Brad's Machine Products, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1971

191 N.L.R.B. 274 (N.L.R.B. 1971)

274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brad's Machine Products , Inc. and Mildred F. John-
son and Gladys I. Pruett . Cases 10-CA-8306-1 and
10-CA-8306-2
June 18, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On October 5, 1970, Trial Examiner Sidney J. Bar-
ban issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel and the
Charging Parties filed exceptions to the Trial Ex-
aminer's Decision together with supporting briefs. The
Respondent filed an answering brief.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and cross-exceptions,
the briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations
of the Trial Examiner only to the extent consistent
herewith.
The Trial Examiner concluded that Respondent did
not violate Section 8(a)(3) of the Act in its handling of
the layoffs, seniority rights, and recall of employees
Mildred Johnson and Gladys Pruett. We disagree with
this conclusion.
The record shows that in January 1969 the Union
failed to secure a majority of the votes cast in a repre-
sentation election. Mildred Johnson was prominent
among those employees supporting the Union and
acted as the Union's observer at the election. In
November 1969, Respondent was faced with a substan-
tial reduction in production due to a lack of new orders
from the Department of Defense. A reduction in force
and layoffs resulted. On November 10, 1969, Johnson
and Pruett, who were senior employees on the first shift
in the rework department, were reassigned to the sec-
ond shift at jobs that were different and more complex.
Following their reassignment, both employees testified
that they protested to Manager Starr that Respondent
was not following seniority in transferring them to the
second shift and that because of their children it would
be difficult if not impossible for them to work the sec-
ond shift. Johnson also complained that Respondent.
191 NLRB No. 15
was picking on her because of her union activity.' Both
employees worked a full shift on the 10th.
On November 11, when Pruett reported for work she
went to Foreman Kirkus stating she had heard from
her sister who worked on the first shift that she could
take a voluntary layoff. She told Kirkus she would like
to do this, and Kirkus agreed and proceeded to take
Pruett to Starr's office. On the way, Kirkus asked John-
son if she wanted to take a voluntary layoff also. Both
employees went with Kirkus to Starr's office. While
there, Robinson, another employee who had also been
reassigned, joined the group. Present in Starr's office
were Vice President Helms, Starr, and Kirkus, as well
as the employees. Both Johnson and Pruett asked if
their seniority and profit sharing would continue and
were assured that it would. Starr advised them that
"everything goes on just as if you had been laid off by
the company." They were also told that they would be
the first to be recalled in January or February. As a
result of their voluntary layoff they were also eligible to
receive unemployment compensation.
In January 1970, both employees received letters ad-
vising that they were required to come to the plant
every 60 days and sign a register in order to maintain
their seniority. The last time they appeared at the plant
was on May 27, 1970, when they were told they had
been terminated. They were advised that their termina-
tion had resulted from a company policy adopted in
February 1970, that employees on layoff for more than
6 months were considered terminated. This policy pro-
vided that seniority would be severed by, among other
conditions: "(1) Voluntary quit or laid off employees
[sic] request" and "(2) Lay-off in excess of 6 months."
The effect of this latter change was to sever only the
four individuals in voluntary layoff status, two of them
the Charging Parties herein, and the Trial Examiner
found that the new rules were adopted with these four
employees specifically in mind.
The General Counsel contends that Respondent
reassigned Johnson and Pruett to work assignments on
the second shift which it knew they could not handle
or would find difficult if not impossible to work, and
that this was carried out in order to remove both John-
son and Pruett. The General Counsel further contends
that Respondent adopted its February "termination"
policy in order to effectuate the ultimate termination of
Johnson and Pruett.
Our detailed review of the credited record evidence.;
and the Trial Examiner's findings confirm the correct-
ness of the General Counsel's contentions, It isundis- -
puted that Respondent ha± knowledge of "Johnson's:
union activity, and-, advocacy, both as to the January,-
1969-`election and the early 1970campaign for another.
Pruett was a very close friend of Johnson, the two of them spending
much of their time, together.
BRAD 'S MACHINE PRODUCTS, INC.
election . In addition, the testimony clearly shows that
in late 1969 , shortly before Johnson and Pruett took
their voluntary layoffs , Respondent was very much
concerned about the probability that the Union would
again become active in organizing and seeking repre-
sentation among its employees . Former Supervisor
McGlathery 's credited testimony that , in September or
October 1969 , General Manager McCarver stated in
her presence that "the year was about up [and] that
there was a need to find out who was for it [the Union]
for the purpose of getting rid of them."
