K-C Machine & Tool Co.

National Labor Relations Board - Board Decisions

Feb 29, 1984

268 N.L.R.B. 1474 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K-C Machine & Tool Company and Raymond
Marah. Case 7-CA-20643
29 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 14 July 1983 Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
Charging Party filed exceptions in the form of a
letter with attached affidavits.'
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 exceptions2 and has decided
to affirm the judge's rulings, findings, and conclu-
sions and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, K-C Ma-
chine & Tool Company, Detroit, Michigan, its offi-
The Charging Party has excepted to the judge's conclusion that his
discharge was not in violation of Sec. 8(aX3) of the Act. we find it un-
necessary to decide whether or not his exceptions are drafted with suffi-
cient specificity to satisfy the requirements of Sec. 102.46(b) of the
Board's Rules and Regulations because we find them without merit in
any event. Chairman Dotson would disregard the "exceptions" because
they do not comply with Sec. 102.46(b). Cf. Fiesta Printing Co., 268
NLRB 660 (1984).
2 No exceptions have been filed to the judge's conclusion that by inter-
rogating employees concerning the signing of union cards and by threat-
ening to close down its business in retaliation for union activities, the Re-
spondent has violated Sec. 8(aXl) of the Act.
a In support of his exceptions, the Charging Party has requested that
the record be reopened to include the testimony of four additional wit-
nesses. In a motion to reopen the record, the movant must state briefly
"the additional evidence sought to be adduced, why it was not presented
previously, and that, if adduced and credited, it would require a different
result. Only newly discovered evidence, evidence which has become
available only since the close of the hearing, or evidence which the
Board believes should have been taken at the hearing will be taken at any
further hearing." National Labor Relations Board Rules and Regulations,
Sec. 102.48(dXl). We hereby deny the motion as to the three individuals
from whom the Charging Party obtained post-hearing affidavits because
there is no showing that they were unavailable to testify at the time of
the hearing, are newly discovered, or that any other circumstance exists
which would warrant reopening the record under Sec. 102.48(dX1). For
the following two reasons, we also deny the motion as to the intended
witness who could not be located at the time of the hearing because she
had moved without leaving a forwarding address. First, simply because
the Charging Party's efforts to find this individual during the week prior
to the hearing were unsuccessful does not render her unavailable within
the meaning of Sec. 102.48(dXl). Second, the Charging Party contends
that the proffered witness' explanation of a contradiction in company
records will corroborate his testimony that his employer arbitrarily
changed his seniority date to provide a pretext for laying him off for his
union involvement. A careful reading of his filing reveals that this is
mere speculation. We cannot determine what the evidence sought to be
adduced will actually be and, thus, if it will shed any light at all on the
issues in this case.
268 NLRB No. 229
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCI, Administrative Law Judge: A hear-
ing in this proceeding was held at Detroit, Michigan, on
May 18, 1983, on complaint of the General Counsel
against K-C Machine & Tool Company, the Respondent
or the Company. The complaint issued on June 24, 1982,
based on a charge filed on May 10, 1982, by Raymond
Marah, the Charging Party. The principal issue of the
case is whether Marah was discharged by the Respond-
ent in violation of Section 8(a)(3) of the Act. Briefs were
filed by both parties.
On the entire record and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
In the city of Detroit, Michigan, the Respondent is en-
gaged in the precision boring and milling of parts for
other companies. During the year ending December 31,
1981, a representative period, in the course of its business
it manufactured, sold, and distributed from Detroit prod-
ucts valued in excess of $50,000 which were shipped to
points outside the State. I find that the Respondent is en-
gaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Case in Brief
The substantive issue of this case centers on the layoff
of a machine operator: Was he chosen for release be-
cause of his known union activity, or was he laid off
solely because he had the least seniority in the group
when there was an absolute economic necessity to
reduce the staff? There are other allegations of violations
of Section 8(a)(1) of the Act-threats to close down the
business, interrogation of employees, etc. But these are of
minor importance here because it was stipulated that the
prounion campaign at the time of the events succeeded,
and led to a binding contract which was in effect at the
time of the hearing. An election petition was filed with
the Board on February 23, 1982, an election was held on
April 22, the Union won, objections were filed by the
Employer, and the Union was certified by the Board on
September 16. A contract was then signed.
