Garrett Flexible Products

National Labor Relations Board - Board Decisions

Jun 13, 1984

270 N.L.R.B. 1147 (N.L.R.B. 1984)

OARRETT FLEXIBLE PRODUCTS
Garrett Flexible Products, Inc. and Plastic Proces-
sors, Inc. and Sharren R. Davis. Cases 25-CA-
11450, 25-CA-12174, 25-CA-12822, and 25-
CA-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. Re-
spondent 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 delegat-
ed its authority in this proceeding to a three-
member 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 Flexi-
ble committed numerous violations of Section
8(a)(1) of the Act by interrogating employees, con-
veying the impression of surveillance, and threaten-
ing 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 Supervi-
sor Wood and his brother-in-law Gamble at the lat-
ter'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 administra-
tive 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 re-
versing 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 conversa-
tions with employees Anderson and Sumner occurred before Respondent
Garrett's "do's and don'ts" meeting, we do not rely on the judge's state-
ment 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 vio-
late the Act, or has engaged in such egregious or widespread misconduct
as to demonstrate a general disregard for employee's fundamental statuto-
ry rights. Hickmortt Foods, 242 NLRB 1357 (1979). Inasmuch as Respond-
ents' unlawful acts are not of such a nature, we shall modify the recom-
mended 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 televi-
sion one evening when Wood asked Gamble if he
knew of the upcoming union meeting at the Gar-
rett State Bank and whether he was going to
attend. Gamble answered yes. Nothing else was
said as Wood and Gamble continued to watch tele-
vision. 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 un-
lawfully created an impression of surveillance (see
fn. 34 of the judge's decision). 4
The judge also found, inter alia, that Garrett vio-
lated Section 8(aX3) and (1) of the Act by termi-
nating 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 com-
pany 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 be-
cause 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 circum-
stances 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 im-
pression of surveillance in violation of Sec. 8(a)( I) of the Act.
1147
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 estab-
lish that Garrett's decision to terminate its laid-off
employees after 120 days in that status was unlaw-
fully 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 ter-
mination issue in its case-in-chief except to submit
into evidence a copy of the October 1980 termina-
tion 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 moti-
vated.
In so finding, we note that Garrett's layoff and
recall practices herein were found not to be viola-
tive of Section 8(aX3). The layoffs were necessitat-
ed by legitimate business concerns, and the selec-
tion of employees for layoff and recall was based
on lawful considerations. We also note that the un-
lawful 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 Wet-
zel'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 viola-
tion 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 com-
plaint.
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 shut-
down to dissuade them from engaging in union ac-
tivities, 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 according-
ly, 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 terminat-
ed 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
(a) Coercively interrogating employees about
their union activities and the union activities of
other employees, and threatening employees with
reprisals including discharge and plant shutdown.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its facilities in Garrett, Indiana, copies
of the attached notice marked "Appendix.""
Copies of the notice, on forms provided by the Re-
gional Director for Region 25, after being signed
by Respondent Garrett's authorized representative,
shall be posted by Respondent Garrett immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent
consolidated complaint at the opening of the trial, was not within the
scope of a timely filed charge nor was the issue fully litigated. In light of
our finding that the Oeneral Counsel failed to prove that the terminations
were unlawfully motivated, we need not reach these issues.
6 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1148
GARRETT FLEXIBLE PRODUCTS
Garrett to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps Respondent Garrett has taken to comply.
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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively interrogate you about
your union activities and the union activities of
other employees, or threaten you with reprisals in-
cluding discharge and plant shutdown.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
GARRETT FLEXIBLE PRODUCTS, INC.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. These
consolidated cases were heard in Auburn, Indiana, on
June 2, 3, 4, 29, and 30; July I and 2; and August 10, 11,
and 12, 1981. The charges and amended charges were all
filed by Sharren R. Davis (Charging Party) and gave rise
to several complaints, amended complaints, orders con-
solidating cases, and still further amendments to the con-
solidated cases at the trial.'
' The original charge in Case 25-CA-11450 was filed October 16,
1979. The aforenoted charge gave rise to a settlement agreement which
was subsequently withdrawn by notice of withdrawal of settlement
agreement and determination to reinstate formal proceedings (G.C. Exh.
l(v)). The complaint and notice of hearing in 25-CA-12174 issued Janu-
ary 10, 1980. An order consolidating cases, complaint, and notice of hear-
ing in Cases 25-CA-12174 and 25-CA-12822 issued on December 9, 1980
amended December 10, 1980. A further order consolidating cases, com-
plaint, and notice of hearing in Cases 25-CA-11450, 25-CA-12174, and
25-CA-12822 issued on December 11, 1980. A still further order consoli-
dating cases, complaint, and notice of hearing in Cases 25-CA-11450, 25-
CA-12174, 25-CA-12822, and 25-CA-12822-2 issued on June 15, 1981.
In essence it is alleged that about June 20 and July 11,
1980, Garrett Flexible Products, Inc. (Respondent Gar-
rett) selected 18 employees for layoffs, failed and refused
to recall said employees, and finally discharged said em-
ployees because of their activities in support of Interna-
tional Molders' and Allied Workers' Union, AFL-CIO
(Molders' Union or Union), thereby violating Section
8(a)(3) and (1) of the National Labor Relations Act (the
Act).2 In this connection it is also alleged that since
about September 8, 1980, Respondent Garrett and Plas-
tics Products, Inc. (PPI and collectively Respondent) has
comprised a single integrated enterprise within the mean-
ing of Section 2(2) of the Act and that PPI inter alia
hired employees from the outside rather than recalling
Respondent Garrett's laid-off employees in violation of
Section 8(aX3) of the Act.
It is alleged that about June 23, 1980, Respondent Gar-
rett further violated Section 8(a)(3) by discharging
Jimmy Gamble, a leading union organizer. Further, it is
alleged that Respondent Garrett violated Section 8(a)(4)
and (1) of the Act by discriminatorily promulgating and
enforcing a rule against talking with Sharren Davis and
generally imposing less desirable working conditions by,
inter alia, changing Davis' working hours.3
Still further, it is alleged that Respondent independent-
ly violated Section 8(a)(l1) of the Act by engaging in,
inter alia, acts of interrogation, surveillance, and threats
of reprisals including discharge and plant shutdown.
The Respondent's several answers (amended further at
the trial) conceded, inter alia, jurisdictional facts and the
supervisory and agency status of certain individuals but
denied such status as to other alleged individuals. 4 Re-
spondent Garrett and Respondent PPI denied that said
companies at any time material herein comprised a single
employer within the meaning of the Act and both com-
panies further denied that they committed any unfair
labor practices. Respondent also contended that a
number of the allegations including the single employer
allegations are time barred by Section 10(b) of the Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after careful consider-
ation of the posttrial briefs," I find as follows
I The alleged discriminatees are Jim Anderson, Craig Benson, Denise
Brown, Tyron Combs, Wilburn Combs, Sharren Davis, Ralph Erhardt,
Nyoka Gamble, Janet Halsey. Barry Harden, Peggy Helblig, Dexter
Howard, Bernadette Meyer, Connie Newland, Jane Warfield Shibler,
Stanley Stone, Esom Sumner, and Barbara Vogts.
I As will be treated more fully infra, the General Counsel contends
that Respondent Garrett changed Davis' hours shortly after the 60-day
posting period under the settlement agreement in Case 25-CA- 11450 be-
cause she filed charges with the Board.
4 The parties stipulated, that record reveals, and I find that Jackson
Wetzel, Richard Schorey, Charles Wood, Otis Hunter, Andrew Gamble,
and Jackson Barnett are statutory supervisors and agents of Respondent
within the meaning of the Act. Further, it is now admitted the record
supports, and I find, that Edwin Thomas and Charles Taner are now, and
have been at all times material herein, supervisors and agents within the
meaning of the Act. (See Respondent's Findings of Fact and Conclusions
of Law, October 19, 1981).
I Counsel for Respondent Garrett objected to the General Counsel's
posttrial brief on the basis that it failed to comport with the judge's in-
structions to submit "findings of fact" and requested that said posttrial
brief be stricken. Further, counsel for Respondent petitioned for leave to
Continued
1149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
Respondent Garrett is an Indiana corporation engaged
in the business of designing and manufacturing rubber
component parts at two plants located in Garrett, Indi-
ana. During the past 12 months, a representative time
frame, Respondent Garrett has derived revenue in excess
of $50,000 directly from points outside the State of Indi-
ana. It is admitted, the record supports, and I find that
Respondent Garrett is now, and has been at all times ma-
terial herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
Plastic Processors, Inc. (PPI) is an Ohio corporation
engaged in the manufacture, sale, and distribution of
plastic products. In connection therewith, PPI has, since
1976, maintained a facility in Newberry, Ohio, and since
about September 1, 1980, it has maintained under lease
from Respondent Garrett a second facility in Garrett, In-
diana. During the 12-month period ending April 28,
1981, a representative time frame, PPI has (in connection
with the aforenoted business operations) derived revenue
in excess of $50,000 directly from points across state
lines. It is admitted, the record supports, and I find that
PPI is now and has been at all times material herein an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. (See Respondent's
Findings of Fact and Conclusions of Law dated October
19, 1981.)
As noted above, it is alleged and denied that since
about September 8, 1981, Respondent Garrett and PPI
have constituted a single integrated business enterprise
and a single employer within the meaning of the Act.
For reasons discussed infra, I find that the record failed
to establish the single employer relationship as alleged.
It is admitted, the record supports, and I find that the
International Molders' and Allied Workers' Union,
AFL-CIO, is now and has been at all times material
herein a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
Respondent Garrett's production and maintenance em-
ployees were represented by the International Union,
United Automobile, Aerospace and Agricultural Work-
ers of America, UAW, Local No. 1392 (UAW), pursuant
to a Board-conducted election and certification from Oc-
tober 15, 1968 (G.C. Exh. 2, art. 1, sec. 2), until January
29, 1980, at which time the UAW formally disclaimed in-
terest in representing the bargaining unit (R. Exh. 7).
