Tapco Products Co., Inc.

National Labor Relations Board - Board DecisionsJan 5, 1981

253 N.L.R.B. 998 (N.L.R.B. 1981)

D)ECISIONS OF NATIONAL LABOR RELATIONS BOARD Tapco Products Company, Inc. and International Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America, UAW. Cases 7-CA-17007 and 7-RC-15639 January 5, 1981 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 25, 1980, Administrative Law Judge Karl H. Buschmann issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Tapco Products Company, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): i Although the complaint alleged, and the Administrative Law% Judge found, that Supervisor Chubb interrogated employee Mitter concerning the union activities of his fellow employees, the Administrative Law Judge made no finding as to whether this constituted a violation of Sec. 8(aX)I) of the Act We find that Respondent thereby violated Sec. 8(a)(l) of the Act 2 Respondent and the General Counsel have excepted to certain credi- bility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's cesolu lions with respect to credibility unless the clear preponderance of all of the relevant evidence convitnces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NI.RB 544 (1950), enfd. 18S F2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings. a Remedially. the Administrative La Judge ordered Respondent to offer to reinstate Agee Respondent has excepted thereto, correctly noting that the record shows that Agee was properly reinstated on Feb- ruary II, 1980. Accordingly, we shall modify the remedy to that extent Such modification, however, does not relieve Respondent of its obliga- tion to make Agce whole fr any losses suffered as a result f his unlaw- ful layoff 253 NLRB No. 145 "(a) Make Ronald Agee whole for any loss of pay that he may have suffered by reason of Re- spondent's unlawful conduct against him to be computed from the date of his layoff to the date he was recalled, plus interest." 2. Delete paragraph 2(b) and reletter the subse- quent paragraphs accordingly. 3. Substitute the attached notice for that of the Administrative Law Judge. IT Is FURTHER ORDERED that, since the ballot of Ronald Agee cannot affect the results of the elec- tion conducted in Case 7-RC-15639, it shall remain unopened and uncounted. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, and that said labor organization is not the exclusive repre- sentative of all the employees, in the unit herein in- volved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. APPENDIX NoTICE To EMPLOYEES PoST-ED BY ORDER OF THE NATIONAL LABOR REI.ATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WII. NOT coercively interrogate em- ployees concerning their or their fellow em- ployees' union activities. WE WILL NOT discharge, layoff, or other- wise discriminate against any employee be- cause of the union activity of our employees. WE WIl.l NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL make Ronald Agee whole for any loss of pay that he may have suffered by reason of our unlawful conduct against him to be computed from the date of his layoff to the date he was recalled, plus interest. TAPCO PRODUCTS COMPANY, INC. 998 TAPCO PRODUCTS COMPANY, INC DECISION STATEMENT OF HE CASE KARI. H. BUSCHMANN, Administrative Law Judge: This case arose upon the filing of an unfair labor practice charge on October 30, 1979, against Respondent Tapco Products Company, Inc. The resulting complaint dated December 13, 1979, alleged that Respondent violated Section 8(a)(l) and (3) of the National Labor Relations Act, as amended (the Act). I The complaint was consoli- dated with a Report on Challenges. More specifically, the complaint charged Respondent with two acts of un- lawful interrogation, a discriminatory layoff of II em- ployees, and an unlawful discharge of I employee. Respondent filed an answer on December 17, 1979, in which it admitted the jurisdictional allegations and the layoff of 11 employees, as well as the discharge of I em- ployee, but it denied the commission of any unfair labor practices. 2 The complaint was the subject of a hearing held on May 6 and 7, 1980, in Detroit, Michigan. Post-hearing briefs were filed by both sides.3 Upon consideration of the entire record in this case and my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT Respondent Tapco Products Company, Inc., is, and was at all times material, a Michigan Corporation, en- gaged in the manufacture, sale, and wholesale distribu- tion of applicator tools. Admittedly, Respondent is, and was at all times material, an employer within the mean- ing of Section 2(2), (6), and (7) of the Act. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, is admittedly a labor organization within the meaning of Section 2(5) of the Act. As a small Company with seasonal production, Tapco has employed in the past 3 years as few as 7 and as many as 31 employees on its production staff. On October 17, 1979, Respondent reduced its complement of 23 produc- tion employees by laying off 11 workers. The General Counsel has shown that this layoff occurred I day after Respondent had received official notification of the Union's organizing efforts. The organizational attempts had been initiated by em- ployee Ronald Agee, who had contacted the Union during the middle of October 1979. On October 15, 1979, Walter Baker, UAW organizer, held an organizational meeting with the following employees: Ronald Agee, Nancy Pawlukiewicz, Andy George, Joe Strzalka, and Denise Smith. Agee signed a union card and subsequent- ly solicited at the plant for additional signatures. On October 16, James Rhoades, Tapco's general man- ager, stopped at Agee's work station and told him that layoff time was approaching but that he would not be laid off because he was doing a good job. Rhoades also ' At the commencement of the hearing the complaintl as amended to include an additional violation of Sec 8(a)3) of the Act 2 Respondent correspondingly amended its answer to deny the amend ed 8(a)3) allegation. 3 In addition, the General Counsel filed a corrected posthearing brief promised that he would check on the raise which agree had requested. On the same day, October 16, 1979, at 12:30 p.m., Tapco received a telegram from the International UAW that union organizing efforts were in progress at the plant. Rhoades visited Agee again on the afternoon of Octo- ber 17, 1979. At that time, Agee had a sheet of yellow paper containing a list of names for use in his organizing attempt. Rhoades asked Agee the purpose of the list. Agee told him it was nothing. Rhoades requested to see the list, but Agee refused to give it to him. On that same day, October 17, 1979, Arthur Chubb, a supervisor, asked production employee Jeff Herring about the Union. Chubb also questioned his friend, pro- duction employee Michael Mlitter, about the Union. Both Herring and Mitter told Chubb they knew nothing about the Union. 4 On October 17, 1979, at 4:30 p.m., Respondent laid off II of the 23 production employees. Three of the five em- ployees who had attended the union meeting were in- cluded in the layoff: Ronald Agee, Joseph Strzalka, and Denise Smith. About 2 weeks after the October 17, 1979, layoffs, Chubb and Mitter had another conversation during which Chubb indicated that the reason for the layoff was the Union. On November 29, 1979, the election was held in which the Union was defeated by the majority of the employees which did not include any of the 11 laid-off employees. On March 27, 1980, Respondent discharged its em- ployee Nancy Pawlukiewicz, who had worked for Tapco Products for 3 years She had been active in the union organizing effort in October 1979, had attended the union meeting in October 1979, had signed a union card, and had passed out cards at the plant. Pawlu- kiewicz had a poor attendance record with over 30 ab- sences and over 90 instances of tardiness in 1979 (G.C. Exh. 10). However, Pawlukiewicz' record had improved during the second half of 1979. On March 14, 1980, around 9 a.m., Pawlukiewicz asked Chubb if she could go home because she felt sick. Chubb refused to give his permission. A short time later, she renewed her request to go home. He gave his ap- proval but commented that all he got was trouble and that he would see how much trouble she would cause in May, an apparent reference to the instant proceeding which was set for May 6, 1979. On March 25. 1980, Pawlukiewicz asked Chubb for permission to take leave after lunch so that she could take her grandmother to the doctor. Chubb gave his ap- proval. When Pawlukiewicz returned from lunch on time, she told Chubb that her plans to take her grand- mother were actually planned for the following day. On the following morning, Pawlukiewicz reminded Chubb that she would be late returning from lunch and he merely replied, "okay, as long as you're back on time." Pawlukiewicz then told him that he had okayed it yester- day and that she had to go through with her plans. He ' Although Chuhh questioned Mitller and Herring. he testified that he kness nothing aoult the Ufnion unill the last week of October DECISIONS OF NATIONAL LABOR REL.ATIONS BOARD again told her, "okay, as long as you're back on time" and then walked away. Nevertheless, Pawlukiewicz went ahead with her plans and was late by 1 hour and 9 min- utes. Upon her return, Chubb then told her, "We'll see what the boss has to say about this." On the following morning, March 27, 1980, Pawlukiewicz reported for work as usual. After lunch, however, she was called by James Rhoades into his office. Arthur Chubb was also present. Rhoades told her that she was being fired for re- turning late from lunch without permission and suggest- ed that she resign rather than be fired because it would look better on her record. After her discharge, Chubb followed her to her worktable and told her he was sorry she was fired but that they had to do things by the book and that she was a good worker who would be hard to replace. There was considerable