Raymond Marah, the operator involved here, filed a
charge on May 10, saying his layoff on April 29, 1982,
constituted a violation of Section 8(a)(3) of the Act. The
Respondent contends he was first at the top of the list of
operators who had to be laid off because he had the least
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K-C MACHINE & TOOL CO.
seniority of all. Marah had worked for this Company, on
and off, since 1963. It is a common occurrence in this
plant for employees to quit at times, work elsewhere, and
then return. When they do that, their seniority always
starts anew on the day of return. Marah had left the
Company a number of times, and always his seniority
date had been reset as of the day of his return. At the
start of 1981, Marah had been working continuously at
the Respondent's plant since 1976. Then, in June 1981,
he went to work for a company called Viking Tool,
closer to his home, for more money, and with a promise
of promotion to supervisory status. He did this without
telling anyone in management, at the start of an unan-
nounced vacation he was entitled to. Did he quit his em-
ployment with the Respondent that day, as his employer
now contends, so that he became an operator with much
less seniority 11 months later when a layoff became nec-
essary? Restated: Did the Respondent have a right to
treat him as a new hire when he quit his new job at
Viking, and chose to return here? That is the real ques-
tion to be decided in this case.
B. Violations of Section 8(a)(1)
In early February 1982 the employees started signing
union authorization cards; according to Marah's testimo-
ny all but two had signed cards by February 15. By
letter dated that day the Union advised the Respondent
of its majority claim and demanded recognition. The rep-
resentation petition resulted. On February 18 Al Kacy,
the president and owner of the business, met first with
the day-shift and then with the night-shift men, and told
them there would be a 7-1/2 percent reduction in pay
because the Company was in bad straits and losing
money. More than one employee spoke up to protest.
One of them, Marah, testified he told the manager that
day he would go to the Labor Board to inquire whether
the drop in pay was lawful.
Marah also testified that the next day, February 19,
Kenneth Kacy, the general manager, called him at home
to tell him he was being laid off. "He told me that I was
laid off due to a lack of work, a slowdown, and he was
going to have to cut back on the night shift and I was
the first one to go and that I didn't understand about the
wage concessions and he had to get rid of me." Marah's
response was only to ask could he have a layoff slip; he
was told to pick it up on Monday. On Monday, still ac-
cording to Marah, Ray Williams, the plant superintend-
ent, gave him his layoff slip, it read:
Due to the current economic conditions, we are
forced to institute immediate layoffs. We hope that
soon, the economy will begin to improve, and we
will therefore be able to call our laid off employees
back to work.
In this conversation, with Williams repeating that the
layoff was because of lack of work, Marah said: "If you
read between the lines, it is because I was behind orga-
nizing the Union here and I had people sign cards."
When Williams asked how did Marah know that Wil-
liams knew of Marah's union activity, the employee said
because another employee, Scott, had told Marah that
Kenneth Kacy asked what did he think were the chances
of the union campaign succeeding. With this, Marah said
he would "go to the Labor Board" about it. Williams
then consulted with someone on the telephone and told
Marah he could continue at work as usual. Marah
worked that night, his regular shift, and then just took
off for the rest of the week on his own for personal rea-
sons. He never lost a moment's work.
I make no finding that the Respondent that day com-
mitted an unfair labor practice because it "decided
upon"-but did not-lay Marah off, as alleged in the
complaint. It did not hurt him at all, and all the supervi-
sor said was he was being laid off for lack of work.
Unfair labor practices are not "read between the lines,"
in such a situation. It was the employee who first spoke
about union activities in that conversation. And if, when
considering Marah's implied threat to accuse the Compa-
ny of wrongdoing, the Respondent chose to avoid any
kind of legal dispute, by taking back the layoff slip, it
acted correctly, rather than unlawfully.
Marah continued to testify that when he returned, a
week later, Al Kacy, the owner, talked to him at his
workplace. "He told me that he knew I was behind it
and he wanted to know how many people had signed
cards and I wouldn't tell him. He told me did I
want to see the men lose their jobs, and I said no. He
said, 'Well, if the union comes in, they will, and we'll
close the shop down . . . We will all lose our jobs. Do
you want that? . . . I don't need this. I don't want a
union in here. I'm not going to have it. Anything but a
union."'
