Garrett Flexible Products, 1147 (1984)

OARRETT FLEXIBLE PRODUCTS

Garrett Flexible Products, Inc. and Plastic Processors, Inc. and Sharren R. Davis. Cases 25-CA11450, 25-CA-12174, 25-CA-12822, and 25CA-12822-2

13 June 1984 DECISION AND ORDER

BY CHAIRMAN DOTSON AND MEMBERS

ZIMMERMAN AND HUNTER

On 2 March 1982 Administrative Law Judge Irwin Kaplan issued the attached decision. Respondent Garrett Flexible and the General Counsel filed exceptions and supporting briefs. Respondents Garrett Flexible and Plastic Processors filed reply briefs, and the General Counsel filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a threemember panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent consistent with this Decision and Order.2

The judge found that Respondent Garrett Flexible committed numerous violations of Section 8(a)(1) of the Act by interrogating employees, conveying the impression of surveillance, and threatening employees with discharge and plant shutdown if they selected the Union. We agree with all but two of the judge's 8(a)(1) findings.

We find that the conversation between Supervisor Wood and his brother-in-law Gamble at the latter's home in April 1981 did not constitute coercive I Respondent Garrett has excepted to some of the judge's credibility 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.

Since we agree with the judge's finding that Marilyn Omspacher is a supervisor within the meaning of the Act, we find it unnecessary to pass on his further finding that Omspacher was placed in a position which gave employees reasonable cause to believe that she acted on behalf of management, thereby making her an agent of Respondent Garrett.

Since the credited evidence shows that Supervisor Hunter's conversations with employees Anderson and Sumner occurred before Respondent Garrett's 'do's and don'ts' meeting, we do not rely on the judge's statement in fn. 35 of his decision concerning the increased likelihood of Hunter offering an opinion about the Union after the 'do's and don'ts' meeting.

The correct citation for Hudson Wire Co., cited in fn. 34 of the judge's decision, is 236 NLRB 1263 (1978).

2 The judge recommended a broad remedial order. Such an order is warranted only when a respondent is shown to have a proclivity to violate the Act, or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for employee's fundamental statutory rights. Hickmortt Foods, 242 NLRB 1357 (1979). Inasmuch as Respondents' unlawful acts are not of such a nature, we shall modify the recommended Order and notice of the judge to provide the narrow cease-and.

desist language.

270 NLRB No. 173 interrogation in violation of Section 8(a)(1). The credited evidence shows that Wood, a foreman in the mill room, and Gamble were watching television one evening when Wood asked Gamble if he knew of the upcoming union meeting at the Garrett State Bank and whether he was going to attend. Gamble answered yes. Nothing else was said as Wood and Gamble continued to watch television. Given the familial relationship between Wood and Gamble, and the circumstances in which the conversation occurred, we find that Wood's questions concerning the union meeting were not coercive.8

We also find that, in light of the judge's findings that the employees conducted their union activities openly inside and outside the plant (see fn. 44 of the judge's decision) and did little to conceal their union activity, the General Counsel failed to establish that Supervisor Hunter's 'little birdie' comment to employee Sumner unlawfully created an impression of surveillance (see fn. 34 of the judge's decision).4

The judge also found, inter alia, that Garrett violated Section 8(aX3) and (1) of the Act by terminating its laid-off employees. We disagree.

The evidence shows that Garrett experienced a substantial drop in customer orders in May 1980.

Accordingly, it laid off approximately 30 percent of its work force during June and July 1980. The judge found, and we agree, that Garrett's selection of employees for layoff and subsequent recall did not violate Section 8(a)(3) and (1). In October and November 1980, Garrett mailed termination letters to those employees who were still on layoff. The letters referred to a previously unannounced company policy that employees not recalled within 120 days from layoff are terminated because of lack of work.

In response to questions from Garrett's counsel and the judge during Respondents' case-in-chief,

Garrett's General Manager Wetzel testified that he selected the 120-day recall policy because it had been the procedure at his former company, and because he believed the 120-day limitation on recall rights was the practice at other companies as well.