disagreement in the record about the type and number of warnings given to Pawlu- kiewicz prior to her discharge. She testified that she re- ceived only two written warnings prior to her discharge (G.C. Exhs. 9 and II) and no oral warnings. Plant Man- ager Chubb, on the other hand, testified that Pawlu- kiewicz received numerous oral warnings in 1979 and 1980 and three written warnings, including one prepared by her former supervisor, Rick Fleming, on March 19, 1979. General Manager Rhoades also testiifed that Paw- lukiewicz received numerous warnings. Considering her numerous absences and general tardi- ness, I cannot credit Pawlukiewicz's testimony that she had not received any written or oral warnings prior to January 1980. And in view of the discrepancy in the completion of the written warnings, I cannot accept the one dated March 19, 1979 (Resp. Exh. 2), notably be- cause it contains neither the employee's signature nor the employer's explanation for the lack of it. While I there- fore accept Respondent's testimony that Pawlukiewicz had received oral warnings in 1979, 1 will rely only upon the two written warnings (G.C. Exhs. 9 and II) which she received on January 15 and 22, 1980. The final warn- ing stated that any further absences or tardiness would be cause for dismissal. Analysis As alleged in the complaint, the record substantiates Respondent's unlawful interrogation of Jeff Herring on October 17, 1979. Chubb had asked "if he knew anything about the union who was trying to organize it, and if [he] was . . . part of it." Herring denied any knowledge. The information sought and the direct manner of interro- gation, as well as Herring's evasive reply, clearly indi- cate that the interrogation was coercive in the light of the surrounding circumstances. I therefore find that Re- spondent violated Section 8(a)(1) of the Act. The record does not contain any evidence in support of the alleged interrogation on November 28, 1979, by James J. Rhoades. The General Counsel further submits that the layoff of 11 employees, including Ronald Agee, violated Section 8(a)(3) of the Act. In this regard General Counsel relies upon Chubb's admission that the layoff was union relat- ed, that it was unprecedented in terms of its large num- bers (11 out of a work force of 23), the timing of the layoff (I day after receipt of the Union's telegram), the interrogation of Herring and the Company's about-face in including Agee in the layoff., Respondent, on he other hand, supports its position by showing that a layoff had been planned for a variety of reasons prior to the Union's organizational attempt. First, in late 1978 or early 1979 Respondent added an assembly line method of production which, after an initial break-in period, was expected to require less manpower. The assembly line was, however, installed by Tapco's own employees, re- quiring a larger than the usual complement of workers during the installation period. Second, in March 1979 Respondent announced a price increase to take effect in April. As a result, Respondent expected a large volume of orders prior to the effective date of the increased prices. The record indeed shows that a meeting for the purpose of cutting costs was planned. Since August 1979, management had even considered cutting back the number of employees. For example, James Rhoades, Re- spondent's general foreman, testified that Walter March, president, and Richard McCleod repeatedly urged him to reduce the number of production employees. A meeting on October 12 was held between McCleod, Rhoades, and Chubb in which it was decided to layoff employees, effective the next pay period, October 17, 1979. The General Counsel does not really dispute that a layoff was being planned prior to the advent of the union campaign, and indeed Agee's testimony would support this notion, since he was initially told that he was not in- cluded in the planned layoff; but the General Counsel argues that the Company's production and order figures do not support such a massive layoff. He is correct that in the recent past Respondent had not cut its work force by as much as 40 percent and that the order figures in October, down 30 percent from August, were not un- precedented when compared with the same statistics for 1978 when no such layoff occurred. It is also important, however, also to look at the em- ployment figures following Respondent's actions in Oc- tober. They show that for the following 5 or 6 months Respondent's production work force remained at that low level. For example, immediately after the layoff of the 11 employees, the work force decreased to 14 pro- duction employees. In December and January that number went down even lower to 10. In March and April of 1980 it reached as high as 16 and remained gen- erally at or about 14 employees. Having considered all data surrounding the layoff, I agree with the General Counsel that the layoff of Agee was union motivated and discriminatory. Clearly, his layoff was not planned prior to