Seifert Mfg., Co., Inc., 676 (1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

Seifert Manufacturing Company, Inc. and Ephrem J.

Hann. Case 30-CA-4655

August 28, 1979 DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS JENKINS

AND PENEI.I.O On May 9, 1979, Administrative Law Judge Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Seifert Manufacuring Company, Inc., Kiel, Wisconsin, 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 (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

    IThe Administrative Law Judge erred as to the total number ofemployees laid off and the number of employees laid off out of seniority during the period 1975-77. The correct figures are that 13 employees out of44 were laid offout of seniority. Nonetheless, we find that Respondent generally followed a practice of laying off according to seniority, where possible, and we agree with the Administrative Law Judge that Respondent's stated reasons for Hann's layoff were pretextual.

    Additionally, the Administrative Law Judge mistakenly indicated that Hann had testified that he could perform 9 of the 20 jobs required in his work group. The record discloses that Hann did not make this statement, and we agree with the Administrative Law Judge's later finding that there is no evidence to show that Hann was incapable of performing any of the jobs which the employees retained were assigned to perform.

    The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings.

    2See Hickmott Foods, Inc., 242 NLRB 1357 (1979).

  2. Substitute the attached notice for that of the Administrative Law Judge.

    APPENDIX

    NOTICE To EMPLOYEES POSTED BY ORDER OF TIHE

    NATIONAL LABOR RELATIONS BOARI) An Agency of the United States Government WE WILL NOT discourage membership in, sympathies for, or activities on behalf of Local Lodge No. 1259 of the International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, by laying off, refusing to reinstate, or in any other manner discriminating against employees in regard to hire or tenure of employment or any term or condition of employment.

    WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization:

    to form, join, or assist any labor organization; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended.

    WE WILL offer immediate and full reinstatement to Ephrem Hann to his former job or, if that job no longer exists, then to a substantially equivalent job without prejudice to his seniority and other rights and privileges previously enjoyed, and WE WlLtt make him whole for any loss of pay or other compensation he may have suffered by reason of our discriminatorily laying him off and refusing to reinstate him, with interest.

    SEIFERT MANUFACTURING COMPANY, INC.

    DECISION

    STATEMENT OF THE CASE

    THOMAS D. JOHNSTON, Administrative Law Judge: This case was heard in Kiel, Wisconsin, on November 13 and 14, 1978, pursuant to an amended charge' filed by Ephrem Hann, an individual, on May 25, 1978. and a complaint issued on June 8, 1978.

    The complaint alleges that Seifert Manufacturing ComThe original charge was filed on April 19. 1978.

    244 NLRB No. 110

    676

    SEIFERT MFG( (CO pan. Inc. (herein Respondent). violated Section 8(a)(l) and (3) of the National Labor Relations Act. as amended (herein the Act). by discriinatorilv laying off Ephrem Hann and refusing to recall him because of his union membership or activities.

    Respondent in its answer dated June 9. 1978. denies having violated the Act.

    The issue involved is whether Respondent violated Section 8(a)(3) and (I) of the Act by discriminatorily laying off and refusing to recall Hann because of his union membership or activities.

    Upon the entire record in this case and from my observations of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent,` and the oral argument by the General Counsel I hereby make the following:) FINDINGS OF FA('CT I. IE BUSINESS ()F il RESPONDENT Respondent, a Wisconsin corporation, has a facility located at Kiel, Wisconsin, where it is engaged in the business of manufacturing farm equipment. During the calendar year 1977.' a representative period, Respondent in the course of its operations sold and shipped products valued in excess of $50,000 from its Kiel, Wisconsin, facility directly to customers located outside the State of Wisconsin.

    Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

    Il. THE LABOR OR(iANIZATION INVOIL.ED Local Lodge No. 1259 of the International Association of Machinists and Aerospace Workers, AFL-CIO (herein the Union), is a labor organization within the meaning of Section 2(5) of the Act.

    1. THlE UNFAIR I.ABOR PRACTICES A. Background Respondent operates a facility located at Kiel, Wisconsin, where it is engaged in the manufacture of farm equipment. Lester Seifert is its owner and president.5

      Other supervisory personnel include Office Manager Paul Isselmann and Plant Superintendent Donald Utecht. Utecht, who previously served as an assistant to President Seifert, succeeded Kenneth Vassar6 as plant superintendent in January. Roger Hickman, who was employed by Respondent until June.

      was in charge of the toolroom and maintenance department.

      2The Charging Party did not submit a brief.

      I Unless otherwise stated the findings are based upon the pleadings, admissions, stipulations, and undisputed evidence contained in the record which I credit.

      4All dates referred to are in 1977. unless otherwise stated.

      President Seifert is a supervisor under the Act.

      6 Vassar. who ceased working for Respondent in January. was a supervisor under the Act.

      The production antil maintenance employees emplosed by Respondent at its facilits are represented by the nion with which it has a collective-hargaining agreement covering them. This agreement is effective from November 1, 1976. to November I. 1979.

      Ephrem Hann. the discriminatee. was employed by Respondent from November 1969 until his termination on October 21. When terminated he was working in group 4. the machine operators group.

      His union activities consisted .A'belonging to the Union and serving as shop steward and lso as a union delegate or representative.

      On August 30. 1976, Allan litecht. who is a member of the bargaining unit and is also the son of Plant Superintendent Uttecht. filed a decertification petition with the National l.abor Relations Board in Case 30 RC-383. Folltowing an election held on October 6. 1976. in which 16 employees voted for the Union and 8 employees voted against the Union, the Regional Director for Region 30 on October 15, 1976. certified the Utnion as the bargaining representative of Respondent's unit employees.

      Allan Utecht testified he began circulating this petition the early part of August 1976.

      Hann stated upon being asked by Allan Ultecht in the summer of 1976 to sign the decertification petition he refused.

      According to Hann. in the spring of 1976 President Seifert had informed him that should he ever want to pass the petition for decertification he would give him all the necessary infiormation. Although President Seifert stated he did not recall the conversation he acknowledged it may have occurred, and I credit lann's undisputed testimony.

      Prior to the decertification election, management meetings attended by President Seilert. Toolroom and Maintenance Supervisor Hickman. Office Manager Isselmann.

      Donald Utecht, who was then assistant to President Seifert.

      and Kenneth Vassar, who was plant superintendent at the time, were held at which time they discussed each of the unit employees concerning whether they would vote for or against the Union in the upcoming election. At one meeting a poll was taken among them concerning how they thought each of the employees might vote.' According to the undenied testimonies of both Vassar and Hickman. who I credit, they also discussed ways to get the employees to vote for the Company. and at these meetings Seifert was of the opinion Hann was against the Union and would vote in favor of the Company to help to decertify the Union.

      The...

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