The judge found that virtually all of the employees remaining on layoff after 120 days had supported the Union, and that Garrett was aware of their union activities. Rejecting Wetzel's explanation for I In adopting the remainder of the judge's interrogation findings,

Chairman Dotson and Member Hunter have considered all of the circumstances surrounding the alleged interrogations discussed in sec. II(BX2) of the judge's decision and find that the questioning reasonably tended to coerce employees in violation of Sec. 8(aXi) of the Act. See Rossmore House, 269 NLRB 1176 (1984).

4 For the reasons stated by the judge, Member Zimmerman would find that Supervisor Hunter's statement to employee Sumner created the impression of surveillance in violation of Sec. 8(a)( I) of the Act.

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DECISIONS OF NATIONAL LABOR RELATIONS BOARD sending the termination letters, the judge noted Garrett's conduct in violation of Section 8(a)(l) and found that the terminations were based on antiunion considerations.

We find that the General Counsel did not establish that Garrett's decision to terminate its laid-off employees after 120 days in that status was unlawfully motivated, The General Counsel presented extensive evidence concerning Garrett's selection of employees for layoff and recall. The General Counsel did not, however, directly address the termination issue in its case-in-chief except to submit into evidence a copy of the October 1980 termination letter. The only other evidence concerning Wetzel's selection of the 120-day recall rights policy was adduced by Garrett's counsel and the judge when Wetzel testified during Respondent's case-in-chief. As stated above, the judge rejected Wetzel's explanation for sending the termination letters. However, the question of motivation where an unlawful discharge is alleged is not answered by discrediting a respondent's asserted reason for the discharge. Rather, the answer to that question rests upon an evaluation of all the relevant evidence. We have considered the evidence regarding Garrett's decision to terminate the laid-off employees and find that, despite the judge's rejection of Wetzel's reason for selecting a 120-day recall rights policy, the General Counsel has failed to affirmatively show that the terminations were unlawfully motivated.

In so finding, we note that Garrett's layoff and recall practices herein were found not to be violative of Section 8(aX3). The layoffs were necessitated by legitimate business concerns, and the selection of employees for layoff and recall was based on lawful considerations. We also note that the unlawful conduct relied on by the judge consisted largely of statements by, or attributed to, former owner and General Manager Thurman. Although an agent of Garrett by virtue of his continued status as company president and member of the board of directors, Thurman had no involvement in the managerial decisions concerning the layoff, recall, and termination of employees. Furthermore,

Garrett had no particular past practice regarding the recall of employees from layoff prior to Wetzel's taking control of the Company. In view of these findings, and in the absence of other evidence showing that Garrett was motivated by unlawful reasons, we find that the General Counsel failed to prove that Garrett seized on the lawful layoff as a pretext to discharge the laid-off employees in violation of Section 8(a)(3) and (1).6

We shall therefore I In its exceptions, Respondent Garrett contends, inter alia, that the 8(aX3) allegation concerning the terminations, which was amended to the dismiss that allegation of the consolidated complaint.

AMENDED CONCLUSIONS OF LAW

1. Substitute the following for Conclusion of Law 6:

   '6. By coercively interrogating employees about their union activities and the union activities of other employees, and by threatening employees with reprisals including discharge and plant shutdown to dissuade them from engaging in union activities, Respondent Garrett thereby has violated Section 8(a)(l) of the Act.' 2. Delete the judge's Conclusions of Law 7, 8, and 9, renumber Conclusion of Law 10 accordingly, insert the following as Conclusion of Law 8, and renumber the subsequent paragraphs:

   '8. Respondent Garrett has not selectively laid off employees, refused to recall them, or terminated laid-off employees in violation of Section 8(a)(3) and (1) of the Act.' ORDER

   The National Labor Relations Board orders that the Respondent, Garrett Flexible Products, Inc.,

   Garrett, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (

   1. Coercively interrogating employees about their union activities and the union activities of other employees, and threatening employees with reprisals...