McGlathery 's further credited testimony as to sev-
eral other incidents in which various representatives of
management made statements clearly shows Respond-
ent's hostility to the Union in general , and Johnson in
particular because of her union activities . One such
incident involved Supervisors Shurbune and Miller in
which Miller asked "what they were going to do about
Mildred Johnson," to which Shurbune replied that "we
have got to figure out a way to get rid of them." That
this hostility toward the Union carried over into 1970
is also established by McGlathery's credited testimony
that in January 1970 she was told to get the names of
the inspectors on the line who were for the Union, that
there was going to be a layoff, and that they were not
going to follow seniority but rather were going to "keep
the ones they wanted and let the rest of them go."
This credited evidence , in our opinion , clearly estab-
lishes that Respondent was concerned over the proba-
bility of another election and that its hostility against
the Union was directed toward Mildred Johnson, a
well-known and active union supporter . The credited
evidence also establishes that Supervisor Rothell had
warned Pruett not to associate with Johnson because
the Employer was trying to get rid of Johnson; Johnson
and Pruett were reassigned to second-shift jobs in
which Respondent's supervisors knew they would en-
counter difficulties both as to job content as well as
personal inconveniences ; they were encouraged to ac-
cept voluntary layoff with the assurance of recall; and,
thereafter , they were terminated under a termination
policy adopted in late February 1970 , at a time when
Johnson was actively engaged in passing out union
campaign literature in front of Respondent's plant.
These established facts leave little room for any conclu-
sion except that the changes in the layoff policy were
designed to effectuate the termination of these em-
ployees for their union activities or 'sympathies.
Accordingly, we find that Respondent violated Sec-
tion 8(a)(3) of the Act by its termination . of Mildred
Johnson and--;Gladys Pruett.
THE REMEDY
275
Having found that Respondent has engaged in cer-
tain unfair labor practices, the Board will order Re-
spondent to cease-and-desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent discriminatorily ter-
minated Mildred Johnson and Gladys Pruett, the
Board will order Respondent to offer Johnson and
Pruett immediate and full reinstatement to their former
positions or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings that they may have
suffered from the time of their discharge to the date of
Respondent's offer of reinstatement. The backpay for
the foregoing employees shall be computed in accord-
ance with the formula approved in F W. Woolworth
Company, 90 NLRB 289, with interest computed in the
manner and amount prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716, 717-721. We shall also
order Respondent to preserve and make available to the
Board or its agents, upon request, payroll and other
records to facilitate the computation of backpay due.
As the unfair labor practices committed by Respond-
ent are of a character striking at the root of employee
rights safeguarded by the Act, we shall order that Re-
spondent cease and desist from infringing in any man-
ner upon the rights guaranteed in Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536
(C.A. 4).
AMENDED CONCLUSIONS OF LAW
Delete conclusion 3 of the Trial Examiner's Conclu-
sions of Law and substitute therefor the following:
"3. By discriminating in regard to the hire and tenure
of employment of Mildred Johnson and Gladys Pruett,
thereby discouraging membership in the Union, Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the
Act.
"4. By interfering with , restraining , and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
"5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act."
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Brad's Ma-
chine Products, Inc., Gadsden, Alabama, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating against,
any employee engaged in activity on behalf of Team-
sters Local Union 612, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor orga-
nization.
(b) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their right
of self-organization, to form, join, or assist the above-
named or any other labor organization, to bargain col-
lectively through representatives of their own choosing,
and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid, or to
refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Mildred Johnson and Gladys Pruett im-
mediate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or other rights and privileges, and make them whole
for loss of pay in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Notify immediately the above-named individuals,
if presently serving in the Armed Forces of the United
States, of the right to full reinstatement, upon applica-
tion after discharge from the Armed Forces, in accord-
ance with the Selective Service Act and the Universal
Military Training and Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, timecards, personnel records and re-
ports, and all other records necessary or appropriate to
analyze the amount of backpay due.
(d) Post at its plant in Gadsden, Alabama, copies of
the attached notice marked "Appendix."2 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 10, after being duly signed by Respond-
ent's authorized representative, shall be posted by it
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 customarily posted. Reasonable steps shall be taken
In the event that 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 be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
Teamsters Local Union 612, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or other
union, by discharging or otherwise discriminating
against our employees because of their union or
concerted activities.
WE WILL NOT, in any other manner, interfere
with, restrain, or coerce our employees in the exer-
cise of their right to self-organization, to form,
join, or assist the above-named Union, or any
other labor organization, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for the
purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all such
activities.
WE WILL offer Mildred Johnson and Gladys
Pruett immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges, and make them whole for any loss of
pay suffered as a result of discrimination against
them.
