General Combustion Corp.

National Labor Relations Board - Board Decisions

Jul 31, 1989

295 N.L.R.B. 1103 (N.L.R.B. 1989)

GENERAL COMBUSTION CORP.
Genco/Hy-Way Division of General Combustion
Corporation and International Union of Elec-
tronic, Electrical, Salaried, Machine and Furni-
ture Workers, AFL-CIO. Case 8-CA-21133
July 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On May 15, 1989, Administrative Law Judge
Martin J. Linsky issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' The General Counsel has excepted to some of the judge 's credibility
findings . The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect . Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cit.
1951) We have carefully examined the record and find no basis for re-
versing the findings.
Nancy Recko, Esq., for the General Counsel.
H. A. DiBlasio, Esq. and Matthew Fekete, Esq., of
Youngstown, Ohio, for Respondent.
Patrick Kearney, Staff Representative of Kettering, Ohio,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On 21
July 1988 a charge was filed by the International Union
of Electronic, Electrical, Salaried, Machine, and Furni-
ture Workers, AFL-CIO, against Genco/Hy-Way Divi-
sion of General Combustion Corporation (Respondent).
On 30 September 1988 the National Labor Relations
Board, by the Regional Director for Region 8, issued a
complaint, which alleges that Respondent violated Sec-
tion 8(a)(1) of the National Labor Relations Act (the
Act) on 8 July 1988 when it coercively informed an em-
ployee that he should refrain from union activity and
created the impression that the employees' union activi-
ties were under surveillance and that Respondent, violat-
ed Section 8(a)(1) and (3) of the Act also on 8 July 1988
when it laid off four employees because on their activity
on behalf of the Union or because they participated in
1103
concerted protected activity. Respondent denies that it
violated the Act in anyway. I find for the Respondent.
A hearing was held before me on 6 and 7 February
1989 in Youngstown, Ohio.
On the entire record in this case, to include posthear-
ing briefs submitted by the General Counsel and Re-
spondent, and on my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Genco/Hy-Way Division of General
Combustion Corporation is a Florida corporation with
an office and place of business in Youngstown, Ohio,
where it is engaged in the manufacture of heat generat-
ing and processing devices.
Annually, Respondent in the course and conduct of its
business, sells and ships from its Youngstown, Ohio facil-
ity products, goods, and materials valued in excess of
$50,000 directly to points outside the State of Ohio.
Respondent admits, and I find, that it is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find , that the International
Union of Electronic , Electrical , Salaried, Machine and
Furniture Workers, AFL-CIO is now, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Genco/Hy-Way Division is located In Youngstown,
Ohio. Its parent is General Combustion Corporation
which is located in Orlando, Florida.
Genco/Hy-Way, which I will refer to as Respondent,
began operations in early 1987. It specializes in the man-
ufacture of hot oil heaters used for asphalt heating in
highway construction. General Combustion Corporation
has a similar facility in Orlando, Florida.
The work is somewhat seasonal . The slow period
begins as the summer approaches.
The Youngstown facility, which began operations in
early 1987, did not have a layoff of employees for lack
of work until 8 July 1988. On 8 July 1988 the four discri-
minatees , i.e., Robert Burkholder, Ray Carter, Joseph
Rios, and Robert Johnson, plus three other employees,
were laid off. As of the time of the hearing none of them
had been recalled. It is alleged that Respondent violated
the Act when it laid off these four men. It laid them off,
according to the General Counsel's theory, because of
their interest in organizing a union . It is also alleged that
Respondent violated the Act on the day of the layoffs in
a conversation between Plant Superintendent James
Brown and Robert Burkholder, one of the four discri-
minatees . Respondent's work force was not represented
by a union.
In 1986 there was a layoff due to lack of work at the
Orlando facility and in June 1988 , just weeks before the
295 NLRB No. 128
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Youngstown layoff, there was another layoff due to lack
of work in Orlando. Respondent has no written policy
on layoffs but has an oral policy , which is that the best
employees are kept on and the "worse " employees are
let go . In deciding better and worse , Respondent consid-
ers attitude , performance, and workmanship . Seniority
played no part in the layoffs at the Orlando facility.
Documentary evidence in the nature of financial data
was presented by Respondent at the hearing to establish
that there was indeed a reduction in the work at the
Youngstown facility . The dollar amount of new orders
to be filled fell from $700,000 at the end of April 1988 to
$300,000 as of the end of June 1988. The dollar amount
of the total backlog at the end of April 1988 was $1.2
million but only $632,000 at the end of June 1988.
