, such as
work by R and R Electric and Greco Plumbing, had been
going on before the layoffs.
Kirpsak testified generally on the subject of maintenance
outsourcing that in 1993 it amounted to $89,075 and in 1994
to $72,900. From July 10 through December 31, 1993, the
maintenance outsourcing amounted to $52,600 whereas dur-
ing the same period in 1994, that which immediately fol-
lowed the layoff, the amount was $43,300. The difference in
the amount of maintenance outsourcing amounts to a de-
crease of approximately $9000.
Kirpsak freely admitted that since the layoff, Respondent
has subcontracted certain high tolerance work that would
have been done by the employees who had been laid off. In
particular, he agreed, much of work had been sent out to
Valley Manufacturing but all of the subcontracting to Valley
Manufacturing since the layoff amounted to just $4900. He
testified that this compares to between $84,000 and $89,000
in savings resulting from the layoffs. Respondent, at the time
of the hearing, was still contracting out maintenance work.
Paul Allamon was called as a witness to corroborate
Kirpsak’s testimony with regard to the amount and cost of
subcontracting and credibly did so.
I. Recent Events
In August, employee Barrett, one of the two remaining
employees still on sick leave returned to work and the sec-
ond of the three temporary employees was released. Em-
ployee Wilson, the third and last employee on sick leave, re-
turned from sick leave, and the last temporary employee was
released. Respondent hired no additional temporaries after
that.
V. CONCLUSIONS
The above factual account reveals that although Respond-
ent’s financial condition in November 1993 may have re-
quired some adjustment in its operations, by April 1994, the
necessity for any drastic change was no longer present.
Whereas Kirpsak’s November 1993 memorandum and rec-
ommendations came about as the direct result of his superi-
or’s request, his June 28 letter recommending that three
maintenance employees be laid off did not result from any
particular problem brought to his attention by his superiors
but appears to have been spontaneous as well as precedential
in the sense that Respondent never before permanently laid
off any of its employees.
I find Kirpsak’s testimony concerning the reasons why he
retained the plant electrician and the two tool-and-die makers
quite credible. I find his testimony, however, that at the time
he composed his June 28 letter he was dealing solely with
positions, not with individuals, patently untrue. Likewise, I
find untrue, his statement that it was only after determining
what positions were to be retained, that he went into the
question of which employees were going to be retained in
those positions.
Kirpsak testified that after he composed the June 28 letter
he discussed it with Vanyo. They then took the proposal to
Vanyo’s superior. He testified, as cited supra:
And at that point, when we got approval to proceed
with this, we went to the policy manual and read it, and
read it. And thought about it until we came up with ex-
actly how we were going to proceed with what particu-
lar individual.
Prior to that, it was just jobs. There were no individ-
uals. At this point, when this memo was written, it was
jobs. It was not individuals.
I find this testimony pure nonsense and a deliberate at-
tempt on the part of Respondent to mislead the administra-
tive law judge and the Board. It is obvious from a casual
reading of the letter that Kirpsak knew when he wrote it that
Gamble was going to be laid off because it states on page
two: ‘‘III. Unfortunately, the reduced personnel needs in the
department will result in the displacement/layoff of two Ma-
chinists and one Machinist Electrician.’’ Since David Gamble
was the only machinist/electrician in the plant, it is clear that
he was chosen for layoff before the June 28 letter was com-
posed. The fact that Kirpsak would deny that he was sched-
uled for layoff all along, when this in fact was the case, war-
rants the adverse inference that the true motivation behind
Gamble’s layoff may have been unlawful. Indeed, in this
case, I so find.
Far from being surprised, after the issuance of the June 28
letter, that Respondent’s manual required the layoff of Gam-
ble, Hager, and Speerhas as the maintenance employees with
the least departmental seniority, it would appear obvious that
Respondent’s management was fully aware of the seniority
positions of these three individuals before the June 28 letter
was composed, and tailored the letter to this advanced
knowledge. In other words, if management determined to rid
itself of Gamble but still remain within the seniority rules
contained in the manual, it would first have to lay off Hager
and Speerhas. That required the layoff of three maintenance
department employees in all and so the June 28 letter was
composed as it appears, following the letter of the layoff by
seniority rule.
The conclusion that Respondent was anxious to get rid of
Gamble even if it necessitated the laying off of two other
less senior employees is supported by the following facts,
more fully covered in previous sections of this decision.
