Oklahoma Fixture Co.

National Labor Relations Board - Board Decisions

Aug 31, 1994

314 N.L.R.B. 958 (N.L.R.B. 1994)

958
314 NLRB No. 159
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings. 2 All dates are in 1992 unless otherwise indicated.
Oklahoma Fixture Company and International
Brotherhood of Electrical Workers, Local
Union No. 584, AFL–CIO. Case 17–CA–16206
August 31, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On April 12, 1993, Administrative Law Judge Bruce
C. Nasdor issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed an answering brief.
The National Labor Relations Board has 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 only to the extent consistent with this Deci-
sion and Order.
1. The judge found that the Respondent did not vio-
late Section 8(a)(1) by threatening employee Richard
Gill with discharge. The General Counsel has excepted
to this finding. For the reasons stated below, we con-
clude that the Respondent’s conduct violated Section
8(a)(1) of the Act.
In February 1992, Gill asked Superintendent Jerry
Wallace when the Respondent would begin making in-
surance contributions on his behalf because he had
heard that contributions were being made for other em-
ployees. When Wallace failed to respond, Gill spoke to
employee Ray Creel about the problem. Creel con-
tacted Union Business Manager Tom Quigley, and
Quigley in turn called Vice President Mark Cavins to
ask about Gill’s insurance.
Sometime after Quigley’s inquiry, Supervisor Bob
Fields told Gill that Cavins wanted Gill fired because
of Gill’s inquiry which resulted in the Union’s phone
call to Cavins. Fields told Gill that Cavins was ‘‘really
pissed at you’’ because Cavins had gotten ‘‘chewed
out’’ by Quigley over the late insurance payments and
that Cavins was angry that the Union had gotten in-
volved. Fields warned Gill, ‘‘They want me to fire
you. But you’re too good a worker and I’m not going
to do it. Just stay out of his way.’’
The judge found that Gill’s testimony ‘‘is so amor-
phous and nebulous,’’ that it is not clear that the threat
was intended to discourage union activity. We dis-
agree. We find that Gill’s credited testimony, which
was not controverted by Fields, was not amorphous or
nebulous. To the contrary, we find that Gill’s testi-
mony clearly establishes that Fields warned Gill that a
vice president of the Respondent wanted to discharge
him because the Union inquired about his insurance
payments. Such a warning would plainly tend to dis-
courage Gill from seeking the assistance of the Union.
Under these circumstances, we find that the Respond-
ent unlawfully threatened Gill with discharge in viola-
tion of Section 8(a)(1).
2. The General Counsel has excepted to the judge’s
finding that the Respondent did not violate Section
8(a)(3) and (1) by laying off unit employees following
its decision to subcontract their work. For the reasons
set forth below, we agree with the judge that the Re-
spondent did not violate Section 8(a)(3) and (1).
The facts are fully set out by the judge. In brief, the
Respondent is engaged in the manufacture and sale of
display cases for department stores. Dillard’s is the Re-
spondent’s largest customer and accounts for more
than 95 percent of its revenue. Of the 900 employees
employed by the Respondent, approximately 600 are
currently represented by a union.
From 1986 through March 1991, the Respondent
subcontracted its electrical work to a company named
Webco. In March 1991, the Respondent, seeking more
control over the performance of the work and the di-
rection of overtime, hired its own electricians to per-
form the work. Following an election on November 6,
1991, IBEW Local 584 (the Union) was certified as
the collective-bargaining representative of the Re-
spondent’s electricians. The parties began contract ne-
gotiations in spring 1992.2
During a negotiation session on May 14, the Re-
spondent announced that it was considering the possi-
bility of subcontracting the electrical work. The Re-
spondent explained that it was concerned about its
legal liability in the event an electrical wiring problem
caused damage to Dillard’s property or customers, and
that it wanted to use a subcontractor who would have
insurance to cover such damage. In addition, the Re-
spondent was concerned that in the event an electrical
mishap did occur, it would lose the Dillard’s account
to one of its competitors and be forced into bank-
ruptcy. Further, Cavins testified that he was not knowl-
edgeable about electrical wiring and could not properly
oversee the electrical work being performed by the unit
employees. When the union representative asked if
there was anything the Union could do to help the Re-
spondent out, the Respondent replied that it did not be-
lieve so. The Respondent stressed that although it was
considering subcontracting, no decision had yet been
made. Nonetheless, the Respondent stated that until a
959OKLAHOMA FIXTURE CO.
3 In adopting the judge’s dismissal of the allegation that Super-
intendent Jerry Wallace unlawfully informed employees that they
would be laid off because of their union activities, we rely solely
on our conclusion that the allegedly unlawful statements were not
proven to have occurred within the 10(b) period. Employee Richard
Gill testified that the threats occurred sometime between the Novem-
ber 6, 1991 election and the June 8 layoff. Employee Ray Creel tes-
tified that he had three or four discussions with Wallace between
December and the layoff about ‘‘what would happen in the future,’’
but did not specifically testify as to when the alleged threat of layoff
occurred. The 10(b) period began December 9, 1991. Consequently
there was a period of at least 9 days to 1 month outside the 10(b)
period during which Gill and Creel testified that the statements could
have been made. Accordingly, we adopt the judge’s dismissal of this
allegation. See Howard Mfg. Co., 180 NLRB 220, 221 (1969), enfd.
436 F.2d 581 (8th Cir. 1971).
The General Counsel contends that Wallace made other threat-
ening statements, admittedly outside the 10(b) period, which dem-
onstrate union animus. Employee W. C. Fields testified that Wallace
told him that the employees should drop the organizing campaign
because they would be fired if it passed. Employee Timothy Morris
testified that on several occasions before the election, Wallace
warned him that if the Respondent found out who was organizing
the union campaign, those employees ‘‘wouldn’t be there.’’
Although Wallace’s pre-10(b) statements do not provide a basis
for an unfair labor practice finding, we agree with the General Coun-
sel that they may be used as background evidence throwing light on
the Respondent’s motivation for conduct within the 10(b) period.
Douglas Aircraft Co., 307 NLRB 536 fn. 2 (1992).
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
decision was made, there was no point in going for-
ward with contract negotiations.
By letter dated May 15, the Union requested that the
Respondent provide the Union with information related
to its insurance covering electrical damage. The parties
agreed that this information would be provided at their
next bargaining session on June 8.
On June 8, the Respondent’s attorney called the
Union’s attorney and announced that a final decision
had been made to subcontract the electrical work, to
terminate the bargaining unit the following day, and to
pay the employees wages through the end of the week.