BRAD'S MACHINE
PRODUCTS, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individu-
als, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
BRAD 'S MACHINE PRODUCTS , INC. 277
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Peachtree Building, Room 701, 730 Peachtree
Street, N.E., Atlanta, Georgia 30308 , Telephone 404-
526-5760.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARMAN, Trial Examiner : This matter was
heard at Gadsden, Alabama, on July 30 and 31, and August
6, 1970. The complaint, issued on June 25, 1970, based upon
charges filed on April 29, 1970, alleges that the above-named
Respondent violated Section 8(a)(1) and (3) of the Act in that
it laid off and thereafter refused to recall for employment two
employees , the above-named Charging Parties, because of
their membership in or activities on behalf of Teamsters Lo-
cal Union 612, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America (herein "the Union"), or because they engaged in
concerted activities protected under the Act. As amended at
the hearing , Respondent's answer admits allegations of the
complaint sufficient to support the assertion of jurisdiction
under current standards of the Board , and to support a
finding that the Union is a labor organization within the
meaning of the Act. The answer denies the commission of any
unfair labor practices.
Upon the entire record in this case, from observation of the
witnesses , and after due consideration of the briefs filed by the
General Counsel and the Respondent , the Trial Examiner
makes the following:
FINDINGS AND CONCLUSIONS
1. THE FACTS
A. Preliminary
Respondent is engaged in the production of M-125 boost-
ers under contract with the United States Government. In
November 1969 (all dates hereinafter are in 1969, unless
otherwise noted), Respondent , nearing the end of a contract
with the Government , began cutting back on production and
started laying off employees . Prior to that time, when in full
production , Respondent had 839 employees . Respondent, in
its brief, claims that at the time it had no established policy
concerning the layoff or recall of employees . However, the
two employees here involved, Johnson and Pruett , testified
that they were given to understand generally by management
that their employment status would be governed by seniority.
The testimony of James C. Starr, who was then manager of
Quality Assurance and had supervision of Johnson and
Pruett, was that in laying off employees he followed seniority
as a general principle . The testimony of Joe D. Helms, then
vice president over Quality Assurance operations , and James
W. Shurbune, then general foreman over manufacturing op-
erations, is consistent with the fact that seniority principles
were being applied . Though it is not altogether clear, the
record indicates that seniority was applied on a departmental
basis.
B. The Transfer of Johnson and Pruett to the Second Shift
In November, Johnson and Pruett were two of the oldest
employees in terms of seniority in the Rework Department.
On November 7, each was given a written notice that she was
being transferred from the first to the second shift, effective
November 10. Another employee, Robinson , who also had
long seniority , was transferred out of the Rework Depart-
ment to the second shift at the same time. Johnson and
Pruett, after receiving permission from Rework setup man
Rothell, at separate times, went to see Manager Starr and
protested that Respondent was not following seniority in
transferring them to the second shift . Both insisted that they
had been hired for the first shift , and because of their children
it would be difficult, or impossible , for them to work the
second shift. Johnson asserted that Respondent was picking
on her because of her Union activities . This was denied by
Helms, who was in the office at that time, as well as by Starr.
Starr did not change the assignments . Johnson and Robinson
went to see Bradford , apparently the owner of Respondent,
who indicated that Respondent was doing the best it could to
find places for the employees , but did not indicate that the
assignments would be changed.
According to Respondent 's witnesses , the transfer of these
two employees resulted from a decision of management to
close down the Rework Department because a decrease of
work in the plant made it possible to do a considerable part
of the work required on the production lines rather than in
the rework area. It appears that other employees in the de-
partment had previously been transferred , some to jobs on the
first shift, and, according to Respondent's witnesses, by the
end of November , only the setup man, his helper, and one
female remained of the original complement of the Rework
Department . (There is some dispute whether this female had
seniority over Johnson and Pruett . It is not considered neces-
sary to resolve this.) It was testified that these remaining
employees worked thereafter in other areas in the plant, as
well as being used in the Rework area when needed. Em-
ployees usually employed in production were also occasion-
ally sent over to the Rework area to work after November.
The General Counsel 's witnesses asserted that they would see
employees , up to four or five, working in the Rework area
almost every day.
There is no reason to discredit Respondent 's testimony that
the Rework Department, as a separate operation , was shut
down and the work formerly done in the area basically dis-
persed elsewhere . The fact that some of this work was there-
after done in the Rework area does not require a different
answer. It would appear that Johnson and Pruett were re-
tained in the Rework Department until the department was
practically closed down because of their seniority , and I so
find. Starr testified that at that time the only vacancies which
he had were on the second shift, and he did not have a policy
of assigning employees to shifts by seniority when there were
not vacancies . Helms, also , testified that Respondent did not
permit the displacement of experienced employees on the first
shift merely on the basis of seniority. This is credited. There
is no persuasive evidence which would lead to a different
conclusion.