James Gordon, also an employee, testified that in early
March Al Kacy asked him also had he signed a union
card and he answered, "Yes." Another employee, John
Ursul, also testified he had a number of talks with the
owner of the Company that same day late in February or
early March. "He walked up to me and asked me if Ray
Marah had approached me to sign a card? . . . I told
him, 'What does it matter?' He said, 'Did you sign a card
with Ray Marah?' I said, 'It's really none of your busi-
ness, leave me alone,' and he got insistent and he said,
'Did you sign a card?' I said, 'Yes, I did.' . . . He went
down to say, 'What did you do this for? What do you
think it's going to give you? Why do you have to do this
to me. You don't have to do things like this, I don't need
this . . . I can close the shop. You could lose your job.
We'll all be standing in the unemployment line.' This
went on for 45 minutes."
Al Kacy, testifying for the defense, did not directly
contradict this testimony about his interrogation of em-
ployees and threats to close the entire business down in
retaliation. He spoke of conversations with Marah,
giving different versions of their talk. Perhaps his pur-
pose was to deny having made the threats and asking im-
proper questions, but this is not what he actually did on
the stand. Certainly he did not contradict the testimony
of Gordon and Ursul. In any event, even if Kacy intend-
ed, by his oblique testimony, to contradict the others, I
do not credit his intended denials. He was not a convinc-
ing witness on the subject of his union talks.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For example, at one point he said he had a talk with
Marah about March 5. From his testimony: "He said he
had to do this because they cut our wages 7-1/2 percent.
I said, pretending that I didn't know what it was all
about, 'Doing what?' He said, 'Well, we had to settle this
because they were segregating us out and cutting our
wages 7-1/2 percent and we just had to do something."'
By this time Kacy had received the Union's demand
letter of February 15, and he certainly must have known
about Marah's telling Williams about his union activity.
It follows he knew what he was pretending not to know,
and it is that Marah was talking union with him. This
sort of evasive testimony will not do. It appears again in
his continuing testimony:
Q. You had a conversation in March of '82 with
Ray Marah about the union, right?
A. Yes.... The first time around the 5th of
March or thereabouts. The second time I would say
about the 25th or 24th of March. ... He told me
that they had to do it, whatever they meant by 'it,'
because we cut in the wages of 7-1/2 percent; that
they had to do it for economic reasons ...
Q. Did you know at that time that he was in-
volved in the union?
A. No.
Q. In March?
A. Not just then yet. In a few days I did, but not
just then yet.
There can be no question but that Kacy knew what "it"
was when talking to Marah. To say he did not know
then that the man was involved with the Union did not
enhance his testimony.
I find that by Al Kacy's questioning of Marah as to
how many people had signed union cards, by his state-
ment that he would close the plant to stop the prounion
campaign, by his interrogation of Gordoni as to whether
he had signed a union card, by his like questioning of
Ursul, and by his repeated statements to Ursul that he
would close the plant before having a union there, the
Respondent violated Section 8(a)(l) of the Act.
C. Seniority
On April 27 the Company posted a notice on the plant
bulletin board announcing that on April 29 four employ-
ees would be laid off, and on April 30 two more, "Due
to lack of work." The six names were listed in order of
their accumulated seniority-the one with the least se-
niority at the top and the one with the most being last on
the list of six names. Marah's name was second on the
list, and he was in fact laid off on the April 29. The first
man-Gordon-was laid off 3 days later, on May'2. The
management witnesses explained this as necessitated by
surprise changes in orders from purchasers of its prod-
ucts. Michael Gaddes, Stanislaw Rusnak, and Harry
Wills, third, fourth, and fifth on the seniority list, were
not laid off until June 30, also because, according to un-
contradicted testimony, unexpected work had to be fin-
ished.
That massive reduction in the employee complement,
far more than half the total group, was necessitated by
the decline in the volume of work is not disputed. Indeed
there are company records received in evidence by stipu-
lations which prove the fact beyond question. Absent
any issue on the point-economic necessity for the lay-
offs-there is no need to burden this record with its de-
tails. The theory of illegality in the placement of Marah's
name on the posted layoff list is based solely on the as-
sertion that his true seniority at that moment went back
to 1976, long before the seniority date of the other five
men scheduled for layoff then. Marah had returned to
work here, after an earlier quit, in 1976. At the end of
June 1981 he accepted a job at the plant of a competitor
of the Respondent. On the layoff slip posted the follow-
ing April his seniority date is given as July 1981, when
he came back again after leaving the competitor to work
here for the Respondent. Is it true the Respondent gave
Marah a new seniority date to create a pretext to cover
its illegal purpose of getting rid of him because he was
active in the pro-UAW drive? I think not.