The Respondent also informed the Union that since the
decision had been made, there was no point in holding
the meeting scheduled for later that day. After this
conversation, the Respondent faxed to the Union the
requested insurance information.
The judge found that the Respondent’s decision to
subcontract and lay off employees was based on legiti-
mate business considerations, and was not motivated
by union animus. The judge credited the testimony of
Vice President Mark Cavins that he was genuinely
concerned about legal liability and the risk of losing
Dillard’s business in the event of electrical damage
caused by the Respondent’s employees. The judge
noted that any animus demonstrated by pre-10(b) con-
duct was in the context of the Union’s organizational
campaign prior to the November 6, 1991 election, and
he reasoned that it did not transfer over to the June 9
layoff.
The General Counsel contends that the layoff was
discriminatorily motivated. In support, the General
Counsel contends that certain statements by Super-
visors Cavins, Fields, and Wallace demonstrate union
animus.3 The General Counsel further contends that
the unconvincing nature of the Respondent’s asserted
business justification, coupled with the timing of the
decision, strongly support an inference of unlawful
motive.
Applying the analysis set forth in Wright Line,4 we
find that even assuming arguendo that the General
Counsel made a showing sufficient to support the in-
ference that the employees’ union activity was a moti-
vating factor in the Respondent’s decision to lay them
off, the Respondent has proven by a preponderance of
the evidence that it would have laid off the unit em-
ployees even in the absence of their union activities.
The judge credited Vice President Cavins’ testimony
that he decided to subcontract the electrical work be-
cause he was concerned about legal liability and the
risk of losing Dillard’s business. Cavins explained that
he viewed Webco as a buffer that would insulate the
Respondent from these risks. Cavins also testified that
he was not familiar with electrical wiring and felt that
he could not properly inspect the work of his employ-
ees. By delegating to Webco the responsibility for wir-
ing the fixtures and inspecting the work, the Respond-
ent believed it could lessen its liability risk and pre-
serve its crucial business relationship with Dillard’s.
Under these circumstances, and particularly in light of
the judge’s crediting of Cavins’ testimony, we find that
the Respondent has satisfied its burden under Wright
Line. Accordingly, we shall dismiss this allegation.
3. The judge also found that the Respondent did not
violate Section 8(a)(5) and (1) of the Act by failing to
notify and bargain with the Union over its decision to
subcontract the electrical work. For the reasons set
forth below, we agree with the judge.
As noted above, the Respondent, without notice to
or bargaining with the Union, informed the Union on
June 8 of its decision to subcontract and immediately
lay off the unit employees. The General Counsel con-
tends that under Torrington Industries, 307 NLRB 809
(1992), the decision to subcontract was a mandatory
subject of bargaining because the decision did not con-
stitute a significant change in the nature or direction of
the business, and was simply the substitution of one
group of workers for another group to perform the
same work, at the same facility, under the ultimate
control of the same employer. We disagree with the
General Counsel and find that under the particular cir-
cumstances presented here, the decision to subcontract
was a nonmandatory subject of bargaining.
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 We need not decide how many days’ notice would be required
for a meaningful opportunity to bargain. We find the Respondent’s
1-day notice clearly insufficient. See Willamette Tug & Barge Co.,
300 NLRB 282, 283 (1990).
Because the Union was not afforded adequate notice of the Re-
spondent’s decision, its failure to request effects bargaining on June
8 is irrelevant. See Gulf States Mfgrs. v. NLRB, 704 F.2d 1390, 1397
(5th Cir. 1983) (‘‘Simply put, a union cannot be found to have
waived bargaining when it never had an opportunity to bargain.’’)
In Torrington Industries, the employer laid off em-
ployees and replaced them with nonunit employees
without providing adequate notice to the union or af-
fording the union an opportunity to bargain about the
decision and its effects. The Board found that the em-
ployer’s reasons for its subcontracting ‘‘were not mat-
ters of core entrepreneurial concern and outside the
scope of bargaining.’’ 307 NLRB at 810. The Board
noted, however, that ‘‘there may be cases in which the
nonlabor-cost reason for subcontracting may provide a
basis for concluding that the decision to subcontract is
not a mandatory subject of bargaining.’’ Id. The Board
also stated that it was ‘‘not fashioning a per se rule
that any subcontracting decision that does not involve
a significant change in scope and direction of the en-
terprise is a mandatory subject of bargaining.’’ 307
NLRB at 811.
This case presents the unusual situation to which the
Board was referring in Torrington Industries because
the credited testimony establishes that the decision to
subcontract was based on core entrepreneurial concerns
outside the scope of mandatory bargaining. As dis-
cussed above, the judge credited Cavins’ testimony
that he decided to subcontract the electrical work be-
cause he was concerned about legal liability and the
risk of losing virtually all the Respondent’s revenue in
the event of electrical damage to Dillard’s property or
customers resulting from an improperly wired fixture.
Cavins explained that the subcontractor would serve as
a buffer insulating the Respondent from these risks.
‘‘Labor costs,’’ even in the broad sense of the term
employed by the Board, were not a factor in the deci-
sion. Accepting as we do the credited reasons for the
Respondent’s decision, we find that it involved consid-
erations of corporate strategy fundamental to preserva-
tion of the enterprise. We further find that the Union
had no authority or even potential control over the
basis for the decision. Therefore, we conclude that the
subcontracting decision was outside the scope of man-
datory bargaining and that the Respondent’s failure to
bargain over it did not violate Section 8(a)(5) and (1)
of the Act.
4. The judge further found that the Respondent did
not unlawfully fail to provide notice to the Union and
afford the Union an opportunity to bargain over the ef-
fects of its decision to subcontract on unit employees.
The judge noted that the Union made no demands to
bargain with the Respondent over the effects of its de-
cision and therefore concluded that effects bargaining
was not an issue in this case. We disagree.
Contrary to the judge’s finding, we find that effects
bargaining is at issue here. The complaint alleges that
the Respondent unlawfully failed to bargain about the
effects of its decision to terminate the bargaining unit,
and the General Counsel repeated this allegation at the
hearing. For the reasons stated below, we find that by
failing to give the Union adequate notice and an op-
portunity to bargain over the effects of its decision, the
Respondent has violated Section 8(a)(5) and (1).
The Supreme Court noted in First National Mainte-
nance Corp. v. NLRB, 452 U.S. 666, 681 (1981):
There is no dispute that the union must be given
a significant opportunity to bargain about these
matters of job security as part of the ‘‘effects’’
bargaining mandated by Section 8(a)(5). And
under Section 8(a)(5), bargaining over the effects
of a decision must be conducted in a meaningful
manner and at a meaningful time, and the Board
may impose sanctions to insure its adequacy. [Ci-
tations omitted.]