Thus, Gamble was exceedingly active in the 1990 efforts of
the GCIU to organize Respondent’s employees, and his ac-
tivity was well known to Respondent’s management. In No-
vember 1993, Gamble personally contacted the OCAW and
973ALPO PET FOODS
began to organize once again. Gamble was the initiator of
the new campaign, the most active of Respondent’s employ-
ees and was admittedly well known as the campaign’s prime
mover by management. Although Hager also was active for
the Union, it was Gamble who took Hager to the initial
meeting and got him interested in the campaign. At captive
audience meetings, Gamble openly challenged statements
made by speakers for the Company and spoke up after meet-
ings concerning what had been said at the meetings.
Kirpsak’s testimony was that he was personally against
unions, while the holding of antiunion captive-audience
meetings and the distribution of antiunion literature ade-
quately demonstrates general antiunion sentiment. Further
evidence of animus includes the statement of Respondent’s
production manager during the first captive-audience meet-
ing, that the organizing effort was like a knife in his back.
Although the General Counsel placed in the record a series
of incidents involving Gamble and various members of man-
agement designed quite clearly to show a pattern of delib-
erate harassment of Gamble and the existence of friction be-
tween them, most of these incidents could not have been
considered, each by itself, serious enough to warrant the
finding of a violation, even if timely filed, until January 21,
1994. When, on that date, during the conversation that fol-
lowed the discussion about the tape recorder, Polansky com-
mented to Gamble, ‘‘We know that you are a union leader
because we have six people that have seen you hand out
union petitions. . . . You know, also, this could be a very
big financial burden on your family,’’ Polansky committed a
violation of Section 8(a)(1). Had that statement been alleged
in timely fashion as a violation of the Act, I would have
found it such. In the absence of the allegation, I find it to
be a threat of termination because of Gamble’s union activ-
ity, a threat that was eventually carried out. Though not al-
leged or found, it is still evidence.
Other incidents of harassment continued to occur through-
out the remainder of the campaign as did incidents of sur-
veillance. Although sometimes the occurrences were accom-
panied by a smile or laugh, they nevertheless were frequently
abrasive and often interfered with Gamble’s activities on be-
half of the Union. Gamble was clearly annoyed with both
Polansky’s remarks and his surveillance, and sometimes felt
intimidated. Again, these incidents were not alleged as viola-
tions because of the prohibitions of Section 10(b).
The incident that occurred during the captive-audience
meeting of February 16 was not merely one more case of
harassment but a matter of sending a message to Gamble and
to everyone present that Kirpsak was fully aware that Gam-
ble was the person responsible for the organizational cam-
paign, the ringleader, the individual who cost the Company
$50,000. He was special, not just one of several moderately
active prounion people such as Grieco or Artman. Kirpsak’s
action that day was also another way of stating that the
struggle was personal, Kirpsak versus Gamble, and that
eventually Kirpsak would get even. After all, Kirpsak did not
go nose to nose with anyone else in the room that day nor
any other day. And Kirpsak and Polansky did not harass any
other employee throughout the campaign nearly as much as
Gamble.
The series of meetings held by Shope with the employees
in March and April, following the election, during which she
asked employees why they felt they needed a union, clearly
indicated that Respondent had not put aside the organiza-
tional effort as a thing of the past but was still pursuing
means of preventing similar campaigns in the future. When
Speerhas admitted to Shope that he had voted for the Union,
it made even more obvious what was already known, namely
that the core of the employee organizational effort was the
maintenance department. Gamble, Hager, and Artman were
all known union activists. Now Speerhas also admitted to
voting for the Union. When Shope commented to Gamble,
at the end of their interview, that he was a different type of
individual than she had been told, it indicated that he, spe-
cifically, had been discussed by management prior to the
interview and probably in preparation for the interview.
In May, when Gamble placed the ad in the newspaper an-
nouncing the support of the Alpo employees for the Ball em-
ployees’ organizational efforts, when Gamble spread the
word among the other employees that he had done so, when
the ad then came to the attention of Polansky and Kirpsak
through complaints from their own employees as well as
from Ball management people, it had to have been clear to
Respondent’s management that Gamble must have been in-
volved and that he was going to remain an active unionist
for as long as he was around. Whether they actually had evi-
dence that Gamble had personally placed the ad or not, they
would certainly have suspected his involvement. Their con-
cern is apparent because Polansky and Kirpsak contacted
corporate headquarters to advise them of the ad. It was short-
ly after that, that Polansky left Respondent’s employ.
