JAMCO International, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1977

227 N.L.R.B. 1807 (N.L.R.B. 1977)

JAMCO INTERNATIONAL, INC.
JAMCO International , Inc. and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America (UAW). Case 16-
CA-6203
January 31, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On June 25, 1976, Administrative Law Judge James
M. Fitzpatrick issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, JAMCO Interna-
tional, Inc., Oklahoma City, Oklahoma, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.2
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F.2d 362 (C.A 3, 1951 ). We have carefully
examined the record and find no basis for reversing his findings
2 The Administrative Law Judge 's recommended notice is hereby
modified to conform to the recommended Order adopted herein
APPENDIX
1807
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act and has ordered us to post this notice
and to abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represen-
tatives of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all such things.
WE WILL NOT directly or indirectly interrogate
employees about their union activity or views.
WE WILL NOT inform employees that one of
them was fired because of union activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the above rights.
JAMCO INTERNATIONAL, INC.
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: In
this case the General Counsel claims that a supervisor
interrogated an employee as to his union activities, that the
employee was later discharged because of union activity,
and that the day after the discharge another supervisor told
other employees that the employee had been discharged
because of union activities. As set out more fully below, I
do not find an unlawful discharge. I do find the other
allegations are established.
The case arises from unfair labor practice charges filed on
September 2, 1975,1 by International Union, United
Automobile, Aerospace and Agricultural Implement Work-
ers of America (UAW) (herein UAW or the Union), against
JAMCO International , Inc. (herein the Respondent). A
complaint based on these charges issued October 30
alleging that Respondent had engaged in unfair labor
practices prohibited by Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended (herein called
I All dates herein are 1975 unless otherwise indicated
227 NLRB No. 264
1808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act). Respondent answered, admitting all allegations
except those respecting unlawful interrogation, unlawfully
informing the employees that another employee had been
discharged because of union activities, and discriminatory
discharge and failure to reinstate employee Robert Tucker.
The issues posed were heard before me at Oklahoma City,
Oklahoma, on March 9, 10, and 11, 1976.
Based on the entire record,2 including my observation of
the witnesses , the arguments of counsel made at the
hearing, and the briefs filed by the General Counsel and
Respondent, I make the following:
FINDINGS OF FACT
1. THE EMPLOYER INVOLVED
Respondent , an Oklahoma corporation, is engaged at
Oklahoma City, Oklahoma, in the manufacture of automo-
bile suspension parts. During the calendar year preceding
issuance of the complaint, a period representative of its
operations , Respondent manufactured, sold, and distribut-
ed directly to customers located outside Oklahoma prod-
ucts valued in excess of $50,000. I find Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
In recent years ownership of Respondent 's operations has
changed a number of times . The present corporate owner-
ship (JAMCO International, Inc.) began operating the
business on May 2 when it acquired the assets of the
enterprise from Wagner Electric, a St. Louis company
which had operated it as one of its divisions.
During the period encompassing the events involved in
this case Respondent employed approximately 70 persons.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act . It began organizing among
Respondent's employees in July or August, the principal
organizational activity being the solicitation of signatures
on union authorization cards . The parties stipulated that at
the time of the hearing herein the Union had ceased
organizing and had withdrawn from the field.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Robert Tucker's Employment
Robert Tucker was hired by a predecessor company of
Respondent in September 1960. He worked first as a
truckdriver and then variously in the plastics department,
the machine shop , and finally as an inspector in the quality
control department where he was employed at the time of
the alleged discrunination against him. He was permanent-
ly laid off on August 28, 1975. Tucker was then the third or
fourth most senior employee in the plant.
The number of nonsupervisory inspectors employed in
the quality control department has varied over the years
from a high of about five or six to a low of one at the time of
the hearing herein. During the event involved in this case
there were only two employees in that department , Tucker
and his supervisor and head of quality control, Donald
Pryor, who had headed the department since its inception
in 1964. Neither Pryor nor Tucker worked at quality
control full time because they frequently were assigned to
other special duties in the plant.
B. Tucker's Union Activity
1. Past union campaigns
Wagner Electric, the owner immediately preceding Re-
spondent in the operation of the business, experienced two
union organizing campaigns ,3 the first in the summer of
1972 and the second in 1973. Both campaigns failed.
Tucker was not involved in either, but his attitude in both,
known to management, was in opposition to a union.