We conclude that the Respondent did not afford the
Union a meaningful opportunity to bargain about the
effects of its decision when, on June 8, it informed the
Union of its final decision to subcontract work, to lay
off the unit employees the following day, and to pay
them wages through the end of the week. After an-
nouncing these decisions, the Respondent advised the
Union that it did not see any point in further negotia-
tions and canceled the bargaining session scheduled for
that day. On June 9, the unit employees were termi-
nated and paid through the end of the week. Under
these circumstances, we find that the Respondent an-
nounced its decision to terminate the bargaining unit in
a manner that precluded meaningful bargaining over
the effects on unit employees.5
In so finding, we reject the Respondent’s contention
that the Union waived its right to effects bargaining
when it did not request bargaining after the May 14
announcement that the Respondent was ‘‘considering’’
the possibility of subcontracting. The Respondent
stressed at this meeting that no decision had yet been
made and that it was merely considering the possi-
bility.
When relying on a claim of waiver of a statutory
right to bargain, an employer has the burden of prov-
ing a clear relinquishment of that right. NLRB v. Chal-
lenge-Cook Bros., 843 F.2d 230, 233 (6th Cir. 1988).
Under Section 8(d) of the Act, a union’s right to bar-
gain is limited to matters of ‘‘wages, hours, and other
terms and conditions of employment.’’ Thus, a union’s
obligation to request effects bargaining, if it wishes to
exercise its statutory right and avoid waiver, may only
be triggered by a clear announcement that a decision
961OKLAHOMA FIXTURE CO.
6 Compare Swift Independent Corp., 289 NLRB 423, 429 fn. 11
(1988), enf. denied on other grounds sub nom. Esmark v. NLRB, 887
F.2d 739 (7th Cir. 1989) (10(b) period began to run at the closing
of the plants and not when the uncertain plans for the closings were
announced).
7 As a practical matter, the parties cannot realistically be expected
to be able to bargain intelligently in May about the effects of a deci-
sion that was not reached until June. Effects bargaining includes
such topics as severance pay, health insurance coverage and conver-
sion rights, preferential hiring at other employer operations, and ref-
erence letters for jobs with other employers. See Los Angeles Soap
Co., 300 NLRB 289, 295 (1990). It is premature for a union to seek
to bargain over such matters at a time when the employer is stress-
ing that it has not yet made a decision to terminate the employees
the union represents. See Show Industries, 312 NLRB 447, 453–454
(1993) (‘‘Until Respondent notified the Union that effects of some
kind would likely befall the employees, a specific request to meet
could hardly be expected or, for that matter, agreed to.’’).
Once the Respondent made the decision to terminate the unit em-
ployees, the time was ripe for effects bargaining. Under established
precedent, the Respondent then had a ‘‘duty to give pre-implementa-
tion notice to the union’’ to allow for meaningful bargaining. Wil-
lamette Tug & Barge, supra, 300 NLRB at 282. As explained above,
this the Respondent failed to do.
8 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.’’
affecting the employees’ terms and conditions of em-
ployment has been made and that the employer intends
to implement this decision. This obligation is not trig-
gered by an ‘‘inchoate and imprecise’’ announcement
of future plans about which the timing and cir-
cumstances are unclear.6 The Respondent’s announce-
ment that it was ‘‘considering’’ the possibility of sub-
contracting, while at the same time stressing that no
decision had yet been made, is too ‘‘inchoate and im-
precise’’ to give rise to an obligation to request effects
bargaining. Accordingly, we find that the Union did
not waive its effects bargaining right based on the Re-
spondent’s May 14 announcement.7
REMEDY
Having determined that the Respondent has engaged
in unfair labor practices within the meaning of the Act,
we shall order it to cease and desist therefrom and to
take certain affirmative action designed to effectuate
the policies of the Act, including the posting of an ap-
propriate notice to employees. Inasmuch as the Re-
spondent unlawfully failed to bargain over the effects
of its decision to subcontract and lay off unit employ-
ees, we shall order a limited backpay remedy pursuant
to Transmarine Navigation Corp., 170 NLRB 389
(1968). Thus, the Respondent shall pay all affected
employees backpay from 5 days after the date of this
Decision and Order until the occurrence of the earliest
of the following conditions: (1) the date the Respond-
ent bargains to agreement with the Union on the ef-
fects on unit employees of the subcontracting and June
9, 1992 layoff; (2) a bona fide impasse in bargaining;
(3) the failure of the Union to request bargaining with-
in 5 days of this Decision and Order or to commence
negotiations within 5 days of the Respondent’s notice
of its desire to bargain with the Union; or (4) the sub-
sequent failure of the Union to bargain in good faith;
but in no event shall the sum paid to any of these em-
ployees exceed the amount he would have earned as
wages from the dates on which he was laid off or ter-
minated to the time he was recalled or secured equiva-
lent employment elsewhere, or the date on which the
Respondent shall have offered to bargain, whichever
occurs sooner; provided, however, that in no event
shall this sum be less than these employees would
have earned for a 2-week period at the rate of their
normal wages when last in the Respondent’s employ.
Interest on all such sums shall be paid in the manner
provided in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Oklahoma Fixture Company, Tulsa, Okla-
homa, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge because
of suspected or actual participation in activity pro-
tected by Section 7 of the Act.
(b) Subcontracting bargaining unit work and laying
off unit employees without providing the Union with
notice and an opportunity to bargain about the effects
of these decisions on unit employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On the Union’s request, bargain with it over the
effects on unit employees of its decisions to sub-
contract electrical work and lay off unit employees.
(b) Pay the laid-off employees their normal wages
for the period set forth in the remedy portion of the
Decision and Order.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facility in Tulsa, Oklahoma, copies of
the attached notice marked ‘‘Appendix.’’8 Copies of
the notice, on forms provided by the Regional Director
for Region 17, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Counsel for the General Counsel’s unopposed motion to correct
the transcript is granted.
all places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that
the notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten you with discharge because
of suspected or actual participation in activity pro-
tected by Section 7 of the Act.
WE WILL NOT subcontract bargaining unit work and
lay off unit employees without providing the Union
with notice and an opportunity to bargain about the ef-
fects of these decisions on unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on the Union’s request, bargain with it
over the effects on unit employees of our decisions to
subcontract electrical work and lay off unit employees.
WE WILL pay the laid-off employees their normal
wages for the period set forth in the remedy portion
of the Board’s Decision and Order.