The UAW was unable to obtain a union shop clause at
any time notwithstanding, inter alia, a strike in 1973
file a reply brief. First, I find no legally sufficient basis in the circum-
stances of this case to strike the General Counsel's brief. Further, it is
noted that counsel for Respondent has submitted a comprehensive brief
meeting all the substantive allegations. Moreover, the Board's Rules and
Regulations contain no provision for the filing of reply briefs. According-
ly, the request to strike General Counsel's posttrial brief and leave to file
a reply brief are hereby denied.
largely over this provision. By early 1979 only a few em-
ployees remained members of the UAW.
In December 1978, Sharren Davis (the Charging
Party) began working for Respondent Garrett in the spe-
cialty department on the first shift, from 7 a.m. to 3 p.m.
In March 1979, Davis' hours were changed so that she
started and completed her shift one-half hour later, 7:30
a.m. to 3:30 p.m. Davis testified that she was not pleased
with the change in hours leading her to examine certain
company material which had been given to her at the
time she was hired. According to Davis, she was un-
aware that the UAW was the bargaining agent until she
read the company material in March 1979. Soon after
Davis met with Richard Zellers, International representa-
tive of the UAW, and obtained union cards from him in
an effort to promote membership in the UAW. Davis
distributed these union cards at work and also set up a
union meeting but the employees showed little or no in-
terest in the UAW as none of the other employees at-
tended the meeting.
In June 1979, Davis learned about a job opening in the
large pressroom where, she asserted, only men were per-
mitted to work. Davis testified that she questioned Su-
perintendent Jack Barnett about job bidding and he told
her that there was not any such procedure. In September
1979, Davis filed a grievance asking that she be allowed
to bid on a higher paying job and that the contractual
posting requirements be met. Zellers informed Davis that
the grievance had been resolved by the Employer's post-
ing of the bid board.6 (R. Exh. 8, p. 2.)
About October 13, 1979, the hours in the specialty de-
partment including Davis' were again changed to com-
mence and end one half hour later, from 8 a.m. to 4 p.m.
which now conformed with the hours worked by most
of Respondent Garrett's employees. A few days later,
Davis filed unfair labor practice charges against the
Company and the Union in Cases 25-CA-I 11450 and 25-
CB-3923, respectively, alleging in essence that Respond-
ent Garrett practiced sex discrimination with regard to
her change in hours, job bidding, and other terms and
conditions of employment (G.C. Exh. l(a))7 and against
the UAW for nonrepresentation.8 The unfair labor prac-
tices against the Company culminated in an informal set-
tlement agreement approved by the Regional Director
for Region 25 on December 17, 1979. (See G.C. Exhs.
4(a)-(d).) In relevant part Respondent Garrett promised
as follows:
WE WILL NOT change the working hours or
other terms and conditions of employment of our
employees to discourage them from filing griev-
ances or engaging in other union or protected con-
certed activity.
6 The record discloses that there were two openings for press opera-
tors in December 1979 and that the Company complied with the posting
requirements (R. Exh. 6). Davis did not submit a bid for these positions.
7 About the same time. Davis filed similar charges with the Equal Em-
ployment Opportunity Commission (EEOC) and the Indiana Civil Rights
Commission. These charges were subsequently dismissed for lack of sub-
stantiation. (See R. Exhs. 9(a) and 9(b).)
' The charges against the UAW were dismissed on December 20,
1979. (R. Exh. 8.)
1150
GARRETI FLEXIBLE PRODUCTS
WE WILL reinstitute the working hours and condi-
tions of employment for Sharren Davis which she
had prior to September 17, 1979. (G.C. Exh. 4(d).)
The aforenoted provisions were stated in the notice
which was posted by Respondent Garrett on December
21, 1979, and remained posted for 60 days as required
under the terms of. the settlement agreement. Further,
Davis' hours were restored consistent with the terms of
the settlement so that her workday once again com-
menced at 7:30 a.m. and ended at 3:30 p.m. Within days
after Respondent Garrett first posted the 60-day notice,
another notice was posted instructing Davis and Kathy
Fugate, the two specialty department employees, 9 that
they had to remain in the timeclock area and could not
go into their department before 5 minutes to starting
time. Further, if either Davis or Fugate were absent or
late on any given day, the other had to wait until 8 a.m.,
at which time other employees reported to work, so that
an escort and a replacement for the missing employee
could be provided.
On February 26, 1980, Davis arrived at work early
and, when Fugate had not reported by 7:25 a.m., Davis
elected not to wait and proceeded to go into her depart-
ment by herself. For doing so, Beverly Thurman issued
Davis a written reprimand. (G.C. Exh. 3.) The Company
posted a notice a few weeks later announcing that as of
March 17, 1980, the starting time in the specialty depart-
ment would be 8 a.m., making reference therein to the
aforenoted Davis' incident whereby she went to her de-
partment alone before 8 a.m. (G.C. Exh. 16.) Further,
the notice explained that the change in hours was neces-
sary to standardize the starting time as 98 percent of the
employees start at 8 a.m. and "We can not have one
emp. [sic] in a dept [sic] by herself."10 (Id.)
On March 28, 1980,11 Ferdinand Thurman, owner,
president, and general manager of Respondent Garrett,
sold the Company's stock to Wetzel & Brooks, Inc., a
corporation owned largely by Jackson Wetzel. Wetzel
immediately succeeded Thurman as general manager but
under the terms of the transaction, Thurman continued
serving as president until September 28.12 In a letter to
' At the time Davis commenced working for Respondent Garrett there
were three full-time employees and one part-time employee in the spe-
cialty department. By January 1980, the night shift in the Specialty De-
partment had been eliminated and only Davis and Fugate reported at 7:30
a.m. Beverly Thurman, the wife of then owner Ferdinand Thurman, was
also employed in the aforesaid department but she worked part-time from
B a.m. to 12 noon. As noted previously, Beverly Thurman's supervisory
and/or agency status is in dispute. (See fn. 4 supra).
10 The General Counsel contends that Respondent Garrett never in-
tended to comply with the terms of the settlement agreement but rather
instituted changes in the specialty department only as reprisals for Davis'
activities vis-a-vis her grievance, unfair labor practice charges, and at-
tempts to resurrect the UAW. According to the Respondent the changes
were predicated on safety considerations, the specialty department being
somewhat isolated from other departments and buildings which comprise
the complex. For reasons discussed fully infra, I am unpersuaded that the
General Counsel has demonstrated by credible evidence that Respondent
violated the terms of the settlement agreement.
" All dates hereinafter refer to 1980 unless otherwise indicated.
i" It is alleged that Respondent Garrett, by Ferdinand Thurman, en-
gaged in various unfair labor practices before and after March 28, 1980.
According to Respondent. with the change in ownership on March 28,
Thurman was no longer a supervisor and/or agent of the company.
employees dated April 3, Thurman announced that Jack-
son Wetzel was the new general manager and that at a
later date Wetzel would also assume all of Thurman's
duties (G.C. Exh. 8). Thurman promised the employees
that his office door would always be open to them and
signed off as president. (Id.) Over the next several days
Thurman introduced Wetzel as the new general manager
at a series of meetings of supervisory and rank-and-file
employees. Thurman told the employees that Wetzel had
acquired control and was now number one and Thurman
was number two and a consultant to the Company.
Thurman continued to make almost daily appearances
throughout Respondent Garrett's complex although most
of his time was spent working in the laboratory as a
chemist in tandem with Bonnie Miller, a nonunit labora-
tory technician.
In early April Davis contacted Gurney Davidson, the
International representative for the Molders' Union, and
explored with him the mechanics of organizing employ-
ees for union representation. Davis began promoting the
Union to a number of employees, and some of them ex-
pressed a willingness to attend a union meeting. The first
union meeting was held on Saturday, April 19, in a room
at the Garrett State Bank, approximately 4 blocks from
Respondent Garrett's facilities and was attended by ap-
proximately 15 employees.'s Virtually everyone at this
meeting signed a union card and they were collected by
Davis and turned over to International Representative
Gurney.
On Monday, April 21, and during that entire week
Davis, assisted by other employees including James An-
derson, Ralph Erhardt, Dexter Howard, Jimmy Gamble,
and Esom Sumner, stepped up organizing efforts by dis-
tributing union cards at work and visiting employees at
their homes. Davis testified that a total of approximately
35 signed union cards were obtained, which she collect-
ed and then passed on to Gurney of the Molders' Union.
About April 23, Respondent Garrett received a letter
from the Molders' Union (not in evidence) advising it
that an organizational campaign was under way. Accord-
ing to Wetzel, he knew nothing of union organizational
activity until he received the aforenoted letter. On that
same day Wetzel summoned his supervisory staff and
using an article entitled, "What to do when the Union
Knocks" as a frame of reference delineated the "do's"
and "don'ts" in a union election campaign. (R. Exh. 48.)
Plant Superintendent Eddie Thomas1 4 informed Wetzel
at this meeting that employee Charles Legras was threat-
ened with loss of job unless he signed a union card. The
next day, Wetzel posted a notice to employees dealing
Is Among the employees identified at this meeting were Wilburn
Combs, Tyron Combs, Sandy Cooper, Sharren Davis, Ralph Erhardt,
Jimmy OGamble, Nyoka Oamble, Bud Sumner, Esom Sumner. Pat
Sumner, and Barbara Vogts.
1' Respondent OGarrett's complex is composed of two plants. One plant
is located at 1100 South Cowen Street, Auburn, Indiana (hereinafter
Cowen Street Plant), and the other in close proximity is situated at 600
East Quincy Street, Auburn, Indiana (hereinafter Quincy Street Plant).
Thomas hus been at all material times Plant Superintendent at the Quincy
Street Plant. The parties have at times referred to Auburn and Garrett
interchangeably.