C. The Layoff of Johnson and Pruett
Both Johnson and Pruett reported for work on the second
shift on November 10, as directed . They were assigned to
work which was different and more complex than the work
to which they were accustomed . Pruett testified to the
strangeness of the work to which she was assigned and gave
indication of its difficulty. Johnson stated that after 2 hours,
the supervisor on the second shift, Kirkus, came to her and
transferred her to a machine, indicating that the assigned
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work seemed to be making Johnson nervous. Starr, in fact,
conceded that even prior to the transfer of Pruett and John-
son, Kirkus had on a number of occasions =expressed his
doubt that the women could do the work on hisshift Though
Starr stated that the employees could be trained to do the
work in a few weeks, Helms testified that it,mightatake as
much as 6 months. Helms asserted that Respondent desired
to retain these long term, capable employees, and could better
afford to train them on the second shift.
Both Johnson and Pruett worked a full shift -on November
10. Before returning the next day, Pruett heard from her
sister, who also worked for Respondent, that she had been
informed at work that Respondent would grant to those who
requested it a "voluntary layoff."' Therefore when she went
to work that day, Pruett suggested to Kirkus that she would
like to be placed on a voluntary layoff status. According to
Pruett, Kirkus agreed and proceeded to take her to Starr's
office. She stated that on the way, Kirkus went over to see if
Robinson wanted to join them, but Robinson did not come
back with Kirkus. However, when Kirkus went over to talk
to Johnson about this, she came back with Kirkus and accom-
panied Pruett and Kirkus to Stair's office. It appears that
during the meeting in Starr's office Robinson joined the
group.
Johnson stated that on this day, she reported to the ma-
chine on the second shift to which she had been assigned the
previous day. After she had turned the machine on, she saw
Kirkus coming down the aisle with Pruett. According to her
testimony, Kirkus came over to her machine and said, "Come
on, Mildred, and take a voluntary layoff," to which she re-
plied, "Can I draw my unemployment?" When Kirkus re-
plied in the affirmative, Johnson accompanied him to the
office. Kirkus did not testify. The testimony of Johnson and
Pruett as to the above is credited.
The accounts of Johnson and Pruett concerning the occur-
rences'in Starr's office that afternoon are quite similar. They
agree that Starr and Helms were there in addition to Johnson,
Pruett, and Robinson. During this meeting, the employees
asked if their, seniority and profit sharing would continue if
they went on voluntary layoff, and were assured that it would.
According to Pruett, Starr said that "your seniority, your
profit sharing and everything goes on just as though you were
laid off by the Company."The employees enquired if they
would be called back to work . It was testified that they were
told that they would be the first to be called back about
January or February. Pruett stated that they also asked about
their unemployment compensation and insurance.
In the course of this conversation, Pruett asked why em-
ployees were working in Rework since Starr had stated that
Respondent was going to close it down. It is asserted that
Starr replied that they were just cleaning up.
Both employees testified that-Johnson stated that she didn't
want to be laid off, that she needed the work. However, Pruett
agreed that Johnson also said that she couldn't work on the
second 'shift because of her children. In response to Johnson's
' Starr makes clear that the idea of granting "voluntary layoffs" had been
discussed among management, which considered this a useful device to
preserve the good will, and presumably the services, of the "good people"
Respondent desired to retain, but who were being displaced from their
regular jobs by the cutback in operations. Helms agreed that the employees
here involved were such "good employees" that Respondent wanted to
keep.
Former Supervisor McGlathery testified that in January 1970, before the
large layoff, General Manager McCarver spoke to employees on the first
shift, advising them that anyone who wanted a voluntary layoff could get
one, that they could return when the plant returned to substantial operation
("started running good"), and that their seniority would continue as in "a
regular layoff " This testimony was undenied and is credited
request for work, she stated that Kirkus replied that he didn't
have any work for her to do, that he could not let her continue
to run the machine she ran the previous day, and that "it was
better for you people to take the layoff," since he would have
to lay them off the next week.
Pruett, Johnson, and apparently Robinson, signed change
of status forms, which had written on them, in ink, "Volun-
tary Layoff." The employees are insistent that the forms were
fully prepared when they came into office.
Starr, who no longer works for Respondent, and Helms
testified for Respondent concerning the occurrences at this
meeting . Stair's -testimony indicates his recollection that the
meeting came about because he sent for the ladies to come to
his office on the first day of their transfer, after Kirkus told
him that they were dissatisfied with the work. He stated that
they wanted to know if they could get out of the jobs they
were on, to- which he replied that this could not be done
because this was all that he had open at that time.' It was
Starr's recollection that Kirkus brought up the possibility of
giving the employees a "voluntary layoff," that the employees
assented, and that he agreed and proceeded to prepare the
change of status slips at that time . Helms confirms Starr's
testimony that the slips were not prepared in advance.