OKLAHOMA FIXTURE COMPANY
Constance N. Traylor, Esq., for the General Counsel.
Stephen L. Andrew, Esq. and D. Kevin Ikenberry, Esq., for
the Respondent.
Tom Birmingham, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge. This case
was tried at Tulsa, Oklahoma, on November 30 and Decem-
ber 1 and 2, 1992. The Union filed a charge and an amended
charge on June 9 and July 17, 1992, respectively. On July
17, 1992, a complaint and notice of hearing issued alleging
that Respondent violated Section 8(a)(1), (3), and (5) of the
Act. An amendment to the complaint issued on October 9,
1992. It is alleged that certain supervisors of Respondent
made statements to employees which were violative of Sec-
tion 8(a)(1) of the Act. It is further alleged that Respondent
was motivated by antiunion animus in permanently termi-
nating the entire bargaining unit comprised of employees
who were engaged in performing electrical work, and there-
after subcontracted the electrical work.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs,1 I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent, a corporation with an
office and place of business in Tulsa, Oklahoma, has been
engaged in the manufacture and nonretail sale of store fix-
tures and related products.
During the 12-month period ending July 30, 1992, Re-
spondent purchased and received at its Tulsa, Oklahoma fa-
cility goods valued in excess of $50,000 directly from points
outside the State of Oklahoma.
During the 12-month period ending June 30, 1992, Re-
spondent sold and shipped from its Tulsa, Oklahoma facility
goods valued in excess of $50,000 directly to points outside
the State of Oklahoma.
Respondent is now, and has been at all times material, an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
At all times material, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNIT
The following employees of Respondent constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All electricians and electrician’s helpers who install
electrical wiring in fixtures manufactured by the Re-
spondent at its facility located at 6901 E. Pine Street
and 924 S. Hudson, Tulsa, Oklahoma. Excluding all
other employees, including warehousemen, drivers, car-
penters, painters, office and plant clerical employees,
guards and plant supervisors as defined in the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is engaged in the manufacture and nonretail
sale of custom designed store fixtures, such as showcases
and back islands, for installation in retail establishments
throughout the United States. Respondent maintains a second
plant in Bowling Green, Kentucky. Dillard’s Department
963OKLAHOMA FIXTURE CO.
2 Throughout the record Wallace is spelled ‘‘Wallis.’’
Stores account for at least 95 percent of Respondent’s busi-
ness.
Respondent opened its first plant in Tulsa, Oklahoma, in
1928. For many years Respondent’s employees have been
represented by three labor organizations, Painters, Carpenters,
and the Teamsters unions. At the time of the hearing, Re-
spondent employed approximately 900 individuals: 65 em-
ployees were painters, 500 carpenters, and 7 individuals were
assigned to warehouse duties including driving forklifts.
Recently, Tulsa, Oklahoma, was selected by Respondent
over four other cities for a new plant which will consolidate
all of Respondent’s operations currently performed at the S.
Hudson Street address. The new plant is expected to be oper-
ational some time during the spring of 1993.
The current owners of Respondent are Ron Line, president
and majority stockholder; Duane Walker, vice president re-
sponsible for sales; Larry Bishop, vice president responsible
for the drafting department; and Mark Cavins, vice president
responsible for production.
These individuals purchased Respondent in 1986. Since
then it has grown from 350 employees to nearly 900 employ-
ees with a gross annual income of approximately $52 mil-
lion.
Statements made by Supervisors Killough and Steele were
not alleged in the complaint as 8(a)(1) violations because
their statements fell outside the applicable 10(b) period, or
because their statements were not made to employees. Coun-
sel for the General Counsel avers that their testimony should
be considered as reflecting Respondent’s motivation and
antiunion animus.
James Killough worked for Respondent from January 2,
1990, to February 7, 1992, as its personnel director. Re-
spondent fired Killough for engaging in sexual harassment
and, as a result of such, he testified that he is contemplating
legal action against Respondent.
Killough testified that in the summer or fall of 1990, he
began hearing comments from Vice President Cavins about
the construction of a new facility. Cavins allegedly stated to
Killough that the new facility would not be union when it
opened.
According to Killough, Cavins stated that Respondent
hoped to save money by hiring their own electricians and
that it would also give them some nonunion employees and
in that way Respondent hoped to illustrate that unions were
not needed.
Killough testified further that after the election, which was
held on November 6, 1991, and shortly after the certification,
on about six occasions, Cavins stated that the Union would
not get a contract. This was in the context of discussing col-
lective-bargaining negotiations with the Union. Killough tes-
tified with respect to an alleged conversation which occurred
2 weeks after the election or in late November 1991. Alleg-
edly Cavins entered Killough’s office and advised him that
the official results (the certification) had been received and
that ‘‘they’’ (the Union) was not going to get a contract even
if the Company had to go back to subcontracting electrical
work.
Killough testified that on about three occasions, around the
time of the election, Cavins spoke to him about certain union
adherents. He testified that he recalled Cavins said that he
was going to get rid of them.
He further testified that Cavins said he intended to fire
Tim Morris and W. C. Fields because of their activities on
behalf of the Union. Killough, who participated in the hiring
process with Steele, testified that he was never told to ex-
clude union members during the hiring of electricians.
Charles Steele worked for Respondent from February 11,
1991 to July 22, 1991. Two weeks prior to February 11, he
was interviewed by Cavins and Killough. This is well outside
the 10(b) period.
Steele was hired as the electrical supervisor. He testified
that during the initial interview Cavins stated that the elec-
tricians to be hired were to be nonunion. Cavins, in his testi-
mony, stated that he thought he had said that the unit would
be nonunion. He specifically denied telling any of his super-
visors that the new facility, when finished, and the Respond-
ent moved into it, would be without any unions.
Steele testified that he believed the Company controls
whether or not its employees are represented by a union.
According to Steele, during the initial interview, Cavins
discussed why he had decided to perform the electrical work
in-house. The reason Cavins allegedly gave was that it would
be a tremendous amount of savings. Steele testified that Re-
spondent was concerned with mistakes in the electrical in-
stallations. It wanted people who would not make mistakes
that had happened in the past, referencing a fixture in Texas
that had caught on fire.
Thereafter, Steele interviewed approximately 50 applicants
and hired 15. He assumed that those he ultimately hired were
not active union adherents. The fact is that three of the elec-
trical employees had been former members of the Union.