1151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with pressure and coercion to sign union cards and
wrote as follows:
[W]e have already been advised that these union or-
ganizers . . . in one case, stated that the
employee[s] would lose their job[s] if they did not
sign this card. THIS IS A VIOLATION OF YOUR
RIGHTS! If you have been subject to this, you can
request the return of your card, or file a complaint
with NLRB at the address below. [G.C. Exh. 18.]
According to the General Counsel, Respondent Gar-
rett countered the increased union activity during the
week of April 21 by engaging in various acts of surveil-
lance, interrogation, threats of reprisals, including dis-
charge and plant shutdown, and otherwise unlawfully
interfered with the Union's organizational efforts. For
example, James Anderson and Esom Sumner testified
that on April 21 and 22 Supervisor Otis Hunter made
various statements to them, individually and jointly, to
dissuade them from supporting the Union, including a
threat that Ferdinand Thurman would close the doors to
the plant before he would allow a union. Further, An-
derson and Sumner ascribed to Supervisor Hunter, inter
alia, inquiries regarding the union meeting and the pass-
ing around of union cards. Sumner testified that Plant
Superintendent Thomas also questioned him about pass-
ing out union cards and threatened that Thurman would
shut down operations before dealing with the Union. Ac-
cording to the testimony of employee Dexter Howard,
Supervisor Charles Wood made a similar threat to him
that Thurman would not deal with the Union but would
shut down the plant first. Employee Jane Shibler (War-
field) testified that Floorperson Marilyn Omspacher (su-
pervisory and/or agency status disputed) tried to dis-
suade her from supporting the Union, pointing out, inter
alia, the impotence of the previous union (UAW) and
opined that Thurman would close down the factory
rather than deal with the Union. 1 5
On Saturday, May 3, at the Garrett State Bank, the
Molders' Union conducted a second meeting. Esom
Sumner and James Anderson testified that just before the
meeting started, they spotted Cowen Street Plant Super-
intendent Jack Barnett in his automobile make two trips
around the block while driving slowly. According to the
General Counsel, Barnett was attempting to learn the
identity of the employees at the meeting and therefore
engaging in unlawful surveillance. The record discloses
little union activity after the May 3 meeting.'6
Around mid-May, Respondent Garrett began experi-
encing a business decline. During May and June custom-
er orders fell off approximately 25 to 30 percent. Ac-
cording to Wetzel, the loss of orders was not anticipated;
it was not part of the normal business cycle. In early
June, Wetzel determined that a 10-percent reduction in
Is These, as well as other acts, statements, and conduct by Respondent
Garrett's supervisors and/or agents will be discussed infra in a separate
section entitled "Section 8(aXlI) Allegations."
" On May 7, Davis filed new 8(aXl) charges in Case 25-CA-12174
alleging that Respondent Garrett since about April 23, interrogated its
employees, engaged in surveillance and/or conveyed the impression of
surveillance, and threatened discharge and other reprisals if they formed,
joined, or assisted a union. (G.C. Exh. I(c).)
the rank-and-file complement was necessary to meet the
economic exigencies. This was to be accomplished by
layoffs and the elimination of the maintenance helper and
mill helper positions. On June 11, Wetzel prepared a
memorandum for Production Coordinator Richard
Schorey outlining the procedure to be used in selecting
employees for layoffs (G.C. Exhs. 1l(b)-(c).)
Wetzel devised a 50-point system for judging employ-
ees marked for layoff and instructed Schorey to consider
only employees with less than 2 years' service. (Id.) The
selection criteria under the rating system were: work
performance (quantity and quality), job knowledge, ab-
sences for the most recent 6-month period, reprimands
and warnings for the most recent 6-month period, and
job cooperation and attitude (G.C. Exh. Il(c).) Each of
the foregoing factors was assigned 10 points, the higher
the better in terms of an employee's chances to be re-
tained.
On Friday, June 20, the first group of employees was
laid off. 7 That same day, Jimmy Gamble, an employee
with more than 2 years' service, did not report for work
and was terminated Monday, June 23.10 On July 7,
Wetzel determined that further layoffs were necessary
and instructed Schorey to lay off an additional 20 per-
cent of the hourly employees (G.C. Exh. I1(a)) using the
same guidelines as set forth in the June memorandum.
On July 11 the second group of employees were laid
off. 9
In August 1980, Wetzel became the principal owner of
Plastic Processors, Inc. (herein also PPI), an Ohio corpo-
ration which maintained its only plant in Newberry,
Ohio. On August 12, PPI leased 10,000 square feet of
Respondent Garrett's Quincy Street Plant.20 In Septem-
ber PPI opened a second plant at the aforenoted leased
premises. In connection therewith, PPI moved some
equipment and transferred two employees from the New-
berry facility to help set up the new plant. At the same
time, PPI hired Denise Brown, an employee who had
"7 The employees laid off were: James Anderson, Barbara Harden,
Peggy Helblig, Bernadette Meyer, Stanley Slone, Esom Somner, Barbara
Vogts, Jane Warfield, Tyron Combs, Dexter Howard, and Charles
LeGras. Combs and Howard were millroom helpers and that position
was eliminated. LeGras was the only employee laid off with more than 2
years' service. According to Wetzel, since May, he had been providing
"make-work" jobs for LeGras, a general laborer, because the work he
had been doing for the previous 6 to 8 months had run out. LeGras is not
an alleged discriminatee. The others laid off had received the lowest
scores under the rating system. (See G.C. Exh. 13.) Immediately before
the layoff Respondent Garrett employed approximately 88 hourly em-
ployees. (R. Exh. 54).
t" On April 17, 1980, Gamble received a final warning because of poor
attendance. (R. Exh. 12(a).) As noted previously, Gamble's discharge is
alleged independently as a violation of Sec. 8(aX3).
" ' The employees who were selected and laid off on July II are as
follows: Denise Brown, Wilburn Combs, Sharren Davis, Nancy Depew,
Ralph Erhardt, Kathy Fugate, Janet Halsey, Jerry Huth, Beatrice
McPherson, Connie Newland, Richard Newland, Beverly Thurman and
Jim Treesh. (GC. Exh. 13.) It is alleged that the selection process for
determining which employees were to be laid off on June 20 and July II 1
was discriminatory and in violation of Sec. 8(a)(3). The General Counsel
does not dispute that layoffs were necessary due to a business decline.
10 The parties to the lease agreement are Garrett Sales, Inc. (lessor)
and PPI (lessee); it was signed by Ferdinand Thurman and Jackson
Wetzel as president of lessor and lessee, respectively. (G.C. Exh. 10.)
1152
GARRETT FLEXIBLE PRODUCTS
been laid off by Respondent Garrett on July 11. The
new PPI plant became operational in October. '
By letter dated October 23 Respondent Garrett termi-
nated those of its employees who had been on layoff
status since June 20 or 120 days. (G.C. Exh. 23.) The ter-
mination letter stated the Company's policy in relevant
part as follows:
The Company policy . . . is to consider employees
not recalled, within (120) one hundred and twenty
days from lay-off date, as terminated due to the lack
of work and, therefore, will not be recalled from
lay-off.
Those employees wishing to return to work at Gar-
rett Flexible products will be considered with other
applicants when an opening occurs.
In November, Respondent Garrett, by letter contain-
ing the identical message as the October 23 letter, termi-
nated the employees who had been laid off on July 11.22
The laid-off employees, who were recalled or rehired
after they had received the termination, letters, returned
as new employees.
B. Discussion and Conclusions
The several amended consolidated complaints have
given rise to a multitude of disputed allegations which
are discussed below seriatim under headings as follows:
(1) Disputed supervisory and/or agency allegations,2 3 (2)
The settlement agreement and related allegations, (3)
Section 8(aXl) Allegations, (4) 8(a)(3) allegations, and (5)
The single employer relationship and related allegations.
1. Disputed supervisory and/or agency allegations
a. Ferdinand Thurman
The record discloses that Ferdinand Thurman was
owner, president, and general manager of Respondent
Garrett until March 28, 1980. It is undisputed that, as
such, Thurman was a statutory supervisor and agent.
The dispute is over Thurman's alleged supervisory
and/or agency status after March 28.
As previously noted, on March 28, Thurman sold the
Company to a corporation largely owned by Jackson
Wetzel who thereupon succeeded Thurman as general
manager. Thurman, however, continued to serve as
president until September 28, 1980, and was still a
member of the board of directors at the time of trial.
" The record disclosed, inter alia, that PPI hired Janie Richardson on
September 30, Bradie Anderson (part-time) on October 6, and Dale Lydy
on October 9. (R. Exh. 8.) The General Counsel contends that Respond-
ent Garrett and PPI comprised a single-employer relationship and there-
fore PPI was obligated to recall Respondent Garrett's laid-off employees
before hiring new employees.
22 At the trial, the General Counsel amended the several consolidated
complaints to allege that Respondent Garrett, by its termination letters,
unlawfully discharged the laid-off employees in violation of Sec. 8(aX3).
The Respondent argues, inter alia, that this allegation is not encompassed
by any of the charges and is therefore time-barred by Sec. 10(b).
2" Many of the allegations turn on the continued supervisory and/or
agency status of Ferdinand Thurman after the sale of the business. As
such, Thurman's disputed status is treated at the outset.
According to Respondent, under the various legal doc-
uments which transferred control and ownership from
Thurman to Wetzel on March 28, the former "retained
no actual authority to deal in any capacity with any em-
ployee of Garrett Flexible, except Mr. Wetzel." I find,
however, in agreement with the General Counsel that
the issue of Thurman's authority turns on whether the
employees had just cause to believe that Thurman was
acting for and on behalf of management, citing Machin-
ists Lodge No. 35, v. NLRB, 311 U.S. 72, 80 (1940);
NLRB v. Ace Comb Co., 342 F.2d 841, 844 (8th Cir.
1965).