At the time of the layoff the projects that had been under-
taken earlier still had not been completed. Hager and Gamble
were still performing tasks on these projects when they were
laid off in July. They had been performing these tasks be-
cause it was more economic for Respondent to use its own
employees to do the work than to hire outside contractors to
perform it. As Kirpsak admitted that the work on the projects
continued until the latter part of 1994, and there is no evi-
dence in the record to indicate that it suddenly became more
economical for Respondent to hire outside contractors than to
use its own maintenance employees to do the work, it is
clear that Respondent was perfectly willing to take the losses
rather than keep Gamble and the other two prounion people
on the payroll.
As noted supra, Grieco testified that he used to be able to
depend on obtaining the help of machinists when he had
problems with his machine that he could not solve himself.
He said that since the layoff, however, there have been in-
stances when his machine has broken down with no one
available to help, with resulting downtime. Respondent, of
course, had to be aware of these instances but did nothing.
This indicated that Respondent would rather suffer the loss
of downtime than recall the machinists whose layoffs were
responsible for the loss of production. The recall of one or
more of the machinists could alleviate the situation but Re-
spondent does not want them as employees. Since Respond-
ent has never claimed that there was anything wrong with
their work and their services are obviously needed, there
must be some other reason why they are not being recalled.
The only apparent reason is their past union activities and
sympathies and the certainty that Gamble will certainly be at
the forefront of the next union organizing campaign with the
likelihood that he will have the support once again of Hager
and Speerhas.
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Wright Line, Inc., 251 NLRB 1083 (1980).
The tables included in the above section on machine effi-
ciency clearly indicate that since the layoff of Gamble,
Hager, and Speerhas, Respondent’s machine efficiency has
decreased markedly. The tables prove, through the timing in-
volved, that this decrease is directly due to the July layoffs
and that the maintenance department, since then, has been
understaffed. Grieco’s testimony supports this conclusion.
Although the problem could easily be solved by rehiring one
or more of the laid-off maintenance employees or hiring new
employees, the Respondent cannot do either because it has
placed itself in an untenable position by choosing to claim
that the layoffs were economically motivated and were suc-
cessful. Clearly, Respondent’s own charts prove that the lay-
offs were injurious, that machine efficiency has decreased.
Yet, Respondent cannot rectify the situation without under-
mining its case. It cannot hire new maintenance employees
to replace those who were laid off because Gamble, Hager,
and Speerhas were all admittedly good employees. It cannot
recall those who were laid off because Gamble has depart-
mental seniority and under Respondent’s own rules would
have to be the first recalled. Respondent could simply admit,
if it were actually true, that the layoff was an economic mis-
take and recall Gamble and perhaps the others. As it has re-
fused to do so, in the face of the problems brought about by
the depleted staff, I find the position taken by Respondent
to be evidence of unlawful motivation.
The record indicates that Respondent granted raises in July
and October and payments under the profit-sharing plan, at
various times. The October raise and the profit-sharing pay-
ments were annual and not precedential. The July 20-cent-
per-hour raise that was granted within 2 weeks of the layoff
was given, Kirpsak testified, because ‘‘we were going to ask
particular individuals to assume more responsibility for the
maintenance and operation of their equipment.’’ As no one
was requested to assume any new responsibilities and no
such responsibilities in fact were assumed, and because this
raise was granted to all skilled positions across the board, in-
cluding to the remaining maintenance department employees,
it clearly had nothing to do with the assumption of additional
responsibilities by ‘‘particular individuals.’’ Rather, follow-
ing hard on the heels of the layoffs, it may have served the
purpose of generally demonstrating the gratitude of Respond-
ent for the loyalty of the majority of its employees who
voted against the Union while making an obvious example
of Gamble, the most outspoken union activist and the two
other prounion employees laid off along with him. At the
very least, I find that the granting of the raises and profit-
sharing payments demonstrate, as the General Counsel ar-
gues, that Respondent was not in such dire financial condi-
tion that the layoffs were an economic necessity.
The above subsection on subcontracting contains evidence
that the total amount of subcontracting, as measured in dol-
lars, decreased following the layoff of the three prounion
maintenance employees. This fact is apparently due to a de-
crease in the subcontracting of the nearly completed project
work. It appears, however, that there was an increase in the
amount of subcontracted work that had previously been done
by the maintenance employees who were laid off in July.
This work is regular maintenance work always performed by
Respondent’s own employees in connection with production,
as opposed to project work assigned to them in connection
with plant expansion, and already discussed supra.