Starr stated that the employees in the meeting were con-
cerned with when they would be called back. He testified that
he told them that as work increased, "the people" would be
called back, but asserted that there was no specific reference
to individuals. On cross-examination, however, when asked
if he told the employees they would be called back in January
or February-,,Starr answered, "I didn't tell them they would
be called back. I said as the workload increased they would
be called back." Helms testified that "I informed these people
that as soon as the jobs built up and we had contracts back
in the house I assured them that they would have their jobs
back and that we could try to work it so that when they came
back they would be put on the first shift, and that we would
work with'them." Both Starr and Helms indicated that the
question of the employees' seniority status while on voluntary
layoff was not raised in the discussion.
Starr and Helms generally with respect to this meeting
tended to be-vague, subjective, and somewhat confused, and
I believe, where there are conflicts, the testimony of Johnson
and Pruett to be more reliable in the circumstances. However,
although these slips may have had the words "voluntary
layoff' written upon them before the employees came into the
office, as Johnson recalls, I am not persuaded that in the
circumstances the employees could be sure that their names
were on the documents when they walked in, and I do not
find that the slips were prepared in advance for these specific
employees.-With this exception the testimony of Johnson and
Pruett as to the occurrences at this meeting is credited.
D. The Termination of Johnson and Pruett
In January 1970, both Johnson and Pruett received letters
from Respondent advising that they were required to come
to the plant every 60 days and sign a register in order to
maintain their seniority with Respondent. Both employees
complied with this directive. The last time they appeared at
the plant for this purpose, on May 27, 1970, they were in-
On cross-examination, Starr denied that the employees asked if they
could be "transferred to another job," but when reminded of his previous
testimony, agreed that they wanted to know if they "could get out of that
particular job," and that he had told them he had no other job available
Helms recalled somewhat vaguely ("it seemed to him") that the employees
were complaining about working the second shift and not being able to do
the job. He stated that he told them that it was impossible to transfer them
anywhere else.
BRAD 'S MACHINE PRODUCTS, INC.
formed that they had been terminated. According to John-
son, on this occasion, when she got into a conversation with
Smith, the personnel manager , about her position on the
recall list, after Smith ascertained that she had been laid off
in November, he advised her that she was "in the inactive
file," that she was "no longer with the Company." He advised
her that the Respondent's policy "states that after six months
[on layoff] you are no longer with the Company." Smith also
advised Pruett to the same effect.
The policy to which Smith referred was adopted as part of
a comprehensive written statement of policies published by
Respondent in late February 1970, after a large layoff of
employees in January and a smaller layoff in February 1970,
which decreased Respondent's employment to about 176 em-
ployees.
Included in this statement of policies was a listing of six
factors which would serve to break an employee's seniority
status (and thus the employee's tenure) with Respondent.
Only the first two factors are of significance here; they are:
"1. Voluntary quit or laid-off employees request," and "2.
Lay-off in excess of 6 months." Glenn Smith, who was per-
sonnel manager when these policies were written but no
longer works for Respondent, testified that when this policy
was adopted, its effect was to sever the employment status of
the four employees then on voluntary layoff from Respond-
ent, including Johnson, Pruett, and Robinson, so that they
were no longer -subject to recall.' Smith asserted that this
policy, in effect equating a voluntary layoff to quitting em-
ployment, was adopted to discourage a substantial number of
employees who were seeking voluntary layoffs at the time.
E. Respondent's Alleged Hostility to the Union
In January 1969, the Union failed to secure a majority of
votes cast in a representation election among employees at
Respondent's plant. Mildred Johnson was prominent among
those employees who openly favored the Union, and was an
observer for the Union at the election. Gladys Pruett was not
active on behalf of the Union but maintained a close associa-
tion with Johnson in and out of the plant. Both agree that no
supervisor spoke to them with respect to the Union, specifi-
cally. However, according to Pruett's undenied testimony,
setup man Rothell at one time told her that she "should not
have anything to do with Mildred because you know they are
trying to get rid of her."' Pruett stated that there was no
further comment with respect to this.
Respondent takes the position that Rothell is not shown to
have been a supervisor at the time, and, therefore, it is not
responsible for his comments. However, the record shows
that Rothell possessed and exercised certain authority over
employees in the Rework Department frequently held by
supervisors, (e.g., employees could leave their work only with
his permission, he could grant passes to leave the plant) and
he was unquestionably a conduit between management and
the employees. Further, he appears to have occupied a posi-
tion in his department somewhat equivalent to that held by
McGlathery in her area and there seems to be no question of
' In his brief, General Counsel contends that when Pruett and Johnson
spoke to Smith on May 27, he told them "that since they had taken a
voluntary layoff their seniority had terminated " (Brief, p 3) This is rejected.