If, as intended by Respondent Garrett, that on March
28, Thurman was divested of all managerial authority to
deal with employees, such change was not adequately
communicated to employees. For example, Thurman's
letter of April 3 to employees, inter alia, described
Wetzel as "a qualified and suitable person to help [him,
Thurman] in the overall management of Garrett Flexible
Products." (Emphasis added, G.C. Exh. 8.) Clearly such
statement contemplates collaboration for the immediate
future rather than signals the end of Thurman's manage-
rial interest in the Company. In this connection Thurman
promised assistance to Wetzel "for many years to come."
While Thurman also advised in the letter that "at a later
time [Wetzel] will assume all of [Thurman's] total
duties," no time certain was specified. Further, Thurman
reminded employees that his "office door will always be
open."
It is undisputed that over the next several days Thur-
man introduced Wetzel to employees at a series of meet-
ings as general manager with the number one ranking in
the Company and that he, Thurman, was now in the
number two position and a consultant to Wetzel. I find,
contrary to Respondent, that it is hardly material that
possibly one or more of the employees concluded from
these meetings that Thurman had been stripped of all
managerial interest given the likelihood that as many or
more employees probably concluded that Thurman
merely dropped a notch in the company's hierarchy. In
this regard it is noted that the record is devoid of testi-
mony tending to show that any attempt was made to ex-
plain to employees Thurman's role as consultant. Fur-
ther, the record discloses that not only were employees
confused as to the extent of Thurman's interest in the af-
fairs of the Company, but so were supervisors.
Of overriding significance, however, is that Thurman
continued to serve as president and in that capacity he
was authorized to act on behalf of the Company, particu-
larly with regard to labor relations.' 4 This Thurman ac-
knowledged on April 29 when he executed certain mate-
rial as president which had been sent to Respondent Gar-
rett in connection with charges filed by Sharren Davis in
Case 25-CA-12096 (See Commerce questionnaire, G.C.
Exh. 7). It is also noted that Thurman, a few days earli-
"4 Respondent's reliance on Joe & Dodie's Tavern, 254 NLRB 401
(1981), is misplaced. I find that case factually distinguishable noting inter
alia that there was no showing that Rors, the former owner, continued to
serve as an officer after the sale of the business. Moreover. Ross was no
longer active in the "operations of the business" at the time of the union
organizational campaign.
1153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er, had participated in the first supervisory meeting
which had been called by Wetzel to discuss the Molders'
Union's challenge. In these circumstances and based on
the entire record, I find that the evidence clearly estab-
lishes that Ferdinand Thurman at all times material
herein was an agent of Respondent Garrett within the
meaning of the Act. 2a
b. Beverly Thurman
Beverly Thurman (Beverly) is the wife of Ferdinand
Thurman. She worked every day in the specialty depart-
ment part time from 8 a.m. to 12 noon. In her capacity
as disputed supervisor or group leader she assigned the
work to Kathy Fugate and Sharren Davis. No one else
was employed in the specialty department during the
time encompassed by allegations involving Beverly.
While it is unclear to what extent Beverly exercised
independent judgment when assigning work to Fugate
and Davis, the record discloses that she otherwise re-
sponsibly directed employees. For example, the record
reveals that on February 26 Beverly ordered Davis to
leave the department because it was not yet starting time
and issued Davis a written reprimand (G.C. Exh. 3). I
reject Respondent's assertion that Beverly had no au-
thority to issue warning notices or reprimands without
prior approval from her supervisor as not supported by
credible evidence. It is noted, inter alia, that Beverly did
not testify and there was no showing that such constraint
was ever communicated to employees.
The record also discloses that Beverly authorized time
off for Fugate and Davis. Thus Fugate testified that if
she had to leave work early, or was unable to come in,
she would call Beverly for permission to be excused
from work. Davis testified similarly.
On the basis of the entire record and noting that Bev-
erly exercised independent judgment, inter alia, with
regard to disciplinary warnings and time off, I find that
Beverly Thurman, at all times material herein, was a su-
pervisor and/or agent within the meaning of the Act.
c. Marilyn Omspacher
Marilyn Omspacher and Alice Wilmot2 6 were various-
ly referred to as "floor ladies," "lead ladies," "group
leaders and supervisors" and both worked in the finish-
ing department which in June 1980 consisted of approxi-
mately 15 employees. The department was essentially di-
vided into two segments: one dealing with hand trim-
ming operations led by Omspacher, the other involving
buffing operations and led by Wilmot.
Omspacher testified that in making assignments she
considered, inter alia, the various skills of the employees
and their abilities to perform as required. The credited
testimony of other employees discloses, inter alia, that
Omspacher was introduced to them as supervisor (as was
Wilmot), authorized time off, and issued written discipli-
nary warnings (G.C. Exhs. 21, 38, 39, and 40). Further,
2' With regard to Thurman's alleged supervisory status, the record is
unclear and incomplete. However, having found that the statements, acts,
and conduct of Thurman are those of Respondent Garrett's on an agency
basis, I find that it is unnecessary to meet the supervisory allegation.
a6 None of the allegations identify or pertain to Wilmot.
the record discloses that Omspacher and Wilmot helped
Richard Schorey evaluate employees for purposes of the
June layoff.
While Omspacher denied that she was ever referred to
as "supervisor" and insisted that, with minor exceptions,
she could not grant time off without prior approval from
her superiors, and that she only issued disciplinary warn-
ings when so instructed by her superiors, I found her tes-
timony inconsistent, evasive, unresponsive, implausible,
and unreliable. For example, at one point Omspacher as-
serted that employees had never phoned her or Wilmot
with regard to absences nor did they expect such calls.
She later admitted, however, that Schorey had posted a
notice on the bulletin board instructing the employees in
the finishing department to call either her (Omspacher)
or Wilmot on the morning that they were going to be
late or absent.
While the record discloses factors for, and others mili-
tating against, a finding of supervisory status,27 I find, on
balance, that the credited testimony establishes that Om-
spacher exercised independent judgment in carrying out
her overall responsibilities in dealing with employees and
as such was a supervisor within the meaning of the Act.
Having credited testimony that Omspacher had been
introduced to employees as their supervisor and noting,
inter alia, that she assigned work, granted time off, and
issued written disciplinary warnings, I find that she was
strategically placed by Respondent Garrett so that em-
ployees had reasonable cause to believe that the state-
ments, acts, and conduct of Omspacher emanated from
management. 2 8 As testified by Respondent Garrett's wit-
ness Virginia Desmoreaux, the reason she questioned
Omspacher about reprisals for supporting the Union was
because she was the group leader and "if anybody knew,
she would."
In sum, I find that Marilyn Omspacher is also an agent
of Respondent Garrett as alleged.
2. The settlement agreement and related allegations
The settlement agreement between Respondent Gar-
rett and Sharren Davis was approved by the Board's Re-
gional Director in Indianapolis on December 17, 1979
(G.C. Exhs. 4(a)-(d)). In accordance with the terms of
the settlement agreement, Respondent Garrett restored
Davis' hours to what they were prior to the charges in
27 For example, the record is devoid of any evidence tending to show
that Omspacher ever discharged or recommended the discharge of an
employee. On the other hand, it appears that employees believed that
Omspacher possessed such authority. Thus Omspacher testified that
Kathy Fugate told her, "I hear that you've said that you're going to fire
your girls if they started a union." Significantly Omspacher merely
denied the truth of the statement rather than disabuse Fugate regarding
her authority to discharge anyone.
28 According to Respondent in its brief, on each instance that Om-
spacher issued a warning slip, it was only after she had been specifically
directed to do so by management. Further, Respondent contends that
Omspacher merely acted as a conduit for the management decisions con-
cerning absences. While I have found, contrary to Respondent, that Om-
spacher has exercised independent judgment in these areas, it should also
be noted that her accessibility to management, even as stated by Re-
spondent, lends credibility to her statements as emanating from manage-
ment. See Our-Way, Inc., 238 NLRB 209, 213 (1978).
11S4
GARRETT FLEXIBLE PRODUCTS
Case 25-CA-11450, to wit, 7:30 a.m. to 3:30 p.m. and
posted the appropriate 60-day notice.
On April 17, Davis filed charges in Case 25-CA-12096
(G.C. Exh. 6) alleging noncompliance with the terms of
the settlement agreement but withdrew said charges I
month later. On December 11, the Regional Director
withdrew his approval of the settlement agreement and
issued a complaint in Case 25-CA-11450 (G.C. Exhs.
I(v) and (t)).29
According to the General Counsel, Respondent Gar-
rett continued to discriminate against Davis in violation
of Section 8(a)(3) and (4), and only superficially com-
plied with the terms of the settlement agreement. In this
regard the General Counsel noted that on December 22,
1979, a day after the 60-day notice was first posted, Re-
spondent Garrett posted another notice informing em-
ployees in the specialty department that they were re-
stricted to the clock area until 5 minutes before starting
time. Further, no one was permitted to go into the spe-
cialty department alone before 8 a.m. The General Coun-
sel contends that such changes, as well as a warning slip
given to Davis on February 26 for violating the new rule
about entering her department alone, establish that the
settlement agreement was breached. Moreover, as Davis'
hours in March were again changed to commence and
end 8 a.m. to 4 p.m. respectively, the General Counsel
contends that Respondent Garrett's postsettlement con-
duct revealed that it never had any intention of comply-
ing with the terms of the agreement.
According to Respondent Garrett, the aforenoted
changes were instituted because of its concern for the
protection and safety of the few employees then em-
ployed in the specialty department, and because it
wanted to further standardize the starting time as 98 per-
cent of the employees began work at 8 a.m.
