Walle Corp.

National Labor Relations Board - Board Decisions

Apr 19, 1994

313 N.L.R.B. 1126 (N.L.R.B. 1994)

1126
313 NLRB No. 193
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent excepts to the judge’s finding that there was no
record evidence establishing that employee Bobby Manns was laid
off on March 11, 1993, and cites discriminatee Bryon Benham’s tes-
timony that Manns was laid off at that time. We note, however, that
the Respondent did not adduce any evidence regarding the cir-
cumstances surrounding the layoff of employee Manns.
2 We shall modify the judge’s recommended Order to provide that
the Respondent remove from its files any reference to the unlawful
termination of Bryon Benham and to notify him in writing that this
has been done and that the termination will not be used against him
in any way. The judge inadvertently failed to include such an
expunction provision in his recommended Order.
In addition, the judge recommended that the Board issue a broad
order requiring the Respondent to cease and desist from violating the
Act ‘‘in any other manner.’’ We, however, do not find the Respond-
ent’s conduct in this case egregious enough to warrant the issuance
of such an order. Accordingly, we are issuing a narrow cease-and-
desist order requiring the Respondent to cease and desist from vio-
lating the Act ‘‘in any like or related manner.’’ See Hickmott Foods,
242 NLRB 1357 (1979).
Walle Corporation and International Union of Elec-
tronic, Electrical, Salaried, Machine and Fur-
niture Workers, AFL–CIO. Case 9–CA–30596
April 28, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On December 23, 1993, Administrative Law Judge
James L. Rose issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Walle
Corporation, Winchester, Kentucky, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.’’
2. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
‘‘(b) Remove from its files any reference to the un-
lawful termination of Bryon Benham and notify him in
writing that this has been done and that the termination
will not be used against him in any way.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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.
WE WILL NOT lay off, or otherwise discriminate
against, our employees because they engage in any ac-
tivity on behalf of International Union of Electronic,
Electrical, Salaried, Machine and Furniture Workers,
AFL–CIO or any other labor organization.
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 HAVE reinstated Bryon Benham to his former
position of employment without prejudice to his se-
niority or other rights and privileges.
WE WILL make Bryon Benham whole for any loss
of earnings and other benefits he may have suffered as
a result of our discrimination against him, less any net
interim earnings, plus interest.
WE WILL remove from our files any reference to the
unlawful termination of Bryon Benham and notify him
in writing that this has been done and that the termi-
nation will not be used against him in any way.
WALLE CORPORATION
Eric V. Oliver, Esq., for the General Counsel.
James K. L. Lawrence, Esq., of Cincinnati, Ohio, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me at Winchester, Kentucky, on November
3, 1993, on the General Counsel’s complaint which alleged
that on March 11, 1993, the Respondent ‘‘permanently laid
off’’ employee Bryon Benham in violation of Section 8(a)(3)
and (1) of the National Labor Relations Act. The Respondent
admitted the layoff, but denied that it violated the Act.
Following the hearing both counsel submitted briefs. On
the record as a whole, including my observation of the wit-
nesses, briefs, and arguments of counsel, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the manufac-
ture and nonretail sale of labels at a facility in Winchester,
1127WALLE CORP.
1 Counsel for the Respondent argues that a fourth employee,
Bobby Manns, was also laid off on March 11 because he violated
the Company’s smoking policy. In evidence is a warning Manns re-
ceived on December 4, 1992. There is no evidence that he was laid
off on March 11. Similarly, counsel contends that Mike McIntosh
was laid off on March 16, but concedes that there is in evidence no
record of this.
Kentucky. During the course of this business, the Respondent
annually sells and ships directly to points outside the State
of Kentucky goods valued in excess of $50,000. The Re-
spondent admits, and I find, that it is an employer engaged
in interstate commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, International Union of Electronic,
Electrical, Salaried, Machine and Furniture Workers, AFL–
CIO (the Union), is admitted to be, and I find, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts in Brief
When Bryon Benham was hired on March 11, 1991, the
Respondent was not yet operational. Shortly after Benham
and other new hires received their initial classroom training,
and then moved into the plant, the Respondent began manu-
facturing labels for beverage containers. Benham was as-
signed as a training press operator, and he continued to work
as a press operator until his layoff in March 1993.
During the course of his employment, Benham received
periodic evaluations, all of which ranked him as a well above
average employee. Thus a payroll change report of February
24, 1992, wherein Benham was given a merit increase, con-
tained the comment, ‘‘Our most consistent production pro-
ducer on 2nd shift.’’ (Emphasis in original.)
In December 1992 the Union began an organizational
campaign. At a meeting of December 13, Benham signed an
authorization card and became one of the inplant committee,
although there is no evidence of what activity the committee
was engaged in.
There were subsequent meetings of employees with the
Union’s organizer in January, February, and on March 10.