Respondent clearly established a justification for the
layoffs . Subsequent to the July 1988 layoff of seven em-
ployees-four of whom are discriminatees-there was
another layoff of three to five employees in October
1988. A couple of those employees laid off in October
1988 were recalled but none of the employees laid off in
July 1988 have been recalled.
No new employees were hired to replace the employ-
ees laid off in July 1988 or October 1988 with one excep-
tion , i.e., a new painter was hired to replace a painter
who quit his employ after the July 1988 layoff. A new
person was hired because of the need , according to Re-
spondent, for an expert painter . None of the employees
laid off in July 1988 was an expert painter.
David Brashears , the president of General Combustion
Corporation, and his superior, Mike Elliott, from Gener-
al Combustion Corporation 's parent, concluded after re-
viewing sales backlog reports that a layoff was necessary
at the Youngstown facility.
On 5 July 1988 Brashears called John Miller, general
manager at Youngstown , and told him that based on the
size of the backlog of orders 7 to 10 employees should be
laid off. He did not give Miller a firm timeframe in
which to make the layoffs . Miller told Brashears that he
wanted to wait for James Brown, plant superintendent,
who was more familiar with the individual employees, to
return from vacation on 8 July 1988 before he did any-
thing . Brashears said fine.
On 8 July 1988 Brown returned from vacation and
Miller told him about Brashears ' call and that he should
select 7 to 10 employees for layoff.
Brashears testified that the policy on layoffs is to keep
the best workers and lay off those you can most afford
to lose . Brown said that was his understanding of the
layoff policy as well.
Following his conversation with Miller, Brown met
with his two foremen, Orien Ramsey and Ray Hall. The
three men met for about an hour and went through a
copy of the latest payroll summary sheet which con-
tained the names of the 45 employees from whose
number the employees selected for layoff would come.
They selected seven employees to be laid off.
Brown , Ramsey, and Hall credibly testified that in de-
ciding who to layoff they did not consider , discuss, or
give any weight to any union sympathies or activities of
the employees selected for retention or layoff. The word
union did not even come up in their discussions.
In deciding whether or not an employee has been dis-
criminated against in violation of the Act there must be
evidence that the employees engaged in union or other
protected concerted activity and that the Employer
knew about it.
All four discriminatees, Robert Burkholder, Ray
Cartel , Joseph Rios , and Robert Johnson did engage in
union activity and protected concerted activity.
Robert Burkholder, as early as the spring of 1987,
talked with some of his fellow employees about starting
a union . He testified he told Brown about the talk of or-
ganizing around the plant and told Brown that he was
not in favor of bringing in a union . Burkholder claims
that Brown asked Burkholder to tell him the names of
those employees interested in starting a union. Burk-
holder refused to give him any names . This testimony
was introduced to show antiunion animus and is not al-
leged as violative of the Act since outside the Section
10(b) period. Brown testified that Youngstown was a
strong union town and that he heard rumors from time
to time that employees were interested in starting a
union . If any employee mentioned it to him and they did
from time to time-his stock answer was to the effect
that he (Brown) didn't think the employees needed a
union but if they wanted to try to organize go ahead and
do it . I credit Brown.
Burkholder testified there was more talk of a union in
late 1987 or early 1988 and in July 1988. He and Robert
Johnson discussed whether the employees should join
the Steelworkers or the IUE (charging party in this
case). Burkholder said he thought the employees should
vote on what union to bring in to represent them. Burk-
holder and Johnson asked fellow employee Joe Monoski
if he wanted to be a union officer . He agreed. I note that
Joe Monoski was not laid off.
On 8 July 1988-the day of the layoff-Burkholder
says he spoke to Brown and told Brown that he (Burk-
holder) was in favor of bringing in a union. He claims
Brown asked him who else wanted to bring in a union.
According to Burkholder, he was told by Brown to stay
out of the Union and that he (Brown) knew of employ-
ees who were not in favor of unionization . If I credit
Burkholder 's testimony about this conversation, then
Brown's remarks constitute an implied threat in violation
of Section 8(axl) and also would create in Burkholder's
mind that the union activity of the employees was under
surveillance by management which is also violative of
Section 8(a)(1) of the Act. However , I don't credit Burk-
holder. I credit Brown who admits that Burkholder did
come to him on 8 July-he isn 't sure if it was before or
after Burkholder and the others were selected for layoff
but thinks it was afterwards-and told him that employ-
ees were interested in starting a union and he (Burk-
holder) was asked to be an officer but they weren't sure
which union they wanted to join . Brown said that he
didn't think they needed a union but they could do what
they felt they had to do. Since I credit Brown's version
of this conversation, I conclude that the Act was not vio-
lated.