The record discloses that by January 1980 the night
shift in the specialty department had been eliminated and
only two full-time employees (Davis and Fugate) worked
on the day shift. As all but a few employees commenced
working at 8 a.m., and those few were not visible from
the specialty department area, I am not persuaded in the
circumstances of this case that the changes were so un-
reasonable or that the reasons advanced so implausible to
warrant an inference of unlawful motivation. In this con-
nection it is noted that when Davis' hours were first
changed in March 1979, she had not yet been engaged in
any protected concerted activity. Further, the record is
devoid of any probative or credible evidence tending to
show that Davis lost wages or otherwise suffered finan-
cially as a result of any of the disputed changes. More-
over, it is noted that all changes, including the new 8
a.m. starting time, applied equally to Fugate, the only
other regular full-time employee in the specialty depart-
ment. 0
a9 I find Respondent Garrett's reliance on Sec. 10(b) of the Act to pre-
clude any attack on compliance with the terms of the settlement agree-
ment misplaced. Sec. 10(b) bars the issuance of a complaint on a charge
filed more than 6 months after the event. The underlying charges in Case
22-CA-I 1450 were timely filed.
so Respondent Garrett's attorney Derald Kruse testified credibly and
without contravention that before the starting time was again changed in
March to begin at 8 a.m., he contacted the compliance officer at the
I am also unpersuaded the Respondent Garrett was un-
lawfully motivated in issuing a warning slip to Davis on
February 26. Davis was aware of the new rule that re-
stricted anyone from entering the specialty department
alone and, although Fugate had not yet arrived on the
day in question, she and Davis elected to ignore the
rule.3 1 In such circumstances I cannot find that a warn-
ing slip was unwarranted or that it was issued because
Davis had previously engaged in protected concerted ac-
tivity.
In sum, I find that the record is insufficient to establish
that Respondent Garrett breached the terms of the settle-
ment agreement. Accordingly, the settlement agreement
is not set aside and the presettlement conduct allegations
shall be dismissed.3 2 As I have previously determined
that the evidence was insufficient to establish unlawful
motivation vis-a-vis Respondent Garrett's postsettlement
conduct, I shall also dismiss these allegations.3 3
3. The 8(a)(1) allegations
The record disclosed that the Molders' Union began
organizing Respondent Garrett's employees in April
1980. The first union meeting was held on April 19.
Davis testified that a day earlier Supervisor Wood of the
specialty department told her that he was "very upset
that he was not invited to our Union meeting and he
wanted to know why I didn't invite him." According to
the testimony of alleged discriminatee James Gamble,
one night in April, Wood (Gamble's brother-in-law) vis-
ited him at home and, while they were watching televi-
sion, Wood asked Gamble if he knew about the union
meeting and was he going to attend. Former employee
Tyron Combs testified that sometime between April 25
and 27 Wood asked him whether he had signed a union
card.
Wood did not specifically deny the questions ascribed
to him by Davis and Combs although at one point he
denied generally any conversation with employees deal-
ing with the Union. With regard to Gamble, Wood testi-
fied that the only time the subject of union cards was
mentioned occurred sometime in the spring, when he
told Erhardt not to bother Gamble while the latter was
working. Wood testified that on that occasion he ob-
served Ralph Erhardt approach Gamble in the mailroom
Board's Regional Office in Indianapolis who told him that the hours
could be changed for business reasons.
s3 I do not credit Davis' unsubstantiated account whereby she asser-
tedly disregarded the rule in reliance on information she received from
an OSHA employee in Indianapolis.
as See Hollywood Roosevelt Hotel Co., 235 NLRB 1397 (1978).
sS In finding that these allegations lacked merit, I considered, inter
alia, Respondent Oarrett's presettlement conduct for purposes of animus.
See Steves Sash & Door Co., 164 NLRB 468 (1967). While it is alleged
that on or about October 10, 1979, Thurman promulgated a rule to the
effect that employees were not to talk to Davis, I find this allegation un-
supported by credible evidence. Rather, the record disclosed, inter alia,
that Respondent Garrett had a longstanding rule (as conceded by Davis)
barring employees from one department talking to employees in another
department while those employees were working. Further, the credited
testimony discloses that whatever restrictions were placed on Davis were
also placed on Fugate, the only other regular full-time employee in the
specialty department
1155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while the latter was working and asked for union cards
to hand out to employees in the machine shop.
I credit the General Counsel's witnesses over Wood.
Wood, by his own account, had learned of the then up-
coming union meeting from Mrs. Thurman who also
asked him whether he knew who was going to attend.
As such, Wood's testimony tends to buttress the testimo-
ny of Davis and Gamble insofar as the timing of the al-
leged interrogation. Further, in assessing Wood's overall
credibility, I find it highly unlikely, as testified by Wood,
that he never discussed the Union with other supervisors,
particularly as he noted elsewhere that "people were
always talking about the union."
According to Respondent Garrett, even if Wood asked
the disputed questions as testified by Davis, Combs, and
Gamble, these allegations should be dismissed because
they comprise "at most a mere technical or de minimis
violations." I cannot concur. In the circumstances of this
case, noting an absence of evidence tending to show that
the interrogation was advanced for legitimate purpose,
and that adequate assurances against reprisals had not
been provided, I find that such interrogation is inherent-
ly coercive and violative of Section 8(a)(l) of the Act.
See Jim Bradley's Country House, 223 NLRB 1163, 1166
(1976).
In addition to the foregoing findings, the credited testi-
mony discloses a number of other instances of unlawful
interrogation as well as other acts and conduct violative
of Section 8(a)(1).
Thus, Jim Anderson and Esom Sumner testified that,
over several conversations on April 21 and 22, Supervi-
sor Otis Hunter questioned them about the Union and
made threats to dissuade them from supporting the
Union. As testified by Anderson, Hunter asked him what
he knew about the Union, if he knew who was passing
out union cards, and whether he was planning on joining
the Union. Further, Hunter warned Anderson that Su-
pervisor Thomas would make it rough on the employees
and that "Ferdinand Thurman would close the doors
down ... before we did get a union in."
Esom Sumner testified credibly that Hunter told him
that he knew that he, Sumner, was passing out union
cards because "a little birdie had told him,"3 4 cautioning
Sumner that he would be hurting himself. Hunter also
warned Sumner that Thurman would close the plant
should the employees become unionized. 35 This same
'4 I find Hunter's reference to "a little birdie" is tantamount to stating
that he had a "direct pipeline" to Sumner's union activities, thereby con-
veying impression of surveillance as alleged. See Hudson Wire Co., 230
NLRB 1263, 1265 (1978).
s6 While Hunter conceded the subject of the Union came up in a meet-
ing between Anderson, Sumner, and himself, he asserted that they initiat-
ed the discussion and that they inquired of him what Thurman would do
if the employess became unionized. According to Hunter, "being a
friendly foreman," he talks to everybody but, when the subject of the
union came up, he told them that "I d[on't] want to talk about anything
that ha[sl to do with the Union." As this conversation according to
Hunter occurred after Wetzel's "do's" and "don'ts" meeting, I find it un-
likely that Hunter refused to offer at least an opinion. In any event, on
the basis of demeanor and as Hunter was otherwise evasive, I did not
find him to be a credible witness.
threat about Thurman shutting down the plant was con-
veyed to Sumner by Superintendent Thomas on April
22. On that occasion Thomas directed Sumner to follow
him into the laboratory, closed both doors, and proceed-
ed to question him privately about passing out union
cards. According to Sumner, Thomas told him that he
had treated him fairly, reminding Sumner of the "four
hours overtime a week," without a union.
According to Thomas, he questioned Sumner because
Charles LeGras, another employee, had complained that
Sumner had given him a union card while LeGras was
supposed to be working and told him to sign or he
would lose his job. Thomas testified that he told Sumner
not to pass out cards while he was supposed to be work-
ing and took issue with him with regard to whether em-
ployees faced discharge for failing to sign union cards.
Thomas also maintained that this was a chance meeting
in the lunchroom and not in the lab as testified by
Sumner.
I found the overall testimony of both Thomas and
Sumner to be vague, unsure, implausible, and that both
exhibited poor recall. With regard to Thomas, this was
particularly evident in describing the circumstances of
his meeting with Sumner. Thus Thomas testified that he
was not "really concerned" that Sumner was passing out
union cards and "just bumped into him," on the occasion
in question. I find Thomas' account of a chance meeting
highly unlikely, particularly as he admitted taking the
trouble to remind Sumner that he had always treated
him fairly. On the other hand, I was not overly im-
pressed with Sumner as a witness, it appearing that he
has a tendency to embellish or exaggerate. For example,
the record does not substantiate Sumner with regard to
overtime pay. As Respondent Garrett points out, if
Sumner had been paid 4 hours of overtime a week, one
would expect it to be reflected on his timecards (R. Exh.
50) or otherwise documented. On balance, however, I
credit Sumner over Thomas but only insofar as Thomas'
threat or warning that Thurman would close down the
plant before the Union got in, thereby violating Section
8(a)(1).36
Ralph Erhardt, Craig Benson, and Sharren Davis testi-
fied credibly that about April 24 Ferdinand Thurman in-
terrogated them about their activities, relative to union
authorization cards. With regard to Erhardt, Thurman
signaled him to come over to the timeclock area where
36 I find in favor of Sumner with regard to this allegation noting, inter
alia, that other supervisors had made similar threats or warnings and be-
cause Thurman harbored profound opposition to the Union, independent-
ly engaged in unfair labor practices as described below. I am unpersuad-
ed however that Thomas threatened to hit Anderson with a steel ball in
reprisal for the latter's union activities, as contended. Rather, the record
discloses and I find that Thomas was upset with Anderson because the
latter did not report for work the previous day. On the other hand it is
undisputed that Anderson complained to Oeneral Manager Wetzel that
Thomas threatened to hit him with the steel ball. Anderson testified cre-
dibly that, during his meeting with Wetzel, the latter asked him what he
knew of union activities. I found Wetzel less than forthright as a witness
and reject his denial of an alleged interrogation. For example, Wetzel as-
serted that he first learned about any union activity when he received the
Union's letter on April 23 or 24. As a number of supervisors knew of the
union meeting on April 19, 1 find it highly unlikely that this information
was not passed on to Wetzel earlier.
1156
GARRETT FLEXIBLE PRODUCTS
Thurman drew Erhardt's attention to a notice from Gen-
eral Manager Wetzel. The notice pointed out, inter alia,
that if employees were coerced into signing union cards
they could request that those cards be returned or they
could go to the National Labor Relations Board (G.C.