Steele testified that in approximately June 1991, he had a
conversation with Cavins in Cavins’ office, wherein Cavins
allegedly told Steele that he heard rumors the employees
wanted to go union. Cavins allegedly instructed Steele to
find out who was involved and get rid of them. Steele testi-
fied that he accepted the instructions because when he was
hired he was told to hire nonunion electricians. Steele heard
that an electrician, Walter (W. C.) Fields, was handing out
union authorization cards and he approached Fields to dis-
cuss this. According to Steele, Fields admitted that he was
handing out cards and Steele told him that he had been in-
structed to terminate any employees distributing cards. Steele
agreed to drop the matter if Fields ceased his distribution.
According to Steele he believed that he himself was termi-
nated because he hadn’t fired Fields.
Record testimony reflects that there had been an early
abortive union campaign during the summer of 1991.
Steele testified that he had been fired because of insubor-
dination.
At the hearing, counsel for the General Counsel made a
motion, which I granted, to amend the complaint by the fol-
lowing:
In or about the Spring of 1992, at exact times currently
unknown to the General Counsel, Respondent, acting
through Jerry Wallace2 told employees that employees
would be laid off because of their union activities or
other concerted activities.
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wallace worked for Respondent from March 1, 1991 until
June 7, 1992. He was terminated along with the other em-
ployee electricians when they were permanently laid off.
From March to August 1991, Wallace was Respondent’s
general foreman. After August 1991, he became super-
intendent of the electrical department until he left Respond-
ent’s employ.
Wallace testified that prior to the election, Cavins told him
to circulate among the employees to ascertain how they
would vote. He testified further that immediately after the
election, Cavins instructed him to find out which employees
had voted for the Union and Respondent would terminate
them. According to Wallace he reported Cavins’ comments
to all the employees and told them that they would probably
get fired over it. He testified he had already told the employ-
ees that if they signed a card they would be terminated and
that he told them exactly what Cavins had told him. Wallace
testified that he told employees that if they pursued this thing
(the Union) they probably would be terminated according to
what Cavins had told him (Wallace).
Wallace testified that Cavins told him that Respondent was
building a new building and that when Respondent moved,
it would be completely nonunion.
Wallace testified that shortly prior to the commencement
of negotiations, Cavins asked him what he thought about
forcing employees to furnish their own tools. Wallace alleg-
edly responded that to be fair the employees should only be
required to furnish their handtools. According to Wallace,
Cavins allegedly responded, ‘‘The only thing we’re going to
do when we negotiate it is to piss them off.’’
Wallace, a former member of the Union, while he was su-
perintendent, told at least one employee, Timothy Morris,
that going union would be the best thing for Morris.
Walter C. Fields worked for Respondent from March
through November 1991 as an electrician.
He testified that Steele had questioned him about union
authorization cards during the period of June 1991. He also
testified that during the fall of 1991 Wallace told him that
the employees had to drop the organizational campaign be-
cause they were going to get fired if it passed. Fields testi-
fied that when he was ultimately laid off after the election,
Wallace informed him it was because he was one of the in-
stigators and they wanted to make sure they got rid of the
instigators. Fields was the subject of an earlier charge which
was resolved in an out-of-Board settlement.
Timothy Morris worked for Respondent from May to No-
vember 1991. Morris was also a subject of the previous un-
fair labor practice charge in Case 17–CA–15896 which re-
sulted in an out-of-Board settlement.
According to Morris, approximately 3 weeks prior to the
election Wallace told him that Cavins was ‘‘real mad’’ and
upset with him. Morris testified that Wallace explained that
Cavins had asked who the employee was who had asked so
many questions during a campaign meeting conducted by
Cavins. Morris testified further that on several occasions
prior to the election, Wallace told him that he hated to have
to retrain people to take over Morris’ job because by doing
‘‘what we were doing, if they found out, we wouldn’t be
there.’’ Shortly thereafter, Wallace allegedly told Morris to
be especially observant of any work rules because they were
looking for any reason to get rid of ‘‘us.’’ When Morris was
laid off November 7, 1991, he asked if he had been chosen
because of the union election, and Wallace allegedly re-
sponded affirmatively.
Morris acknowledged that he voluntarily informed Wallace
that he was the one who was soliciting cards for the Union.
Moreover, he testified that he did not have any fear of repris-
als with respect to volunteering this information. Morris also
acknowledged that Wallace told him that going union would
be the best thing for him (Morris). A back-to-work notice to
Morris was introduced into evidence.
Richard Gill was an electrician employed by Respondent
from March 1991 until June 9, 1992, when the unit of elec-
tricians were laid off and the work was subcontracted. Coun-
sel for the General Counsel adduced testimony from Gill to
reflect Respondent’s antiunion animus. Gill testified that on
several occasions before the election, Wallace told him that
if anybody voted for the Union they would be laid off. Wal-
lace allegedly told Gill that Mark (Cavins) said that he would
get rid of whoever voted for the Union. Gill also testified
with respect to a conversation immediately after the election
where Wallace is alleged to have told him that Cavins was
one of the names who voted for the Union. Moreover, ac-
cording to Gill, after the election, Wallace stated they were
going to get rid ‘‘of all the Union so that the new plant
would go non-union’’ because Cavins wanted it that way.
Gill testified further that between the time of the election and
the June 1992 layoff, Wallace informed him that Cavins
didn’t want the Union in the Company and that he (Cavins)
‘‘was going to lay us all off.’’
As the result of a question pertaining to Respondent’s con-
tribution to Gill’s insurance, Quigley, the Union’s business
manager, contacted Cavins.
The following testimony is alleged in paragraph 5(b) of
the complaint as a violation of the Act. Gill testified that Su-
pervisor Bob Fields said that Cavins was ‘‘really pissed at
you.’’ According to Gill’s testimony, Fields stated that
Cavins had gotten chewed out by Quigley because of Gill’s
inquiry about insurance payments. Gill asked why Cavins
was angry and Field explained that it was because Quigley
had called. Gill told Fields he had initially asked Wallace
and hadn’t even contacted Quigley directly. Fields allegedly
responded that it didn’t matter but that next time Mark
(Cavins) comes over, Gill should find some place to hide and
stay out of the way and out of sight. Fields allegedly stated
that ‘‘they want me to fire you.’’ According to the testimony
of Gill, Fields told him he was too good a worker, and Fields
was not going to fire him but he should stay out of the way.
Allegedly the time frame was March 1992.