The allegation in the complaint that Respondent subcon-
tracted maintenance work previously done by the mainte-
nance employees laid off in July 1994 is supported by the
testimonial evidence offered by Respondent’s employees and
by Kirpsak’s own testimonial admissions.
I find, therefore, that the subcontracting was undertaken by
Respondent in conjunction with the layoffs in an effort to
avoid employing and/or recalling its maintenance employees
because they engaged in union activities. Consequently, I
find further that the layoffs of Gamble, Hager, and Speerhas
on July 15, 1994, and the subsequent subcontracting of the
work previously performed by them was in violation of Sec-
tion 8(a)(1) and (3) of the Act.
Having found that the General Counsel has presented a
prima facie case that Respondent violated Section 8(a)(1) and
(3) by laying off Gamble, Hager, and Speerhas because they
engaged in union activity and also laid off Hager and
Speerhas in order to be able to lay off Gamble in compliance
with existing seniority rules in violation of Section 8(a)(1)
and (3), I find further that Respondent has failed to meet its
burden under Wright Line21 of demonstrating that the same
action would have taken place in the absence of the protected
conduct. The decrease in machine efficiency suffered as a di-
rect result of the discriminatory layoffs demonstrably pre-
cludes the availability to Respondent of a Wright Line de-
fense.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth above, occurring in
connection with its operations described above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act
and that it is responsible for remedying the violations, I shall
recommend that it be ordered to cease and desist therefrom
and to take certain appropriate and affirmative action de-
signed to effectuate the policies of the Act. In particular, as
I have found that employees Gamble, Hager, and Speerhas
were discriminatorily laid off, I shall recommend that Re-
spondent be required to offer them full and immediate rein-
statement to their former positions, without loss of seniority
or other rights and privileges, discharging if necessary any
replacements, and make them whole for any loss of earnings
they may have suffered by reason of the discrimination
against them by payment to them of a sum of money equal
to the amounts that they normally would have earned from
the date of their layoffs to the dates on which bona fide of-
fers of reinstatement are made, in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest thereon
computed in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). See also Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). I shall also recommend
that Respondent be required to post an appropriate notice.
975ALPO PET FOODS
22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
23 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
CONCLUSIONS OF LAW
1. Respondent Nestle is the successor to Respondent Alpo
and is responsible for the remedying of all unfair labor prac-
tices found here.
2. Respondents Alpo and Nestle are employers engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
3. Oil, Chemical and Atomic Workers International Union,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
4. By laying off David Gamble, Earl Franklin Speerhas,
and Mark Hager and failing and refusing to recall them to
their positions in the maintenance department because of
their union activity, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
Act.
5. By subcontracting work previously performed by David
Gamble, Earl Franklin Speerhas, and Mark Hager because of
their union activity, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended22
ORDER
The Respondent, Alpo Pet Foods, Inc. and Friskies Pet
Care, a Division of the Nestle Food Company, Weirton,
West Virginia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from discouraging membership in, ac-
tivities on behalf of, or sympathies toward Oil, Chemical and
Atomic Workers International Union, AFL–CIO or any other
labor organization by
(a) Laying off employees and failing and refusing to recall
them because of their union activity.
(b) Subcontracting work previously performed by employ-
ees who have been laid off because of their union activity.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to David Gamble, Earl Franklin Speerhas, and
Mark Hager immediate and full reinstatement to their former
positions, without prejudice to their seniority and other rights
and privileges, discharging if necessary, any replacements,
and make them whole for any lost earnings resulting from
the discrimination against them by payment to them of a sum
determined in accordance with the formula set forth in the
remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its plant in Weirton, West Virginia, copies of
the attached notice marked ‘‘Appendix.’’23 Copies of the no-
tice on forms provided by the Regional Director for Region
6, after being duly signed by the Respondent’s representa-
tive, shall be posted by it immediately upon receipt thereof
and maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT lay off employees because of their union
activity.
WE WILL NOT subcontract work previously performed by
employees who have been laid off because of their union ac-
tivity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer David Gamble, Earl Franklin Speerhas, and
Mark Hager immediate and full reinstatement to their former
positions, without prejudice to their seniority and other rights
and privileges, discharging, if necessary, any replacement,
and make them whole for any lost earnings resulting from
the discrimination against them.
ALPO PET FOODS, INC. AND/OR FRISKIES PET
CARE, A DIVISION OF THE NESTLE FOOD
COMPANY