Respondent's knowledge of the union campaign and his leading role in it. Howev- er, I cannot find that the entire layoff was union related. To be sure, Mitter's testimony, which I credit, seemed to indicate that Chubb attributed the layoff to the Union, however, his testimony was uncertain and not sufficient- ly clear as to whether Chubb meant the layoff of all II people, a lesser number, or the layoff of only I employ- I he (neral C(,uinscl also alludes to the dschargc of Pawlukiewicz and the ultlilat dmissal f all five rnployees ,% ho had attended the first union lmeeting 10(0 TAPCO() PRODUCTS COMPANY, INC. ee. Although the timing of this action ordinarily indi- cates an employer's attempt to discourage union activity, that presumption may not be accurate under the circum- stances of this case. As already discussed, the record is convincing that Respondent had planned a cut in its work force prior to the union activity. Moreover, the record reveals that the employees selected for layoff had been identified during the meeting of October 12 and that the selection process was based upon job classifica- tion and seniority (Resp. Exh. 11). Agee's testimony that Rhoades talked to him on October 16 about the planned layoff and the assurance that he would not be included also indicates that this job action was planned without knowledge of the union campaign. 6 I therefore cannot draw the ordinary inference that the timing of the layoff suggests union motivation. The General Counsel next argues that the large number of employees involved in Respondent's layoff was unprecedented and therefore discriminatory. Yet the record clearly shows that Respondent's work force re- mained at that low level of employees for the next 5 or 6 months, probably because of the operation of the newly installed assembly line. Further, most of the employees included in the job cutback were not involved with the Union; only three of the five employees who had attend- ed the union meeting were included. On balance, I conclude that the record does not sup- port the General Counsel's allegation that the entire layoff was related to the employees' union activity. It does, however, fully establish that Agee's inclusion in the layoff was discriminatory. He was the ringleader of the union campaign and he had been told that he would not be included in the job action. Yet after Respondent had received notification of the organizational attempt and his role in it, he was promptly made a part of the job cutback. I therefore find that Respondent violated Sec- tion 8(a)(3) and (1) of the Act. The final issue to be determined is whether Nancy Pawlukiewicz was discharged for antiunion motives. The General Counsel, conceding that Pawlukievicz' attend- ance record was extremely poor, argues that her dis- charge on March 27, 1980, 4 months after the union elec- tion on November 29, 1979, was a result of Respondent's union animus because she was active in the organization- al attempt and because her attendance had improved by 50 percent. Respondent, on the other hand, argues that this employee had received several written and oral warnings, that her attendance record-while improved- was still unacceptable, and that she had returned late from her lunchbreak while she was on probation. Again, I cannot find that her discharge was the result in whole or in part of her union involvement. To be sure, she had attended the union meeting on October 15, had signed an authorization card, and had distributed cards to fellow employees. She had also improved her attendance record significantly, but even during the last 6 months in 1979 ^ Had Respondent ohlained an) infotrrmation prior to he receipt of the telegram on the 16th that several olf its empilyees were inlvolved with the Union, i would certainly have xbeen aare of Age's Icaldcrship in it Hut Ihe record shows that Agee', insolemenli became pparentl ol! .fltcr Rhoades sa' him at his uork station th Ie 171h , ith the list of mploy ees her "improved period," she was late on 34 occasions, ranging from 4 to 9 times in I month, and absent 17 times, or 2 to 5 times in each month. Although she had not received any written warnings until 1980,7 she re- ceived successive warnings on January 15 and 22, 1980, placing her on probation for 90 days with a warning that any further warnings or absenteeism would result in her dismissal. Finally. on March 25, 1980, she had asked for permission to take an extended lunch hour to take her grandmother to a doctor or to take her mother to her grandmother's. Chubb agreed. Nevertheless, she returned on time and explained to Chubb that her obligations to her grandmother were actually planned for the following day. On that day, Pawlukiewicz renewed her request but Chubb merely replied, "okay, as long as you're back on time." She protested, reminding him that he had given her permission on the previous day. Chubb repeated his remark and walked away. When Pawlukiewicz returned more than I hour late, she was called into