Exh. 18). Thurman then asked Erhardt whether he
signed a card; whether he passed out union cards; and
whether he had seen anyone distribute union cards.
Later that day, Thurman questioned Benson in much the
same way as he had Erhardt. Further, in an effort to dis-
suade Benson from supporting the Union, Thurman
boasted that only he and not the Union could "guaran-
tee" him a 40-hour workweek. The same day the notice
was posted, Thurman also confronted Davis about union
cards. On that occasion, Thurman pulled out a union
card from his shirt pocket and asked Davis if she wanted
him to sign it. Thurman also asked Davis if she was pass-
ing out union cards. I find that Thurman, by such state-
ments, acts, and conduct, unlawfully interrogated em-
ployees in violation of Section 8(a)(l) as alleged.3 7 See
Jim Country House, supra.
The General Counsel adduced still further credited
testimony that Respondent Garrett, by Marilyn Om-
spacher, unlawfully interrogated employees, warning
them that they faced discharge and that Thurman would
close the "factory" before allowing the employees to
become unionized. I do not, however, credit Dexter
Howard's version ascribing to Supervisor Wood a still
further threat of a plant shutdown. It is noted that this
threat was missing from Howard's affidavit (R. Exh. 10)
and he was otherwise an unimpressive witness.
Peggy Helblig testified credibly that, about April 25,
Omspacher approached her at her work station (finishing
table) and asked her whether she had attended the union
meeting or signed a union card and whether she knew of
anyone else who signed a union card. Omspacher ex-
plained that Thurman "hate[d] unions" and that an em-
ployee faced discharge if Thurman found out that the
employee signed a union card. Helblig testified credibly
that she overheard Omspacher make similar statements
to other employees a few days later at the same work
station. s
In sum, I find that the statements, acts, and conduct of
Respondent Garrett by its supervisors and/or agents vio-
lated Section 8(aX1) of the Act by coercively interrogat-
ing employees about their union activities and the union
activities of other employees; conveying to employees
37 Thurman admitted the aforenoted conversations with Erhardt and
Davis, although he denied asking them whether they had distributed
union cards. He does not recall any such conversation with Benson. On
the basis of Thurman's demeanor and his testimony in its entirety, I find
him to be an unreliable witness. He was unresponsive, evasive, vague,
and exhibited poor recall. Thurman's dismissal of his exchange with
Davis as a "joking conversation" does not inspire confidence that his ex-
planations are reliable. Elsewhere, Thurman denied that he was still a di-
rector of Respondent Garrett only to acknowledge a moment later that
he continues to be on the board of directors. In short, I reject Thurman's
testimony where not otherwise credited.
"' In rejecting Omspacher's denials, it is noted for reasons stated previ-
ously that I have found Omspacher to be an unreliable witness. While
Virginia Desmoreaux and Susan Wells, both of whom work regularly at
the same finishing table, denied that they heard Omspacher's disputed re-
marks, other employees, Bernadette Meyers and Jane Shibler, corroborat-
ed the essence of Helblig's testimony.
that their union activities are under surveillance;39 and
threatening employees with reprisals including discharge
and plant shutdown to dissuade them from supporting
the Union.
4. The 8(aX3 ) allegations
a. Layoffs, selection process
The record disclosed that around mid-May 1980, less
than 2 months after Wetzel had acquired ownership and
control of Respondent Garrett, customer orders dropped
from 25 to 30 percent which was not part of the normal
business cycle nor anticipated. As a result of this business
reversal, approximately 30 percent of the rank-and-file
employees were laid off during the months of June and
July. As described more fully previously, Wetzel consid-
ered only employees with less than 2 years of service
and, for them, he devised a 50-point plan, covering five
categories to evaluate their overall production, laying off
those employees who scored the least number of points.
Counsel for the General Counsel does not dispute that
Respondent Garrett incurred significant business losses
or that layoffs were necessary. Rather, he contends that
Respondent Garrett considered the union activities of the
alleged discriminatees as the basis for selecting them for
layoffs rather than other employees. The General Coun-
sel relies principally on the large number of union sup-
porters who were laid off and some conflicting testimony
from Wetzel, Schorey (currently manufacturing manag-
er), and Plant Superintendents Thomas and Barnett with
regard to their respective roles and participation in the
selection process.
The record discloses that in June, shortly before the
layoffs, Respondent Garrett employed approximately 88
production and maintenance employees. (R. Exh. 54.)
According to Wetzel, for reasons of equity, stability, and
production potential, he elected to protect his senior em-
ployees. Thus only employees with less than 2 years of
service were candidates for layoff. There were 38 em-
ployees in this group, 27 of whom were laid off in June
and July under Wetzel's evaluation system. Employees
were rated by department in terms of overall production,
those scoring the fewest points were laid off first. (R.
Exh. 55.)
While the record discloses that 18 of the 27 employees
who were laid off had exhibited some support for the
Union, it also reveals that the vast majority of union sup-
porters were junior employees.40 Thus had Wetzel main-
39 I find the record insufficient to establish the allegation of actual sur-
veillance. The General Counsel adduced testimony placing Superintend-
ent Jack Barnett in his automobile driving slowly around the Garrett
State Bank on Saturday morning, May 3, shortly before a union meeting.
Barnett testified credibly that he was at the newstand or the bait shop in
the vicinity of the bank every day. In this connection it is noted that the
plant, which was in operation on that day, is situated not too distant from
the bank. In these circumstances, and noting that Barnett was not other-
wise charged with engaging in unlawful conduct, I am unpersuaded that
he was engaging in surveillance as alleged. Accordingly, I shall recom-
mend that this allegation be dismissed. See Continental Kitchen Corp., 246
NLRB 611, 612 (1979).
40 Of the II junior employees who were selectively retained, at least 5
of them (William Benson, Randy Brown, Virginia Desmoreaux, Gill
Continued
1157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained strict seniority, a majority of the employees laid
off would still have been union supporters.
A department-by-department analysis also fails to sup-
port the General Counsel's contention that employees
were selected for layoff on the basis of their union activi-
ties. For example, it is noted that on July 11 all three in-
dividuals in the specialty department were laid off al-
though two of them (Fugate and Thurman) openly op-
posed the Union. 4 1 On the other hand, all three press-
men in the Quincy Street Plant had signed union cards
but only one was retained. As noted by counsel for Re-
spondent Garrett, "It is difficult to understand how the
selection of one union adherent over another [union ad-
herent] ... results in discrimination against union adher-
ents." With regard to the millroom helpers' position, that
classification was eliminated resulting in the layoffs of
Dexter Howard and Tyron Combs, both union support-
ers. On the other hand, Respondent Garrett at the same
time eliminated one of the two general laborers' positions
resulting in the layoff of Charles LeGras, who opposed
the Union and complained to management that another
employee was pressuring him to sign a union card.
The record discloses that between July 21 and Octo-
ber 6 approximately eight employees were recalled under
the same employee evaluation system which controlled
the layoffs. (G.C. Exh. 43; R. Exh. 55.) This group in-
cluded antiunion employees Kathy Fugate and Beverly
Thurman and also prounion employees Wilburn Combs
and Janet Halsey.
While not free of suspicions, I find on the total state of
this record, noting particularly that employees were laid
off for legitimate business reasons, and that the employ-
ees who were retained were generally the most senior
(employees with 2 or more years of service), that the
General Counsel has failed to establish by a preponder-
ance of the credible evidence that Respondent Garrett
laid off employees on June 20 and July 11 on the basis of
their union activities. Accordingly, I shall recommend
that this allegation be dismissed.
(b) Terminations
The employees who were laid off and not recalled
after 120 days received termination letters in late Octo-
ber and November 1980 from Wetzel, which notified
them in pertinent part as follows:
The Company policy . . . is to consider employ-
ees not recalled, within (120) one hundred and
twenty days from lay-off date, as terminated due to
Gibson, and Eli Sumner), had either taken or signed a union card. An-
other employee retained was Eva Schorey, wife of then Production Co-
ordinator Richard Schorey. The latter Schorey was deeply involved in
mmisting Wetzel evaluate employees for layoff. Bea McPhereson, who es-
caped the layoff of June 20, is Eva Schorey's sister-in-law. Testimony
was adduced tending to show that Supervisor Omspacher and Desmor-
eaux are good friends. Omspacher was also involved in evaluating em-
ployees under Wetzel's selection system. In these circumstances, it is just
as likely that selection turned on friendship or nepotism as were the rea-
sons advanced by the General Counsel.
41 According to the General Counsel, of the 14 employees laid off on
July II, seven of them supported the union. This is hardly a basis for
supporting an inference of unlawful motivation.
the lack of work and, therefore, will not be recalled
from lay-off.
Those employees wishing to return to work at
Garrett Flexible Products may file a new applica-
tion for employment, which will be considered with
other applicants when an opening occurs. [G.C.
Exh. 23.]
While the termination letter refers to "company
policy," the record discloses that this was a new policy
which had not been commuicated to employees prior
thereto. Wetzel's unsubstantiated explanation that he sent
these termination letters because "[t]hey had followed
that at another company. I used the same procedure, the
same type," does not stand scrutiny and is rejected. First,
it is noted that Wetzel was vague and unsure regarding
his previous experience with using a 120-day deadline.