2. The UAW campaign
As noted earlier , the UAW began organizing among
Respondent's employees in July or August 1975. There was
little discussion in the plant regarding UAW. Tucker
himself was not particularly interested , but on the solicita-
tion of his friend , Dan Anglin , he did sign an authorization
card on August 14. He engaged in no other union activity,
nor did he tell anyone in management he had signed a card.
According to Pryor, whom I credit , Tucker gave him no
indication prior to his layoff on August 28 that his attitude
toward unions had changed in any way from what it had
been in the two earlier campaigns.
Although not specifically instructed to do so by Tomlin-
son, Pryor then spoke with Tucker, informing him he was
accused of starting the union campaign . Pryor told him he
felt Tucker had not started the campaign, that he was
interested in who started the rumor , not whether it was true.
He also said that if Tucker was in the Union it was his own
business.
or and Tucker were longtime coworkers and good
friends . They talked about the rumor problem for 10 or 15
minutes after which Tucker went out into the plant to
inquire of several others as to the source of the rumor. He
learned nothing.
After talking with Tucker , Pryor reported back to
Tomlinson and to Attorney Wolfe. Wolfe instructed him to
talk again with Tucker and make it clear he had not
intended to interrogate him regarding his union views.
Pryor did so. Tucker informed him that he did not feel he
had been interrogated.
Tucker testified without contradiction that at or about
this same time (about a week before his layoff on August
28) Smith told him he should be careful about what he said
around the plant . Just what Smith meant by this ambiguous
comment is not specifically explained.
The complaint alleges , and the answer denies , that Pryor
unlawfully interrogated Tucker . Respondent contends that
there was no interrogation and that in any case Tucker did
not feel interrogated. The evidence does not establish that
Pryor put any specific question to Tucker. The absence of a
grammatical form of question does not , however, dispose of
the issue . What Pryor did was make a declaratory statement
2 Respondent 's postheanng motion to receive exhibits offered and 3 The identity of the union (or unions) involved in these campaigns is not
rejected at the hearing (but included in a rejected exhibit file) is denied . established in the record
JAMCO INTERNATIONAL, INC. 1809
to a subordinate (Tucker) that he was the subject of a rumor
that he had started the union campaign. This comment
invited from Tucker a response which he could not easily
avoid giving. In my view it had the same effect as if Pryor
had in fact asked him whether he had started the union
drive in the plant. For a supervisor to put a subordinate in
that position necessarily interfered with the employee's
freedom regarding union activity. Corriveau & Routhier
Cement Block, Inc., 171 NLRB 787 (1968), enfd. as
modified 410 F.2d 347 (C.A. 1, 1969); The Great Atlantic &
Pacific Tea Company, Inc., 210 NLRB 593, 600 (1974). I
find, therefore, that Pryor committed unfair labor practices
prohibited by Section 8(a)(1) of the Act. That unfair labor
practice, having already occurred, was not wiped out by the
commendable effort of Attorney Wolfe in instructing Pryor
to disclaim any intent to interrogate.
E. The Layoff
On August 28 Tomlinson, for the first time, discussed
with Pryor elimination of the job of inspector held by
Tucker. According to Tomlinson he did not previously
discuss elimination of the job with Pryor, although he had
for some time planned to make the cutback, because he
thought Pryor would disagree with him and was apprehen-
sive he would resign. On August 28 he instructed Pryor to
inform Tucker that he was permanently laid off. Pryor did
so that same day, although he personally did not agree with
the action and did not think it necessary. Pryor told Tucker
that the reason for elimination of his job was that the
Company was putting into effect a different system for
quality control in which production supervisors and group
leaders would take greater responsibility for the quality of
work performed under their direction.
According to Tucker, Pryor told him he was fired. I find,
however, that he was told he was permanently laid off. I so
find because of the credible testimony of Pryor, who at the
time of the hearing was no longer employed by Respon-
dent, and who, in the circumstances, was more disinterested
than Tucker, and also because the Company's documenta-
tion of the personnel action indicates a permanent layoff.
The layoff was effective immediately. Tucker was given 2
weeks' severance pay in lieu of notice.
F. The Smith Comment After the Layoff
On August 29, the day after his layoff, Tucker and Dan
Anglin were sitting in Tucker's car in the company parking
lot around 11:30 a.m. Their purpose was to meet two
women employees who were quitting and take them to
lunch. While they were waiting, Smith, then a supervisor,
came by the car and briefly conversed with Tucker. In this
conversation he told Tucker that he thought he was fired
because of the Union. I base this finding on the credited
testimony of Tucker and the corroborating testimony of
Anglin who at the time of the hearing was still employed by
Respondent.