Rhoades' office and discharged. The General Counsel found it significant that she was not discharged prior to the union campaign when her ab- senteeism and tardiness record was even worse and that on March 14, 1980, when she asked Chubb for leave to go home he had replied that he would see what trouble she would be in May, in an apparent reference to this proceeding. This remark by Chubb does not indicate that her union activity played any part in her discharge and any inference from a casual remark of this type would be farfetched. Moreover, the fact that Respondent decided to enforce its rules more stringently in 1980 than in the past should be within an employer's discretion and does not suggest discriminatory treatment of this employee She was discharged 6 months after her union activity and had several opportunities but failed to conform to the rules set by her Employer. I cannot find any unlaw- ful, discriminatory conduct in this instance. CONCI UtSIONS 01 LAW 1. Respondent Tapco Products Company, Inc.. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union. United Automobile. Aerospace and Agricultural Implement Workers of America. UAW, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by coercively interrogating an employee concerning his and his fellow employees' union activity. 4. Respondent violated Section 8(a)(3) and (1) of the Act by laying off Ronald Agee because of his union ac- tivity. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. Any other allegations have not been sustained. 7. The previously challenged ballot of Ronald Agee should be made a part of the tally of ballots and effec- t 1 la, i i ot i rediltedl I rilll . , ltrlllig diltel NtLirch . 1'79 hecause of the ilht.eiiC. of tier silnltltre 3an Ihe tailure t explal It 1001 D)E.CISIONS OF NATIONAL LABOR RELATIONS BOARD tively counted. The other eight challenged ballots should remain invalid. Accordingly, the election result with one additional vote for or against the Union would not change. TIIE RFMI)Y Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act I recommend that Respondent be ordered to cease and desist from its unlawful practices. I further recom- mend that Respondent be ordered to post an appropriate notice and take affirmative action in order to effectuate the policies of the Act. In addition, I recommend that Respondent offer Ronald Agce immediate reinstatement without prejudice to his seniority rights or other privileges and provide him with backpay and interest thereon, to be computed in the manier prescribed in W. Woolworth Company, 9() NI.RB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977);' and that he be made whole for any loss' of pay or other benefits which he suffered as a result of Respondent's conduct found unlawful herein. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record. and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: OR)DER ' TIhe Respondent, Tapco Products Company, Inc., its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Coercively interrogating its employees concerning their or their fellow employees' union activities. See'. In1r;ll\. i, IPlumtmin & t ain ( o. 138 NI.RI 71h (19h2) Ir I ,he n.I1 r- ll Cxcetptllirls are filed as provided by Sec 12.46 oi the Rules .al1 Rigiulatlnten if tite National I abor Relatiions Iticird, the liid iVg.. ....lliulusl , illil re t)liiiCnrdt ()rdr heriil shall, .is proidcd i Se, 1(12 48 t ht Rules ad Regiti;loii he adopted t tiel toard andl he,.rnilt its fIltiligs, C...lclisits, ad (Order . iand all lhe.ljtiols thereto sOlal he d t N 'Ihtetr l I "I lt a Il ptrpsecs (b) Discriminatorily discharging or laying off employ- ees because of their union activities. (c) In any like or related manner unlawfully interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act. (a) Offer Ronald Agee immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent position, and make him whole for any loss of pay that he may have suffered by reason of Respondent's unlawful conduct against him in accordance with the recommendations set forth herein under "The Remedy." (b) Include in the tally of ballots the ballot of Ronald Agee. (c) Provide the Regional Director, upon his request, with all written and oral information relevant to the computation of backpay and the requirement for rein- statement of Ronald Agee. (d) Post at its Detroit, Michigan, office and plant ciies of the attached notice marked "Appendix."' 0 Copies of said notice, on forms provided by the Regional Director for Region 7. after being duly signed by Re- spondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are custonarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. "' In the ccl Ills ()Orilci c elirced b a Judgnenl iof Ili United Stales (out ,,t Appel. 1lilt wrds ill Ihe rlolle rlcidtllng "Posted hby Ordl if the Natlli(ll I alli Rel;llitins loard" shall read '"Posied P'ursu- a.lt l 1 a Judgmlenl oI tIe Iitred Slates Court elf Appeals Elorcing an Order [of lie Natillal I.ahbIr Relationrls Board " 100(X)2