The citation is to testimony of Johnson, who, as has been noted, testified that
Smith said she was terminated' for being on layoff for 6 months. Thereafter,
at the transcript page cited by General Counsel she appeared to agree that
Smith told her on that occasion that "a voluntary layoff would terminate
[her] seniority," but immediately thereafter asserted, "No, he did not tell me
it would end my seniority. He just told me I was no longer with the Com-
pany, that I was on the inactive list."
4 Through error, the transcript omits the word "not" in this statement.
279
her supervisory authority. In any event, it is clear that Re-
spondent placed Rothell in a position in which the employees
would reasonably conclude that he spoke for the Respondent,
and must bear responsibility for his statement to Pruett in the
circumstances.
McGlathery, who was a supervisor, but not in the area in
which Johnson and Pruett worked, testified to several conver-
sations of supervisory personnel concerning the Union, and,
in one case, Johnson specifically. In one such conversation,
McGlathery spoke to General Manager McCarver about an
employee who had been discharged. General Foreman Shur-
bune was present at the time. McGlathery stated that
McCarver told her "he didn't want to talk with me about it.
She [the discharged employee] was one that was for the
Union. Was gone and we would get rid of the rest of them."
Thereafter, possibly in September or October 1969, accord-
ing to McGlathery, she was in a group with McCarver and
several lead girls who were laughing and apparentlyin good
spirits, when McCarver told her that she should get back to
work, that Respondent needed to "find out who was for the
Union and who wasn 't." When one of the lead girls asked, "is
that starting up again," McCarver replied, according to
McGlathery, "yes," that the year was about up, that there
was a need to find out who was and who was not "for it," for
the purpose of getting "rid of them."
McGlathery stated that about this time she overheard a
conversation between supervisors James Shurbune and Den-
nis Miller in which Miller asked Shurbune what "they" were
going to do about Mildred Johnson, to which Shurbune re-
plied that "we have got to figure out a way to get rid of them."
In January 1970, McGlathery testified, she had a conversa-
tion in which Battles, her supervisor (who had also been the
supervisor over the Rework Department in which Johnson
and Pruett worked), asked her, at the request of Quality
Manager Starr, to "get a list of all the inspectors on the line
that were for the Union." In response to her questions, Bat-
tles stated that there was going to be a layoff in which Re-
spondent was not going to follow seniority, but was "going
to keep the ones they wanted and let the rest of them go."
She also related an incident in February 1970, when Man-
agement Official Helms asked her, in an offensive manner,
whether one of the employees nearby was for the Union.
McGlathery replied that she didn't know, asking whether
Helms intended to get rid of him. The record does not show
Helms' reply.
McGlathery also testified concerning several conversations
in 1969 with Wayne Fairlie, whom she identified as a
production supervisor (and from whom it is clear she took
orders and instructions concerning the discipline of other
employees), in which Fairlie advised her of plans to arrange
the discharge of an employee whom Respondent had agreed
to reinstate pursuant to a settlement agreement with the
Board. Although the employee in question was in fact finally
terminated, the sequence of affairs did not follow the time
sequence which Fairlie related to McGlathery , as she re-
called.'
Of the supervisors referred to by McGlathery, only Shur-
bune and Helms testified. Helms did not comment on McGla-
thery's testimony. Shurbune at the time was a general fore-
man with responsibility for assembly line operations, having
assembly line supervisors under him directly supervising the
operations. He stated that he did not have direct supervision
of inspection operations, which were the responsibility of
3 A charge was filed (10-CA-7963) alleging this termination as a viola-
tion the Act. On October 10, the Regional Director refused to proceed on
the grounds of "insufficient evidence." The General Counsel affirmed this
decision on appeal.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quality Assurance Manager Starr , under whose general
supervision McGlathery , as well as Johnson and Pruett,
worked.
Shurbune specifically denied discussing Union activities of
Johnson or Pruett with the employees or with any supervisor.