Ray Creel was employed by Respondent from March 1991
until the layoff of June 1992. Creel testified to alleged con-
versations with Wallace that were both within and outside of
the 10(b) period. He testified that before the election Wallace
told employees on two or three occasions that Cavins would
fire anybody that he caught with union cards trying to have
signed and ‘‘organized.’’ Furthermore Creel testified that two
or three times after the election from December 1991 until
June 1992, Wallace told employees that Cavins said he was
going to ‘‘get rid of all of us for voting in a union.’’ Further-
more, according to Creel, during the same period of time,
after the election, Wallace told employees that Cavins would
not fulfill a contract with them or ‘‘would not have a con-
tract with us.’’ Wallace allegedly also stated that Cavins said
he wasn’t going to have a union wire his fixtures for him.
965OKLAHOMA FIXTURE CO.
Jess Pridgen worked as an electrician for Respondent from
March 1991 until the layoff in June 1992. Pridgen devoted
the bulk of his testimony to alleged conversations occurring
outside of the 10(b) period. He testified that in mid-October
1991, he passed Cavins at the plant. He decided to ask
Cavins how many electricians would be laid off. Cavins al-
legedly responded it depended on the outcome of the vote.
According to Pridgen, the week before Christmas 1991,
while delivering fluorescent lights to the office for replace-
ment, Cavins asked how things were and Pridgen responded
that things were fine and how were things with Cavins.
Cavins allegedly responded, ‘‘Well I got rid of two of the
unionizers. Is there any thing I need to know about?’’
Pridgen allegedly responded that he only intended to ask
Cavins how the day was going. Pridgen testified that Cavins
continued to state that he didn’t know what Pridgen was try-
ing to gain by going union, that the Union didn’t pay him
and they can’t protect him. Furthermore, according to
Pridgen, Cavins stated that if management wanted employees
out of here, you’re out of here. Pridgen said he didn’t care
to discuss the subject further and Cavins made the additional
comment, ‘‘If I have my way about it, there will not be a
union here.’’
Cavins denied the December 1991 conversation with
Pridgen. He testified that he recalled a specific conversation
when Pridgen arrived to change bulbs but averred that
Pridgen suddenly volunteered that he had not voted for the
Union.
Pridgen also testified that around mid-November 1991,
while discussing the subject of a possible contract with Wal-
lace, Wallace told him that he shouldn’t worry about the
matter because there would not be a union when the move
to the new building was made, they were going to be com-
pletely nonunion. Wallace allegedly also told Pridgen that the
employees were wasting time because ‘‘All they’re going to
do is make us mad. They’re not going to bargain with us.’’
Until March 1991, Respondent had always utilized electrical
subcontractors to perform the wiring of the fixtures. Initially,
Respondent used subcontractor Circle L Electric, and then a
company known as Circle Electric. Webco was Respondent’s
most recent subcontractor. In March 1991, Respondent want-
ed to make a change, and desiring more direct control of em-
ployees, it decided to perform the wiring in-house, that is,
to hire its own employees to do the electrical wiring. Labor
costs were not a factor in this decision. Respondent, perhaps
mistakenly, believed that the wiring was a simple process
that could be performed by almost anyone, and that if Re-
spondent had its own electricians it would have better control
if it needed an individual to work overtime and get a fixture
out that night.
Respondent began its in-house wiring with the hiring of
Superintendent Charles Steele. Cavins admits that he told
Steele the electricians would be nonunion. Moreover, Cavins
testified he did not direct Steele to hire either union or non-
union people.
At the time of the hearing in this case, Respondent had
collective-bargaining agreements with the three unions which
were to expire on November 30, 1992. The parties, by agree-
ment, extended all the contracts to December 6, 1992. Effec-
tive December 1, 1992, Respondent and each of the three
Unions representing its employees executed new 2-year col-
lective-bargaining agreements.
There is no history of unfair labor practices on the part of
this Respondent.
Steele interviewed approximately 50 applicants and hired
15 electricians. They were given the same fringe benefits as
all of Respondent’s other nonunion employees with some
minor differences, but basically the benefits were the same
as those given to union employees.
Cavins testified that he was not aware of any organiza-
tional activity by the electricians until the petition for the
election was filed on September 19, 1991. There is no evi-
dence that Cavins had any knowledge of the organizational
activity until he received the petition for the election.
Cavins testified that he did not put on a vigorous cam-
paign to avoid the Union in the electrical unit. When asked
why not, he responded, ‘‘Well, it doesn’t make any dif-
ference to us. We got three unions. Basically, unions make
it easy for me to manage the people out in the shop and it
was, you know, it was just you know, it’s not that big a deal
to me.’’
The election results were 10 votes for the Union and 3
against.
Cavins testified that he did not discuss the identity of the
organizers with any of his supervisors.
Prior to the election, Respondent suffered a reversal in
business, typical at that time of year because department
stores do not want remodeling work performed during the
Christmas sales season. As a result, it was forced to lay off
approximately half of its painters and carpenters. The layoff
of electricians was delayed until the day after the election so
that the individuals could be given an opportunity to vote.
After the election, five electricians were selected by Super-
visors Wallace and Killough for layoff.
As the result of this layoff, unfair labor practice charges
were filed, which culminated in an out-of-Board settlement.
In early January 1992, the Union, by its attorney, Thomas
F. Birmingham, commenced collective bargaining with Re-
spondent and its attorney, Stephen L. Andrew. After some
back and forth phone conversation between these two attor-
neys, the Union submitted a contract proposal in February
1992.
On March 9, 1992, the parties attended a collective-bar-
gaining session, at which the Union proposed terms which
were different from those already in existence in the contract
between Respondent and the Carpenters, Painters, and Team-
sters Unions. Respondent found the Union’s proposal unac-
ceptable because Respondent negotiated contracts with all its
Unions simultaneously with each having virtually identical
terms. The Carpenters, Painters, and Teamsters Unions share
the same holidays, vacation benefits, pension benefits, and all
terms and conditions of employment. The union employees
are also all under the same pension plan. Respondent arbi-
trates with the Unions.
The next meeting between the parties took place in April
1992. Respondent continued to adhere to its position that
noneconomic items must be identical to those in its other
collective-bargaining agreements with the other Unions, in-
cluding the expiration date. At the next meeting on May 8,
1992, the Union announced that it would agree to Respond-
ent’s position regarding the noneconomic items. According to
Birmingham, the Respondent, on hearing this, was pleased
and expressed its appreciation. The only items left were job
descriptions and the pay rates. A new date was set to nego-
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tiate the final items. Before the contract was finalized, Re-
spondent decided to return to subcontracting its electrical
work because of risks it deemed unacceptable in doing the
wiring itself. This, the Company asserts as its defense. Al-
though Respondent assumed direct control of the electrical
work, Cavins testified that it continued to experience the
same type of problems with the electrical wiring of its fix-
tures that it had experienced when the work was subcon-
tracted. Some of these problems were that wires melted be-
cause of improper wiring and there were small fires inside
some of the fixtures, according to Cavins. Cavins testified
that he also began to realize that the wiring was not as sim-
ple and uncomplicated as he previously considered it, par-
ticularly in view of the numerous state and local codes which
had to be complied with. Cavins testified that the manage-
ment of Respondent, including himself, lacked personal ex-
perience and knowledge of electrical wiring, although Cavins
was knowledgeable with respect to the other processes that
went into manufacturing the fixtures.