During late February or early March, Benham was ap-
proached by his supervisor, Steve Oaks, who asked if
Benham was a member of the Union which was trying to get
into the plant—that his name had come up in a meeting.
Benham stated that the only union he had ever had anything
to do with was the farmers’ union.
On March 11, Vice President Dick Evans called Benham
at his home to say that ‘‘my number had come up and I was
being laid off as of right then.’’ Evans indicated there had
been some changes in contracts which necessitated the lay-
off; and the status report of March 11 for Benham stated
‘‘Down sizing workforce.’’ However, the Respondent pre-
sented no evidence of reduced production requirements at the
time.
To the contrary, at the unemployment compensation office
on March 12, Benham observed signs stating that the Re-
spondent was hiring. And when he returned to work in June,
Benham observed 10 to 15 new employees, which is consist-
ent with the testimony of Warren Dyke, the Respondent’s
new director of human resources, that employment increased
during the period Benham was off work, and then lessened
a bit after the summer of 1993.
Thus I find as an undisputed fact that when Benham was
laid off on March 11, the Respondent was not downsizing
its work force due to reduced contracts for its product.
As indicated Benham is again working for the Respondent
at his former job, having been recalled pursuant to an uncon-
ditional offer of June 8, 1993.
B. Analysis and Concluding Findings
From these facts, none of which the Respondent contested,
it is reasonable to conclude that the stated reason for laying
off Benham (downsizing the work force) was a pretext to
disguise its true motive, which can be inferred to have been
his activity on behalf of the Union. Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966). Since I con-
clude that there was no business reason for a layoff of em-
ployees, I further conclude that Benham was terminated on
March 11.
Although the organizational activity here was minimal,
Benham did participate; and this participation was at least
suspected by management. Benham’s undisputed testimony is
sufficient to establish company knowledge of the union ac-
tivity and his participation.
His termination was the day following the last meeting of
employees with the Union’s organizer at a local motel, which
further suggests an unlawful motive, since I find that the Re-
spondent was aware of the organizational campaign.
Benham was, according to his supervisors’ evaluations, an
excellent employee. If in fact the Respondent needed to re-
duce the employee complement, reason suggests that some-
one of lesser skill would be selected.
Finally, the objective evidence, again uncontested, is that
in fact there was no downsizing. The Respondent was hiring
at the time of Benham’s termination.
Counsel for the Respondent argues that Benham was a
smoker and had been given warnings for violating the Com-
pany’s no-smoking policy, distributing ‘‘smokers’ rights’’
material, lack of respect for management, and poor relation-
ship with other employees, suggesting he had received four
separate warnings. In fact he was given a verbal warning in
December 1992 alleging all these violations of company pol-
icy, which he disputed. In any event, there is absolutely no
evidence connecting this event with his termination.
Accordingly, I reject the inference sought to be drawn by
the Respondent that Benham was discharged for cause under
conditions similar to the termination of two other employees
on March 11.1 Both these employees were terminated for ex-
cess absenteeism ‘‘after verbal and written warnings.’’
I conclude that the above facts establish prima facie that
the Respondent terminated Benham because of his known in-
terest in, or activity on behalf of, the Union. I further con-
clude that the Respondent did not rebut the General Coun-
sel’s prima facie case, which was its burden. Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
Indeed, the only witness called by the Respondent was Dyke,
who was not employed at the time of the events in issue.
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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.
3 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.’’
Therefore, I conclude that the termination of Bryon
Benham on March 11, 1993, was violative of Section 8(a)(3)
and (1) of the Act.
REMEDY
Having concluded that the Respondent committed an un-
fair labor practice, I shall recommend that it cease and desist
therefrom and be ordered to take certain affirmative action
designed to effectuate the policies of the Act. Since Benham
has returned to work pursuant to the Respondent’s uncondi-
tional offer to reinstate him, the Respondent will be ordered
to make him whole for any loss of wages or other rights and
benefits he may have suffered in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), and New Horizons for
the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Walle Corporation, Winchester, Ken-
tucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating, laying off, or otherwise discriminating
against employees because of their activity on behalf of the
Union or any other labor organization.
(b) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole Bryon Benham for any loss of wages or
other benefits he may have suffered as a result of the dis-
crimination against him with interest.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under this Order.
(c) Post at its facility, copies of the attached notice, which
is marked ‘‘Appendix.’’3 Copies of the notice, on forms pro-
vided by the Regional Director for Region 9, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt there-
of and shall be maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees customarily are posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.