When asked to name the company where this procedure
was used, Wetzel responded, "I believe it was Fixtures
[manufacturing corporation] in Kansas City." According
to Wetzel's uncorroborated testimony that while employ-
ees were never laid off at Fixtures, the company's 120-
day rule was in printed form and understood. In reject-
ing this testimony it is noted, inter alia, that Wetzel ac-
knowledged that he did not have any document reflect-
ing the rule or policy nor had Respondent Garrett re-
quested leave for time to secure a copy of the disputed
rule which Wetzel had asserted was in writing.4s
Virtually all of the laid-off employees who received
the termination letters had exhibited support for the
Union' 3 and their union activities were well known to
management. 4 4 Noting, inter alia, that Respondent Gar-
rett (for reasons discussed previously) has threatened em-
ployees with discharge and plant shutdown, coercively
interrogated employees, and has otherwise interfered
with the rights of employees to engage in union activi-
ties, and as I have rejected its assigned reason for termi-
nating the laid-off employees, I find that its action was
predicated on antiunion considerations. Accordingly, I
find that Respondent Garrett terminated the laid- off em-
ployees in violation of Section 8(aX3) and (1) as al-
leged. 45
42 It is noted that Stan Sneary, a press operator and new employee,
was hired on October 13, well within the 120-day period, while other
press operators were still on layoff. (G.C. Exh. 43.) 1 am unpersuaded
that this was merely a mistake, as explained by Wetzel, particularly as
Sneary later quit and was replaced by another new employee.
4s The other employees who were laid off in June or July had either
been recalled or their jobs were eliminated.
44 Roughly half of the work force are employees related to each other
and to members of management. (G.C. Exh. 44.) Thus at times the trial
resembled the Civil War in an economic setting: spouse testifying against
spouse, brother against brother. The employees did little to conceal their
widespread union activities both inside and outside of the plant. As Su-
pervisor Wood observed, "people were always talking about the Union."
In these circumstances it is inescapable that Respondent Garrett had
knowledge of the union supporters.
45 Respondent Garrett's assertion that the allegation pertaining to ter-
minations is time-barred by Sec. 10(b) of the Act is without merit and is
rejected. The record reveals that the original and amended charges in
Case 25-CA-12822 were filed on October 27 and December 8, 1980, re-
spectively, and alleged in essence, inter alia, that since about June 20,
1980, Respondent Garrett selected 18 named employees for layoffs be-
cause they had engaged in union activities. (G.C. Exhs. l(k) and (m).) On
Continued
1158
GARRETT FLEXIBLE PRODUCTS
(c) Jimmy Gamble
The first group of employees to be laid off were noti-
fied on June 20. As Jimmy Gamble was one of the more
senior employees, he was not included in the first group
of layoffs nor was he a likely candidate in the near
future. Gamble, however, failed to report for work on
June 20 and on Monday, June 23, was discharged for
missing too much work. The General Counsel contends
that Respondent Garrett seized on Gamble's absence as a
pretext to rid itself of one of the more active union sup-
porters. On the state of this record, I cannot concur.
The record disclosed that Gamble had a checkered
employment history with Respondent Garrett. He first
began working for the Company in 1972. At some un-
specified time during Gamble's early years with the
Company, he was arrested (for reasons not relevant
herein) and his employment terminated. Gamble's depar-
ture was brief; the Company reemployed him 3 months
later. In January 1978, Gamble quit his job over a dis-
pute involving the size of a wage increase. He resumed
his career with the Company in April 1978 and worked
without interruption until his discharge on June 23.
It is undisputed that Gamble was a good worker.
However, Respondent Garrett contends, the record sup-
ports, and I find, that Gamble long had absentee prob-
lems. Thus, former Plant Superintendent James Ray testi-
fied that the Company rehired Gamble in 1979 under
certain conditions including that he "work his full forty
hours a week and have low absentee record." (See R.
Exh. 14.) Gamble acknowledged that then owner Ferdi-
nand Thurman cautioned him at the time he was rehired
that he was expected at work everyday.
The record disclosed that Gamble's absentee record
remained poor as evidenced by three written warnings.
(R. Exhs. 12A-12C.) Gamble received a final warning on
April 17, 1980, which reads as follows:
Missing Too much work. No Excuse. Has been
warned before.
FINAL WARNING.
Gamble received the aforenoted final warning 2 days
before the Union held its first meeting. The only record
testimony connecting Gamble to the Union prior to the
meeting came from Gamble who testified that Wood (his
immediate supervisor and brother-in-law) asked him
during one unspecified evening, while they were watch-
ing television, whether he was going to the union meet-
ing and he answered affirmatively but nothing else was
said. As such, the record falls far short of establishing
any nexus between Gamble's union activities and the
final warning he received on April 17.
While the record reveals that Gamble had absented
himself on a few occasions after he was given a final
June 2, 1981, at the opening of the instant trial, counsel for the General
Counsel amended Case 23-CA-12822 to allege that the laid-off employ-
ees were later terminated in violation of Sec. 8(aX3). As the original and
amended charges were filed well within the 10(b) period, and as the al-
leged discriminatory terminations flowed from the layoffs, and were re-
lated thereto, I find that the later amendment was also encompassed
therein and timely made. I further find that the alleged discriminatory
terminations were fully litigated.
warning without suffering any apparent discipline, on
one occasion he went to a funeral and on another his
wife was ill.4 6 (R. Exh. 52, absentee reports 5-2-80, 6-
17-80). In any event, the Company was not compelled to
discharge Gamble at the first opportunity. See Gorman
Machine Corp., 257 NLRB 51 (1981).
Of greater significance is that Gamble admittedly was
warned about his unacceptable absentee record before
the advent of the Union and his attendance did not im-
prove. Further, the record disclosed that Respondent
Garrett terminated four employees in 1979 and two
others in 1980 for excessive absenteeism. (R. Exhs. 66-
71). In any event, the General Counsel failed to demon-
strate that Gamble was treated disparately. The General
Counsel's contention that the burden is on the Respond-
ent to refute the proposition that other employees were
absent from work as often as Gamble without suffering
discharge is misplaced. Cf. Wright Line, 251 NLRB 1083,
1090 (1980).
As noted above, Gamble did not report for work on
June 20. The Company has a longstanding rule that an
employee who will not be at work must call before the
start of the shift. On June 20, Gamble's shift commenced
at 7 a.m. The Company was not notified until Gamble's
wife called at 9:25 a.m. to advise that her husband had a
"splitting headache." (R. Exh. 52, absentee report 6-20-
80). Wood's superior, Superintendent Barnett, recom-
mended to Wetzel that Gamble be discharged and
Wetzel agreed. Barnett had signed previous warnings
which were issued to Gamble including the one marked
"FINAL WARNING."
Gamble's union activities appear to have been confined
to the union meeting of April 19 and the passing out of
union cards the following week. In any event, the record
does not disclose any union activity on his part after the
week of April 21, approximately 2 months before his dis-
charge.
On the basis of all of the foregoing and the entire
record, noting particularly that Gamble was warned that
his attendance was unacceptable and that he thereafter
received a final warning and that the record does not es-
tablish that said action was causally related to union ac-
tivity, I find that the General Counsel has not established
by a preponderance of the credible evidence that Re-
spondent Garrett violated Section 8(aX3) when it dis-
charged Gamble for not working on June 20. According-
ly, I shall recommend that this allegation be dismissed.
5. The single employer relationship and related
allegations
The General Counsel contends that since about Sep-
tember 8, 1980, Respondent Garrett and PPI has become
a single integrated business and constituted a single em-
ployer within the meaning of the Act. As such (the Gen-
'4 Respondent also points out "[hlaving his brother-in-law [Wood] as
his immediate supervisor, gave Mr. Gamble some latitude." In this
regard, the record discloses that Gamble was rehired largely in 1978 at
the urging of Wood. Further, Wood on occasion made special arrange-
ments to ensure Gamble's presence at work, sometimes leaving work
himself or sending another driver to pick up and escort Gamble to the
plant.
1159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral Counsel contends) PPI was obligated to recall Re-
spondent Garrett's laid-off employees before hiring new
employees and, by failing and refusing to do so, PPI
thereby violated Section 8(a)(3) of the Act.47
As noted previously, in late March 1980, Jackson
Wetzel had become the principal owner and general
manager of Respondent Garrett and, in September, also
its president. In March 1980 Wetzel also shared owner-
ship of another company (PPI) with Thomas Herrick on
a "fifty-fifty" basis. In August 1980 Wetzel purchased
Herrick's interest and emerged as the principal owner
and president of PPI.
PPI is an Ohio corporation, organized in 1976 (R.
Exh. 25), and is and has been at all times material herein
engaged in the manufacture, sale, and distribution of
plastic products. Prior to September 1980, PPI's oper-
ations were confined to a single facility located in New-
berry, Ohio. In August 1980, about the same time Wetzel
became principal owner of PPI, he also leased (on behalf
of PPI) 10,000 square feet of Respondent Garrett's
Quincy Street plant. 48
In September the leased space was converted into a
second plant for PPI. In this connection, PPI commis-
sioned Respondent Garrett's maintenance employees to
install, inter alia, water lines, electrical units, and some of
the machinery and equipment which had been moved
from the Newberry facility. Additionally, on September
22, PPI permanently transferred Peter and Diane Manke-
vich (husband and wife) from its Newberry Plant and
hired Denise Brown (on layoff status from Respondent
Garrett) to help set up and commence operations at the
new location. The Newberry facility continued to oper-
ate much as it had before PPI had acquired its second
plant.49 On September 30 PPI hired Janie Richardson, a
new employee, to work at the Quincy Street facility.
The new plant became operational about October 1. Ini-
tially, Jackson Wetzel provided all the direct immediate
supervision at the new location. In November Wetzel's
son, James, became plant superintendent and assumed the
senior Wetzel's supervisory functions for PPI in Garrett.
Plant Manager Bill Spencer supervised PPI's employees
in Newberry.
PPI and Respondent Garrett coexisted at the Quincy
Street complex in separate areas. Respondent Garrett's
employees generally came to work through a separate
entrance and worked under the separate and immediate
supervision of Plant Superintendent Thomas and Super-
47 It is undisputed that the underlying charges, insofar as they are di-
rected against Respondent Garrett, were timely filed. For reasons dis-
cussed previously, I have determined that Respondent Garrett did not
violate the Act by selectively laying off and recalling employees. The un-
derlying charges against PPI were first filed on April 28, 1981, in Case
25-CA-12822-2 (G.C. Exh. I (gg)) more than 6 months after the alleged
unfair labor practices had taken place (September 8, 1980). The General
Counsel concedes and I find that the allegations against PPI may be en-
tertained only on the basis that PPI and Respondent Garrett are found
herein to constitute a single employer within the meaning of the Act.