Months before the summer of 1981 Marah learned
from a friend, Lewis Vidra, vice president of a company
called Viking Tool, that that company was going to ac-
quire new machines designed to produce the same prod-
ucts Marah worked on for the Respondent. Vidra told
him he would consider hiring Marah as a supervisor
when that happened. Three weeks before June 22, 1981,
Vidra told him the new machines were about to arrive
and that he wanted Marah to come to his company.
After learning this, Marah told Kenneth Kacy, son of the
owner, he was going to take a vacation at an uncertain
date in the near future, but was not sure just when; he
asked to be paid his vacation pay already earned in ad-
vance. He explained the precise date for his vacation
would be determined by the arrival of his father from
Florida, a date he was not certain of. The Company
gave him the money-$840 on May 10 and $840 on May
24-each payment the equivalent of 1-1/2 weeks' pay.
Marah then again heard from Vidra, telling him the new
machines had arrived.
On the last of his scheduled workdays the week of
June 19, he took his tools with him when he left the
plant, and the following Monday morning, June 22, re-
ported for work at the Viking Company. He filled out an
"Application for Employment," on which he listed,
among other things, his "former employer" as K-C Ma-
chine and Tool Company. He was paid 40 cents per hour
more than he had been earning at the Respondent.
By 9 a.m. Monday, Al Kacy had learned where Marah
was and what he was doing. There is conflicting testimo-
ny as to just how he learned, exactly who told him, but
that question is of no moment at all. Kacy arrived at the
plant very early in the morning, as he usually does, saw
Marah's toolbox empty and his machine unattended
when it should have been producing. This much cannot
be doubted, for Marah admitted that when he went off
"on vacation," he did not tell anybody he was not going
to be in on Monday. It ended with Kacy telephoning the
Viking Company and hearing Vidra, whom he knew, tell
him Marah had quit K-C Tool and accepted permanent
employment at Viking. Kacy became very angry, even
faulting Vidra for stealing employees from a competitor.
1476
K-C MACHINE & TOOL CO.
In fact, Vidra defended himself from that charge by re-
peating that Marah had voluntarily quit his old job to
accept a new one.
I find it unnecessary to decide the credibility question
between Carol Marah, the employee's wife, and Jannie
Roger, the Respondent's office comptroller, who said she
telephoned Marah's house and learned from his wife that
he had quit and gone to work at Viking. The lady insist-
ed, at the hearing, she only said she did not know where
her husband was that day. She was corroborated, ac-
cording to the General Counsel, by her husband, who
testified he told his wife to keep the matter secret. Were
I to believe him, it would put his total position in this
case in a still poorer light. If, as he kept repeating at the
hearing, a man has an absolute right to do as he pleases
when on vacation, why did he feel he had to conceal
from his Employer the fact he went to work for a com-
petitor? Mr. Marah was not a convincing witness.
For reasons which were not made clear Marah re-
turned to the Respondent's plant to work after doing
only I week at Viking, although his planned vacation-
as he himself noted on the wall calendar in the plant
before leaving-was supposed to be for 3 weeks. He
made no mention of his father ever arriving from Flori-
da. Despite a disagreement between Al Kacy and his
son, the Respondent decided to take him back.
Holding in abeyance the question whether it was right,
objectively and entirely apart from any union sentiment,
for the Respondent to deem Marah a new employee
when he returned to work in June 1981, it is important
to note the fact that the Company made the decision to
start his seniority anew long before there was any union
activity by anybody in the plant. The defense witnesses
said clearly they established, and recorded, his new se-
niority date as of early July 1981. Marah repeatedly
spoke to the contrary, but there is much in his testimony
indicating he was told, back in 1981, he had lost his ac-
cumulated seniority. For example:
Q.... You did come back to work for Kacy?
A. Yes.
Q. Were you required to fill out a new applica-
tion?
A. No.
Q. Did the Company give you any memorandum
telling you that you had lost your seniority because
you had quit?
A. No.
Q. Did anyone tell you verbally that you had
quit, a member of management at that time?
A. Yes, Al Kacy, that as far as he was concerned
I had quit.
Continuing his questioning of the witness, the General
Counsel then had him change his testimony by asking:
Q. Is that when you returned to work? I'm talk-
ing about when you returned to work now after
your vacation.
A. No.
Q. Nothing verbally was said to you?
A. No.
After he had worked the full day at the Viking Compa-
ny, and after learning of the Respondent's resentment of
his having gone with a competitor, Marah went to the
home of a fellow employee, Scott, that night. Again
from his direct testimony:
Q. Would you briefly tell the Court the essence
of that conversation?