In particular, Shurbune denied that he said to Supervisor
Dennis Miller, or to any other supervisor , that "we are going
to get Johnson and them ," or any like comment. ' In support
of this denial, Shurbune insisted that these employees did not
work for him , but for Starr, that he did not have daily deal-
ings with them , and did not interest himself in the problems
of the two employees . Nevertheless, the record indicates that
the assembly operations were closely related to the Rework
Department (among other things, in Shurbune's words, his
assembly line supervisors "worked alongside" the supervisors
under Starr ; also when Rework was shut down , it was inte-
grated into the production processes and employees used
interchangeably), and Shurbune is shown to have close con-
tact with both Kirkus and Rothell with respect to the prob-
lems of the Rework employees , as well as being personally
knowledgeable about the Rework Department . Indeed, Re-
spondent used him as a witness to give considerable testimony
concerning the situation in the Rework Department during
the time in question . In addition , Shurbune was aware almost
immediately , from conversations involving Rothell, that
Johnson and Pruett were unhappy about their transfer to the
second shift . According to Shurbune , also, Kirkus discussed
with him the problems the transferred employees were having
on the second shift, before the employees and Kirkus went
into Starr's office together. Shurbune stated that he told Kir-
kus, in the presence of the employees , at that time , that if
Kirkus wanted , Shurbune could make places for these em-
ployees in his operations.
Respondent also argues that McGlathery, who had been
discharged by Respondent and who initiated steps to make
the Board agents aware of her knowledge, is biased against
Respondent and should be discredited . I carefully observed
McGlathery , and have carefully considered her testimony,
and do not believe that her testimony should be discredited
on the basis of bias. Further , her undenied testimony estab-
lishes Respondent's hostility toward the Union, its desire to
be rid of Union adherents , as well as the general knowledge
that Johnson was quite active in the Union . Shurbune's com-
ment to which she testified is consistent with the remaining
part of her testimony which is not denied. It is further consist-
ent with the comment made by Rothell to Pruett, noted
above. I am further convinced that Shurbune was much bet-
ter informed as to Johnson 's Union activities than he would
admit (he did recall that she had been the Union observer in
the election , but asserted he had no other knowledge of her
identification with , the Union), and if he did not have daily
dealings with the employees in the Rework Department, as
he says, he certainly was informed about its operations and
the employees engaged in it. On the basis of observation of
the witnesses and consideration of their testimony, in the
context of the whole record , McGlathery's testimony con-
cerning the matters set forth above is credited as setting forth
a substantially accurate account of the matters concerned.
The record further shows that though Johnson had not
engaged in any overt Union activities for some months before
her layoff in November , beginning in February 1970, she
resumed these activities , passing out literature and securing
signatures on Union cards outside the plant gates. One of
6 Miller no longer works for Respondent The hearing was recessed, upon
request, for 6 days to give Respondent an opportunity to locate Miller, but
counsel stated upon resumption of the hearing that he had been unable to
find him.
those who took cards from her at that time was Supervisor
Shurbune . A second election was conducted among Respond-
ent's employees in March or April 1970. Johnson again acted
as observer for the Union. The results of the election are not
shown.
II ANALYSIS AND CONCLUSIONS
This case presents some perplexing problems. At the outset
the facts raise questions concerning the validity of Respond-
ent's decision to transfer Johnson and Pruett to the second
shift. Thus Manager Starr had been informed by the second
shift supervisor, Kirkus, on more than one occasion prior to
the transfer of Johnson and Pruett to the second shift that the
employees were unlikely to be able to do the work. It is
admitted , at least by Helms, who was Starr's superior, that
the positions to which they were transferred would likely
require long training . In addition , if he was not aware of it
before, Starr was also informed by Johnson and Pruett before
the actual transfer that this action would cause them a hard-
ship and would probably result in their having to leave Re-
spondent 's employment . And it appears that both were con-
sidered long term employees whom Respondent would prefer
to retain . Nevertheless there is no indication that Starr, or any
other member of management , made any effort to find a place
in which these employees might be better retained. Other
employees from the Rework Department had recently been
placed on the first shift, as well as on the second . That there
were other options available is shown by the fact that, after
the employees were transferred and were having difficulties,
Supervisor Kirkus was able to get General Foreman Shur-
bune to agree that he would find places for them in the
production operations , if desired.
On the other hand, Respondent asserts that it does not
permit employees to select shifts, and has a policy of transfer-
ring only to open positions . It was testified that the only open
positions at the time in the departments Starr supervised were
on the second shift . There is no evidence to the contrary.
There is no question in my mind but that Respondent made
every effort to persuade the employees involved here to accept
a voluntary layoff. Although some of the arguments used by
Supervisor Kirkus were borderline , I do not believe that the
employees were compelled to accept layoff status, except for
the difficult position in which they had been placed by their
transfer to the second shift. Among the arguments used to
induce the employees to go on layoff, rather than remain, was
the promise that they would be recalled in order of seniority
once work got underway again.