As the result of these questions, Cavins became concerned
about products liability of Respondent if an improperly wired
fixture should occasion harm to property or persons, a ques-
tion, according to Cavins, that had not occurred to him at the
time the decision was made to do the electrical wiring in-
house. Moreover, Cavins testified that he was particularly
concerned about jeopardizing the Dillard’s account because
an electrical fire could cause the loss of employment for per-
haps 1000 people. As stated earlier, Dillard’s is basically Re-
spondent’s only customer and the sole source of its $52 mil-
lion gross income. Therefore, Respondent has competitors
that Dillard’s has turned to in the past and could turn to in
the future, bankrupting Respondent overnight. Cavins rea-
soned that if the wiring was again performed by Webco, it
would serve as a buffer which could absorb enough of the
blame for the unsafe fixture to make Dillard’s less inclined
to take its business elsewhere.
Cavins testified that he and the other owners discussed
these problems and, in a meeting held in late May or early
June, called their general counsel for advice. He advised
them that if they had an opportunity to lessen Respondent’s
liability through subcontracting, it should go for it.
Accordingly, on May 15, 1992, Respondent informed the
Union that it was seriously considering a return to subcon-
tracting. This would not be the first time that Respondent de-
cided to subcontract part of its operation. Approximately 6
years earlier it decided to cease trucking its fixtures with
company-owned equipment and company drivers, and turned
to subcontracting.
After Respondent expressed its reasons for considering
subcontracting, the Union asked if there was anything it
could do to help them out. Counsel for Respondent re-
sponded that unfortunately he didn’t know of anything. He
asked if the Union was in the business of writing insurance
to which the Union replied negatively.
Another contract negotiation session was scheduled for
June 8, 1992. Respondent, however, made the final decision
to go ahead and subcontract the electrical work, not only at
the Tulsa plant but also at its nonunion Bowling Green plant.
Because this decision made further negotiations pointless, the
meeting was canceled. On June 9, 1992, the eight employees
in the electricians unit were terminated and paid through the
end of the week. The Union asked for certain information
from Respondent which was forthcoming.
The Union made no demands to bargain with Respondent
over the effects of its decision to subcontract. Furthermore,
counsel for the Union testified that the Union made no re-
quest to bargain over the effects and that this was a case that
did not involve bargaining over the effects, this is a case
concerned with the decision to subcontract.
It is also noted that Cavins testified that it was Respond-
ent’s intent to have a subcontracting clause in the contract
with the electricians just as the other crafts’ contracts con-
tained a subcontracting clause.
Conclusions and Analysis
I am convinced by the preponderance of the evidence that
Respondent’s reason for subcontracting was grounded on le-
gitimate business judiciousness. In my opinion, Cavins
couldn’t have cared less whether a unit of eight individuals
was represented by a union, and in effect, he honestly testi-
fied accordingly. He also testified that three unions were al-
ready in the plant and that another union didn’t make a dif-
ference to him, ‘‘its not that big a deal to me.’’ These com-
ments were in response to a question put to him as to why
he did not conduct a vigorous campaign. Cavins’ demeanor
during his testimony and the testimony itself reflected fait
accompli attitude with respect to the Union’s gaining major-
ity representation.
Even in spite of threats to close the plant in violation of
Section 8(a)(1), an employer’s justification for subcontracting
was found to be legitimate and not an unfair labor practice
Armored Transport of California, 282 NLRB 850 (1987).
Neither I nor the Union or the Board should presume to sub-
stitute our judgment for Respondent’s legitimate business
judgment.
It is clear that Respondent experienced faulty wiring prob-
lems both when Webco performed the work and when Re-
spondent performed the work with its own employees. I am
convinced the Respondent became genuinely concerned
about product liability and customer relations. Labor costs
were not involved in the decision to subcontract.
After Respondent commenced to utilize the newly hired
electricians to perform the wiring, they continued to have
problems with faulty wiring. Although Cavins may be an as-
tute business person, it is clear, and by his own admission,
he was a novice in the area of electrical wiring.
Thus I believe he became apprehensive about the products
liability of Respondent if a faulty fixture should harm life or
property. I credit Cavins’ testimony that this potential danger
did not occur to him when the decision was made to do the
wiring in-house.
Of even greater concern to Cavins was Dillard’s response
if one of Respondent’s fixtures was to damage Dillard’s
property or customers. Realistically Dillard’s is Respondent’s
sole customer and source of its $52 million gross income.
The loss of Dillard’s business would close Respondent, put-
ting possibly 1000 people out of work. Thus Respondent
viewed Webco as a buffer which to a certain extent would
insulate Respondent from the entire blame in the event of a
mishap. In Respondent’s view, thereby Dillard’s would be
less apt to take its business elsewhere.
Most of the testimony from counsel for the General Coun-
sel’s witnesses related to alleged (8)(a)(1) statements by su-
967OKLAHOMA FIXTURE CO.
3 There is no evidence that he had knowledge of Wallace’s re-
marks to employees.
pervisors to employees. Most of the evidence relied on by
counsel for the General Counsel to prove a violation was
outside of the 10(b) period and fails to prove antiunion ani-
mus as the motivation for subcontracting. The Board has
found conduct outside of Section 10(b) to infer union animus
only after the reason given for discharge had shown by evi-
dence within the 10(b) period not to be the true reason. Rikal
West, Inc., 266 NLRB 551 (1982). The evidence in the in-
stant case reflects a legitimate business justification for sub-
contracting. There is no evidence that any pre-10(b) animus
was transplanted or transferred over to the decision to sub-
contract. Any such animus, which will be discussed, was in
the context of the union organizational campaign and a
Board-conducted election.
I resolve any conflicts in the testimony between Cavins
and the other witnesses, in favor of Cavins. I credit his deni-
als and find him to be a scrupulous witness with an exacting
memory. Cavins was attentive to details and his recollection
was clearcut.
I discredit the testimony of Steel which was barred by
Section 10(b). In his testimony to show animus Steel dis-
played a rancor and hostility toward management, and
Cavins in particular. I note that Steel had been fired by Re-
spondent for insubordination. Cavins denied that he directed
Steel to hire only nonunion electricians. I credit Cavins de-
nial and discredit Steel’s testimony in this regard.