A. I told him that I hadn't quit. I couldn't under-
stand why he [Al Kacy] would say that I quit. I
had a notation marked on the calendar when I was
going to leave on vacation and return. I would
come back to work for him after the 3 weeks were
up. Please tell him I haven't quit and I'll be back.
He [Scott] said he would relay the message to him
[Al Kacy].
Toward the end of the week, all of which he spent
working for Viking, Marah came to the plant and talked
to both Kenneth and Al Kacy. Quoting Al Kacy: "He
told me that he didn't like it because I went to work at
Viking working for a competitor of his while I was on
vacation, and as far as he was concerned I had quit. If I
was going to do any work at all in the industry I should
do it for him and not do it for his competitor and if I
wanted to work on my vacation and work a few days
throughout the following weeks in his shop."
When he saw the posted list of employees to be laid
off on April 27, 1982, with his seniority starting only in
July 1981, Marah went to talk to the comptroller about
it, to argue against such limited seniority. He spoke to Al
Kacy instead that day in the office. Again from his testi-
mony:
Q. Al Kacy told you it was because you had 10
months' seniority?
A. Right, and he was the one that wrote the list
out. It was in his handwriting.
Q. Was that the first time that you were aware
that you had only 10 months seniority?
A. No, he had made me aware of that before. He
told me that before.
With all this from Marah himself, direct admission that
he had lost his seniority in 1981, I must credit the testi-
mony of Al Kacy that when Marah returned to work at
his place, he, Kacy, told him, "It's too bad you lost your
seniority." I also credit the testimony of comptroller
Rogers, with whom Marah also had a talk on his return.
"He came upstairs and he asked me if I knew he had
been rehired and I said no. He said, 'The old man . . .
meaning Al Kacy . . . hired me.' He said, 'I wanted to
make sure that you know and I was rehired at the same
rate I had which was $14.' I said, 'all right, I will check
with him,' and I put it down on the payroll record. He
was concerned because the man that we had hired to re-
place him was making $2 less an hour than he was. He
also wanted to check and see about the Blue Cross be-
cause he had quit, would there be a lapse in the Blue
Cross coverage, and I explained that there would not be
because in this particular case his coverage could not
have ended until the 28th of the month by our contrac-
tual terms with Blue Cross. Because he was going to be
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed prior to that date, he would be a new employ-
ee but he would still be covered and there would not be
a lapse of his insurance."
Marah was recalled as a rebuttal witness after Rogers
had testified. He did not contradict her story about his
concern when he was rehired. What better proof could
there be that he knew, when returning from the Viking
Company, he was being hired as a new employee? An
employee on vacation is not in danger of losing his insur-
ance coverage. With this, I also find reliable an entry
noted on his record saying he was "rehired 7-3-81."
I find that the Respondent laid off Marah because eco-
nomic necessity demanded it, that it chose him solely on
the basis of seniority, that it would have acted as it did
regardless of any of his other activities, and that the evi-
dence in its entirety does not prove any illegal motive. I
shall therefore recommend dismissal of the complaint as
to him.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce
among the several states, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
i. By interrogating employees concerning the signing
of union cards by themselves or by other employees, and
by threatening to close down its business in retaliation
for the union activities of its employees, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
2. The above-described unfair labor practices affect
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 recommended
ORDER1
The Respondent, K-C Machine & Tool Company, De-
troit, Michigan, its officers, agents, successors, and as-
signs, shall
I f 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.
1. Cease and desist from
(a) Interrogating employees concerning their activities
in signing union cards or the activities of other employ-
ees in signing union cards.
(b) Threatening to shut down its business in retaliation
for the union activities of its employees.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Post at its Detroit, Michigan place of business
copies of the attached notice marked "Appendix."2
Copies of the notice, on forms provided by the Regional
Director for Region 7, after being signed by the Re-
spondent's representative, shall be posted by the Re-
spondent immediately upon receipt and maintained in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by it to ensure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
s 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
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, after a
hearing, that we committed unfair labor practices under
the Federal Law.
WE WILL NOT interrogate our employees concerning
their signing union cards or the activities of other em-
ployees in signing union cards.
WE WILL NOT threaten to shut down our business in
retaliation for the union activities of our employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the National
Labor Relations Act, as amended.
K-C MACHINE & TOOL COMPANY
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