However, after these employees had accepted layoff status
Respondent changed the rules of the game by adopting poli-
cies which equated voluntary layoff to quitting employment
(and formulating the rule so that it would apply retroac-
tively), and by providing that an employee's right to reinstate-
ment would expire after 6 months on layoff . There is no doubt
that those provisions of the new rules terminating employees
on voluntary layoff were adopted with the four employees
then in that status specifically in mind . Indeed, Smith, who
had been hired in January 1970 as personnel manager, tes-
tified that the rule severed the employment of these em-
ployees and terminated their right to recall . Smith asserted,
nevertheless, that the purpose of the rule was to discourage
future applications for voluntary layoffs. However, it is also
quite obvious that Respondent , which had innovated and
encouraged the practice , could equally have rescinded the
practice for the future without terminating those employees
whom Respondent had previously induced to accept a volun-
tary layoff in the past.
BRAD'S MACHINE PRODUCTS, INC. 281
Moreover, upon close analysis, it becomes manifest that
the 6-month cutoff in seniority for laid-off employees was also
weighted against those employees who entered on layoff
status in November 1969. Thus the 6-month rule was adopted
in late February 1970, shortly after Respondent's major
layoffs in January and February. But at that time, Johnson,
Pruett, and others who went on layoff status on or about
November 11, 1969, had then been on layoff for over three
months, and under the retroactive application of the rule they
would be terminated if not recalled in only about 2% months
after adoption of the rule.
It also seems evident that except for the fact of acceptance
of layoff status in November, and the retroactive application
of the new rules to that status, Johnson and Pruett (both of
whom carefully continued to sign Respondent's roster in the
interim to preserve their seniority status) would have been
called back to work shortly after they were stricken from
Respondent's active rolls. Respondent began to recall a few
employees in May.' From a low of 176 in February 1970,
Respondent had built up its work force to about 320 at the
time of the hearing.
The facts present, in my opinion, a very close case. There
is no question but that Respondent is hostile to the Union and
desired to get rid of Johnson because of her Union activities.
Certainly the chain of circumstances that resulted in her
termination, together with others similarly placed, is highly
suspicious. However, I cannot say that Respondent's reasons
for transferring Johnson and Pruett to the second shift were
not truly related to the proper operation of its business, even
though the transfer made it very difficult for Johnson and
Pruett to continue working for Respondent. This being so, it
cannot be held that the encouragement of the employees to
accept a voluntary layoff was discriminatory on the facts in
this case.
The matter boils down then, in the last analysis, to the issue
of whether the seniority rules promulgated in February 1970
were designed specifically "to get Johnson," I do not believe
that a preponderance of the evidence supports that conclu-
sion. Respondent had just undergone massive employee
' General Counsel's witness Katherine Freeman (also openly active on
behalf of the Union in the past), who had less seniority than Johnson or
Pruett and had been transferred to the second shift from Rework before they
were transferred, was laid off on January 30, 1970, and was recalled to work
on May 6.
layoffs and displacements. The February rules, drawn by the
newly employed personnel manager and General Manager
McCarver, appear (insofar as the issues herein are concerned)
adapted to the problems Respondent faced in dealing with
large numbers of laid-off employees, notwithstanding the
rather arbitrary treatment of employees then on voluntary
layoff. Nor has it been shown that these rules were applied
unequally among the employees.
For the reasons stated, on the record as a whole, though
the matter is not free from doubt , it is found that the General
Counsel has failed to establish by a preponderance of the
evidence that Respondent laid off or failed to recall Mildred
F. Johnson and Gladys I. Pruett to work because of Union
membership or activities, or because of concerted activities,'
and it will be recommended that the complaint in this matter
be dismissed.'
Upon the basis of the foregoing findings of fact, and the
entire record in this case, the Trial Examiner makes the fol-
lowing
CONCLUSIONS OF LAW
1. The Respondent is an employer 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 Respondent has not engaged in unfair labor prac-
tices in violation of the Act as alleged in the complaint.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclu-
sions of law and upon the entire record in this case, it is
hereby recommended that the complaint be dismissed in its
entirety.
General Counsel argues that by accepting a voluntary layoff, these
employees assisted other employees who otherwise would have been laid off,
and thus should be considered to have engaged in concerted activities pro-
tected by the Act, with the right to be reinstated to the first available opening
in their own or a substantially similar job. This is rejected The employees
were clearly acting in their personal , individual interests , not in the interests
of working conditions of the group
' I have considered the possibility that Rothell's statement to Pruett that
she should not associate with Johnson , and the instruction to McGlathery
to draw up lists of Union employees to be considered for layoff (see Elder-
Beerman Stores Corp., 173 NLRB No 68), might be found violative of the
Act. However, these matters were not alleged in the complaint, and in'the
circumstances, including General Counsel's disclaimer that McGlathery's
testimony was presented as proof of violations of the Act, I do not believe
that a finding that these matters violated the Act is justified