Ray Carter discussed forming a union with several
fellow employees in June 1988. The other employees he
GENERAL COMBUSTION CORP.
discussed this matter with included three of the discri-
minatees , Burkholder , Rios, and Johnson and two other
employees , Joe Wilson and Joe Monoski . Wilson was not
laid off in July but was laid off in October 1988 but later
recalled . Monoski was never laid off. On a couple of
other occasions Carter talked about the union with
Robert Johnson . There is no direct evidence that the Re-
spondent was aware of Carter 's minimal union activity.
Joseph Rios talked about starting a union with Robert
Johnson in March 1988. He thereafter spoke about the
union with a fellow employee named Emery but he
couldn 't remember Emery's full name . He also spoke
with Joe Wilson about the union . There was no direct
evidence that Respondent knew of Rios' union activity.
Robert Johnson talked about bringing in a union with
fellow employees in March or April 1988. Johnson spoke
with Brown at one time because he heard from Joe
Wilson (who was not a witness) that Brown had asked
Wilson if Johnson was starting a union organizing effort.
On this occasion Johnson told Brown that he was satis-
fied without a union . According to Johnson, Brown's re-
sponse was that it didn 't matter to him if the employees
wanted to be organized or not. Just prior to the 8 July
layoff Johnson discussed bringing in a union with five
other employees , i.e., the other three alleged discrimina-
tees, Burkholder, Carter, and Rios, and two other em-
ployees, Joe Monoski and Al James . Neither Monoski
nor James were laid-off.
All discussions about the union referred to above took
place at work . Brown admitted he heard about union
talk among the employees from time to time and the
work force was small-only 45 employees-and it ap-
pears likely, based on the inference one can draw from
"the small plant doctrine," that Respondent was aware
that all four alleged discriminatees had shown some in-
terest in forming a union . Coral Gables Convalescent
Home, 234 NLRB 1198 (1978).
As noted above Superintendent Brown and Foremen
Ramsey and Hall selected seven employees to be laid off.
Brown thereafter discussed who was to be laid off with
General Manager John Miller and President David Bra-
shears and Miller and Brashears concurred in the judg-
ment of Brown , Ramsey, and Hall.
There was no evidence that three of the persons se-
lected for layoff, i.e., Brian Bizub , Charles Cycyk, and
Michael Rotunno, were, in any way, involved in union
activity but there was evidence that three other employ-
ees, Joe Monoski, Joe Wilson , and Al James were in-
volved in union activity and were not laid off.
Burkholder , Carter, Rios, and Johnson did not have
bad work records . But there is no evidence that persons
with worse records were not selected for layoff with one
possible exception , i.e., Thomas Gordon . Gordon, prior
to the July layoff, had a tardiness problem . He was not
laid off and because his tardiness problem continued he
1105
received a written writeup for it some 12 days after the 8
July 1988 lay off.
Prior to the layoff Burkholder had been verbally repri-
manded for poor work and tardiness . In addition, he had
received a written writeup for returning from lunch with
alcohol on his breath or his very first day on the job.
Carter's record was better than Burkholder's record
but his foreman, Ray Hall , referred to him as only a
"fair" worker.
Rios had a pretty good work record, however, he
admits he had once threatened to hit his foreman, Orien
Ramsey, when they got into an argument at work. Rios
looked several years younger and more physically fit to
me at the hearing than Ramsey did.
Johnson 's record was also pretty good except that he
had a reputation for being somewhat dissatisfied with
whatever his current job was and was noted for saying
he wanted to transfer jobs.
Brown, Ramsey, and Hall selected the seven employ-
ers for layoff-to include the four alleged discrimina-
tees-based on workmanship , attitude , performance, and
absenteeism . In doing so they obviously considered how
these employees compared with their fellow employees
in the particulars above noted . In the absence of evi-
dence that other employees not selected for layoff were
worse than those selected for layoff and in light of the
fact that I credit Brown, Ramsey, and Hall that union
sympathy or activity played no part in the selection
process, I conclude that the four alleged discriminatees
were not laid off in violation of Section 8(a)(1) and (3) of
the Act. I note here that I credit also the testimony of
John Miller and David Brashears.
CONCLUSIONS OF LAW
1. Genco/Hy-Way Division of General Combustion
Corporation is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. International Union of Electronic, Electrical, Sala-
ried, Machine and Furniture Workers, AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the Complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The complaint is dismissed in its entirety.
' If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.