Cavins did recollect that he thought he told Steel that the
electricians to be hired were to be nonunion. A prehire
agreement in this context would be illegal, so Cavins was
only articulating what a new business is allowed to do under
the law. I can understand Steel’s confusion, in that he testi-
fied that an employer decides and controls whether his busi-
ness will be union.
Killough, Respondent’s personnel director, testified to cer-
tain incidents outside the 10(b) period, and thus not alleged
in the complaint.
Cavins denied any knowledge of union activity until he re-
ceived the petition on September 19, 1991. Furthermore, he
denied discussing who was organizing, giving out cards, or
signing cards. He denied generally talking with any super-
visor about the Union’s organizational campaign.
I discredit Killough, who I believe is carried away by his
antagonism toward Respondent. He impressed me as a fabri-
cator disposed to concoct a false scenario. Killough, who had
been fired by Respondent for sexually harassing employees,
testified that he was contemplating legal action against Re-
spondent. By his demeanor, he demonstrated a vindictive at-
titude toward Respondent as if he was settling accounts.
The complaint was amended to include an allegation that
during the spring of 1992, Jerry Wallace, Respondent’s gen-
eral foreman, who became superintendent of the electricians
in August 1991, told employees that they would be laid off
because of their union and/or concerted activities.
Wallace was terminated with a group of electricians as the
result of the subcontracting. There are some evidence that he
has acted in supporting the Union’s campaign. For example,
he told employee Timothy Morris that the Union would be
the best thing for him. I discredit Wallace’s testimony where
it conflicts with that of Cavins. Wallace impressed me as an
individual who perverted and distorted the facts.
In some cases the Board has found that supervisors make
statements of personal opinion as a result of their own frus-
tration and in an effort to protect their own jobs. In as much
as these statements were not authorized or condoned by
Cavins,3 I recommend that this allegation be dismissed.
Walter C. Fields, one of the subjects of the out-of-Board
settlement, testified to certain incidents attributed to Wallace
and Steel, all of which are outside the 10(b) period. Assum-
ing his testimony to be true, it is insufficient to mirror Re-
spondent’s motivation for the much later subcontracting pe-
riod if true, the statements were made in a context of the or-
ganizational campaign and the impending election.
Timothy Morris was a subject of the out-of-Board settle-
ment his testimony relates to incidents outside the 10(b) pe-
riod, in any event, they are far removed from the decision
to subcontract and do not support a theory of illegal motiva-
tion. Morris admitted he voluntarily informed Wallace he
was soliciting cards and had no fear of reprisals. He was of-
fered reinstatement in a non-Board settlement.
Richard Gill is a witness who compulsively offered gratu-
itous testimony all of it outside of the 10(b) period, with the
exception of the allegation in paragraph 5(b) of the com-
plaint. Bob Fields did not testify. I will assume that the alle-
gation that Field stated to Gill that ‘‘they want me to fire
you,’’ is true. The testimony given rise to, and surrounding
this comment, is so amorphous and nebulous, it isn’t clear
at all what the threat was as a result of, or to discourage,
union activity. There was a question about Gill’s receiving
insurance payments. Apparently a union representative
interceded on Gill’s behalf. Fields allegedly told Gill that
Cavins was angry (‘‘really pissed at you’’). I am unable to
infer from Gill’s convoluted testimony that Section 8(a)(1)
has been violated. Accordingly, I recommend dismissal of
paragraph 5(b) of the complaint.
Ray Creel’s testimony relates to what Wallace told him,
as relayed by Cavins to Wallace to Creel. The comment al-
legedly made within the 10(b) period and not denied by Wal-
lace was neither authorized nor condoned by Cavins. I rec-
ommend dismissal of the allegation which is within the 10(b)
period. The statement to Creel, a witness who sounded as if
he was reciting the Declaration of Independence, he was so
rehearsed, was isolated. In my opinion it would not effec-
tuate the policies of the act to remedy the comment and I
recommend dismissal of the allegation which appears at
paragraph 5(b) of the complaint.
Jess Pridgen and his testimony are inherently unbelievable,
I therefore discredit Pridgen. Cavins, whose credibility has
been discussed, denied Pridgen’s version of the conversation
which was outside of the 10(b) period. I credit Cavins. I rec-
ommended that paragraph 5(a) of the complaint be dis-
missed.
Respondent and the Union commenced negotiations in
early January 1992. The parties met on March 9, and Re-
spondent wanted a contract with noneconomic terms which
would track collective-bargaining agreements with the other
unions.
In April 1992, Respondent adhered to his position that
noneconomic items be identical to his other contracts. Also
Respondent desired that the expiration date should be the
same as in its contracts with the other unions.
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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.
At the next meeting, May 8, the Union agreed to the non-
economic terms. Job description and pay raise were all that
were left to negotiate.
On May 14, the Respondent announced it was contem-
plating turning to subcontracting. After giving its reasons,
Respondent invited help or suggestions from the Union. The
union representative conceded that they were not in the in-
surance business and offered no suggestions as to how the
Union could eliminate Respondent’s anxiety.
A contract with the Union would not have impeded Re-
spondent’s flexibility or narrowed its options with respect to
subcontracting, because that prerogative was among the non-
economic items agreed to by the Union. I do not believe that
Respondent was illegally motivated to avoid the contract. It
enjoys harmonious labor relations with identical contracts
with 3 different unions covering some 600 employees.
Effects bargaining is not at issue in this case. In my opin-
ion the record amply supports the fact that Respondent dis-
charged its duty to bargain in good faith with the Union.
A letter dated May 15, 1992, from Union Counsel Bir-
mingham to Respondent Counsel Andrew (G.C. Exh. 5)
states, inter alia, ‘‘we left the negotiating session with a clear
understanding that there would be no further use in bar-
gaining over wages or terms of working conditions if the
company in fact decides to contract out installation of elec-
trical components to store fixtures.’’ This letter also re-
quested information which Respondent provided to the
Union.
After Respondent’s final decision to subcontract at Tulsa
and the nonunion plant at Bowling Green, further negotia-
tions held no solution to Respondent’s quandary so the June
8 meeting was canceled.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The appropriate unit is that which is alleged in the com-
plaint and as it appears in section III of this decision.
4. The allegations of the complaint that Respondent has
engaged in conduct violative of Section 8(a)(1), (3), and (5)
of the Act have not been supported by substantial evidence.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
It is recommended that the complaint is dismissed in its
entirety.