(See G.C. Exh. I(ss), par. 2; Tr. 34.)
4s The lease was executed between Ferdinand Thurman and Wetzel on
behalf of the lessor and lessee, respectively. See fn. 20, supra.
49 The size of the employee complement at the Newberry plant varies
with the season from a high of 30 employees during the fall month to a
low of 8 to 10 employees around June. At the time of trial PPI employed
approximately eight employees in Newberry and seven in Garrett.
visor Hunter. Further, the employees of both companies
worked on different products with different machinery
and equipment. The record is devoid of evidence tending
to show any direct immediate cross-supervision for the
two companies.
In determining whether separate corporate entities
constitute a single employer under the Act, some of the
principal factors long considered relevant by the Board
are: (1) interrelation of operations, (2) contralized control
of labor relations, (3) common management, and (4)
common ownership. See Sakrete of Northern California,
137 NLRB 1220, 1222 (1962), affd. 332 F.2d 902 (9th
Cir. 1964), cert. denied 380 U.S. 255 (1965); H. S. Brooks
Electric, Inc., 233 NLRB 889, 893 (1977).
In the case at bar (as noted above) the two entities in-
volved coexist at the same location and share a number
of plant facilities. Thus, employees of both companies
share restroom facilities, emergency medical services, a
common breakroom, and punch the same timeclock. In
addition, PPI has from time to time utilized Respondent
Garrett's maintenance staff, particularly during the early
months of its operations, although generally it maintains
its own machinery and equipment. Further, testimony
was adduced showing that for about a 2-week period in
March 1981 three of PPI's employees performed work
for Respondent Garrett.60 The record also disclosed that
on a few occasions (usually for a day at a time) several
PPI employees have used Respondent Garrett's machine
shop while still working for PPI.51 Still further (as noted
above), and what appears to be the strongest common
denominator, is that Jackson Wetzel is the principal
owner and serves as president of both companies.
While the aforenoted factors clearly demonstrate that
the two concerns are closely allied, to conclude addition-
ally that combined they may be viewed as a single inte-
grated enterprise "would be an exaggeration." See Milo
Express, Inc., 212 NLRB 313, 314 (1974). Rather, the
record disclosed a plethora of other factors which tend
to persuade me that the single employer allegation is
without merit.
Thus the record discloses that PPI manufactures plas-
tics, whereas Respondent Garrett produces finished
rubber products. Both companies rely principally on dif-
ferent machinery and equipment (PPI's is mostly auto-
mated or semiautomated) and do not produce for each
other nor do they share common customers. The compa-
nies maintain separate books and records, including sepa-
rate payrolls and timecards, and they file separate tax
statements. With regard to employee interchange, the
record discloses that it occurs rarely and, on those infre-
quent occasions, only for short periods of time and with-
5o As testified by Carol Howard, she was told by Jimmy Wetzel in
March 1981 that because "work was low" and, rather than lay her off,
she would be transferred temporarily to the Cowen Street Plant. Howev-
er, it is also noted that when Howard complained to Personnel about not
receiving the higher hourly rate paid to Respondent Garrett's employees,
she was told that she was employed by a different company.
51 Connie Newland testified that she was required to record on a work
sheet the number of hours she spent in the machine shop. Jackson Wetzel
testified that Respondent Garrett charged PPI for the use of these ma-
chines.
1160
GARRETT FLEXIBLE PRODUCTS
out any change in their hourly rate.52 This is particular-
ly significant, noting that the record discloses that the
hourly wage rate for PPI is substantially less than the
rate paid by Respondent Garrett. The fringe benefits are
also different. PPI employees have a profit-sharing plan,
whereas Respondent Garrett's employees are covered by
an IRA pension plan. Further, the companies maintain
different provisions in their medical insurance coverages
and have different vacation schedules. Although both
companies provide the same number of paid holidays,
the record discloses that Respondent Garrett shuts down
annually for 2 weeks (in 1980 over July 4) while PPI re-
mained open.
While it is noted that Wetzel is the principal owner
and president for both concerns, it is also noted that the
other offices and stockholders are different. (R. Exhs. 26
and 27.) Of greater significance, as all of the foregoing
plainly reveals, is that these companies maintain separate
labor relations for their respective employees under sepa-
rate immediate supervision. As the Board observed in
Milo,5 3
We do not view the evidence of common owner-
ship and President Milos' participation in the labor
relations of Milo Express as warranting a finding
that Milo Express and Keystone constitute a single
enterprise. The day-to-day operations of Milo Ex-
press were in the hands of Manager Doman. De-
spite common ownership, the two businesses were
not interdependent.
In sum, I find on the total state of the record that the
General Counsel has failed to demonstrate by a prepon-
derance of the credible evidence that Respondent Gar-
rett and PPI at any time material herein constituted a
single employer within the meaning of the Act.
Accordingly, I shall recommend dismissal of all allega-
tions against PPI as they admittedly relate to events
which occurred more than 6 months prior to the filing of
charges against that company and are, therefore, time-
barred by Section 10(b) of the Act.5 4
CONCLUSIONS OF LAW
1. Garrett Flexible Products, Inc. (herein Respondent
Garrett), is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Plastic Processors, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
3. Respondent Garrett and PPI have not at any time
material herein constituted a single employer within the
meaning of the Act.
4. The International Molders' and Allied Workers'
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
56 The General Counsel's witness Carol Howard testified that she was
unaware of any instance where employees of one company were trans-
ferred or covered for employees of the other company.
53 Milo Express. Inc., 212 NLRB at 314.
"4 See fn. 47, supra.
5. Respondent Garrett has not at any time material
herein violated the terms of the settlement agreement in
Case 25-CA-11450.
6. By coercively interrogating employees about their
union activities and the union activities of other employ-
ees, by conveying the impression to employees that their
union activities are under surveillance, and by threaten-
ing employees with reprisals, including discharge and
plant shutdown, to dissuade them from engaging in union
activities, Respondent Garrett thereby has violated Sec-
tion 8(aXl) of the Act.
7. By terminating employees on layoff status because
of their union activities, Respondent Garrett has thereby
violated Section 8(a)(3) and (1) of the Act.
8. By rehiring laid-off employees as new employees
because of their union activities, Respondent Garrett has
violated Section 8(aX3 ) and (1) of the Act.
9. Except as noted hereinabove in paragraphs 7 and 8,
Respondent Garrett has not otherwise selectively laid off
employees or refused to recall them in violation of Sec-
tion 8(a)3) and (1) of the Act.
10. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
11. The General Counsel has not established by a pre-
ponderance of the credible evidence that Respondent
Garrett violated Section 8(a)(4) of the Act.
12. The General Counsel has not established by a pre-
ponderance of the credible evidence that Respondent
Garrett discharged Jimmy Gamble in violation of Sec-
tion 8(a)(3) of the Act.
13. Other than as set forth above, Respondent Garrett
has not violated the Act as alleged.
THE REMEDY
Having found that Respondent Garrett has engaged in
certain unfair labor practices, I shall recommend that it
be required to cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Having found that in October and November 1980 Re-
spondent Garrett unlawfully terminated certain employ-
ees, and having additionally found that it thereafter re-
hired some of them but only as new employees in viola-
tion of Section 8(aX3) of the Act, I shall recommend that
Respondent Garrett make all such discriminatees whole
by restoring them to where they would have been absent
the discrimination. s Thus, Respondent Garrett shall
ss The employees (discriminatees) unlawfully terminated are: Jim An-
derson, Craig Benson, Denise Brown, Sharren Davis, Ralph Erhardt,
Nyoka Gamble, Barry Harden, Peggy Helblig, Bernadette Meyer, Connie
Newland, Jane Warfield Shibler, Stanley Stone, Esom Sumner, and Bar-
bara Vogts. Of these, it is noted that Craig Benson, Ralph Erhardt,
Nyoka Gamble, and Esom Sumner were rehired by Respondent Garrett
as new employees and that Denise Brown and Connie Newland were
hired as new employees by PPI. (See R. Exh. 55.) The layoffs were con-
verted into violations of Sec. 8(aX3) in October and November 1980
when the termination letters were sent. Those employees laid off and re-
called by Respondent Garrett prior thereto are not found herein to be
discriminatees. Additionally, as I have found that Respondent Garrett has
lawfully eliminated the millroom helpers position in the Cowen Street
Plant, Tyron Combs and Dexter Howard, both millroom helpers, are not
discriminatees.
1161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer immediate and full reinstatement to all discrimina-
tees to their former jobs, or if those jobs no longer exist,
to substantially equivalent positions except where said
positions have been lawfully eliminated or have been left
unfilled for legitimate business reasons. Further, Re-
spondent Garrett shall offer immediate and full reinstate-
ment to all discriminatees who have been replaced, dis-
charging, if necessary, any replacements hired after the
date of their discharge. Still further, Respondent Garrett
shall make the aforenoted discriminatees, who have been
rehired as new employees, whole by restoring them to
their former positions without prejudice to their seniority
or any other rights and privileges previously enjoyed,
and by paying them for any loss of earnings which they
may have suffered by virtue of the discrimination against
them with interest in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), and Florida Steel
Corp., 231 NLRB 651 (1977). See generally Isis Plumbing
Co., 138 NLRB 716 (1962).
Given the large number of employees unlawfully ter-
minated and having found that Respondent Garrett, inter
alia, repeatedly threatened employees with discharge and
plant shutdown, I find that it has, by such conduct, dem-
onstrated a general disregard for the employees' funda-
mental statutory rights thereby justifying broad "in any
other manner" injunctive language in the Order. See
Hickmott Foods, 242 NLRB 1357 (1979); Continental
Kitchen Corp., 246 NLRB 611 (1979).
[Recommended Order omitted from publication.]
1162