Smith was not involved in the decision to eliminate
Tucker's job. His testimony indicates he had a conversation
with Tucker in the parking lot on August 29. As to the
substance of the conversation he contradicts Tucker and
Anglin. According to Smith the total conversation consist-
ed of his inquiry to Tucker as to whether he had found
other work and Tucker's reply, "Oh, I'll find something."
He further testified that he saw no one else in the car. Smith
did not specifically deny saying the particular words
attributed to him by Tucker and Anglin. He did testify that
the "allegations" were false but he did not specifically
indicate to what he was referring.
In the circumstances I credit Tucker and Anglin rather
than Smith. They corroborate each other. Although as an
alleged discriminatee Tucker had a basis for being biased,
that cannot be said of Anglin who was still employed by
Respondent at the time of the hearing and conceivably
might run some risk in testifying adversely to the Company.
Smith's testimony was not corroborated. At the time of the
event he was supervisor, and between then and the hearing
he had been reassigned to a nonsupervisory position as a
salesman at a higher rate of pay.
Finding, as I do, that Smith made the above-described
comment in the presence of an employee (Anglin) and a
laid-off employee (Tucker), I further find that such remark,
assigning a discriminatory motive for the layoff, interfered
with employee Section 7 rights and was an unfair labor
practice within the meaning of Section 8(a)(1) of the Act.
J. C. Penney Company, Inc., 202 NLRB 1108, 1110, 1111
(1973). I further find that Smith's conduct is attributable to
Respondent even though there is no evidence that he was
directed to make the statement, or had any function
relating to the supervision of Tucker or Anglin, or was in
any way involved in the layoff of Tucker. He was,
nevertheless, an agent of Respondent at that time and
Respondent bears responsibility for his conduct. See
Section 2(2) of the Act.
G. The Separation Notice
On September 4,4 Respondent issued to Tucker a
separation notice indicating in writing that he was perma-
nently laid off. In his final paycheck he was allowed 2
weeks' severance pay. Tomlinson explained in his testimo-
ny that the layoff was designated permanent because his
job was eliminated and Respondent had no comparable job
for him, and that he was awarded 2 weeks' severance pay
because he had been a longtime satisfactory employee.
H. Recall From Layoff
On September 8 Tomlinson placed a telephone call to
Tucker for the purpose of offering him reemployment in
other jobs. On his first attempt he received no answer so he
incorporated the offer of reemployment in a letter to
Tucker dated September 8. On his second attempt to reach
Tucker by telephone he succeeded. In that conversation he
verbally offered Tucker, as he had in the letter, the option
of two jobs, one in packaging and the other in shipping,
both paying substantially less than the inspector's job in
quality control from which he had been laid off. His
inspector's job had paid $4.44 per hour. The jobs he was
offered carried a wage rate of from $2.65 to $3.61 per hour
4 This was 2 days after the charges were filed m the present matter, but the
charges were not served on Respondent until September 8.
1810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the job in shipping and from $2.65 to $3.19 for the one
in packaging. Tucker rejected the offers indicating that he
was not interested in any job paying less than he had been
earning. In these circumstances I fmd that the offers of
reemployment were not for jobs substantially equivalent to
that from which he had been laid off.
1. Tucker's Last Conversation with Tomlinson
After Respondent received a copy of the unfair labor
practice charges herein, Tomlin on again telephoned Tuck-
er asking him to step in to see him at the office. Tucker did
so a few days later.
Tomlinson explained to him the new concept of quality
control which had resulted in abolition of his job. They also
talked about the charges that had been filed. Tomlinson
indicated surprise that Tucker was active in the Union.
Tucker denied he was active.
Tucker testified that Tomlinson specifically asked him if
he had signed a union card, and he testified he replied that
he would rather not say at that time . Tomlinson specifically
denied asking Tucker if he had signed a card.
On this conflict I credit Tomlinson as having the more
accurate recollection. I think Tucker confused this conver-
sation with the earlier one offering reemployment. Further,
by the time the charges were filed Tomlinson had no
reason , other than satisfaction of his curiosity, to question
Tucker about sigmng a card. I also note that the complaint
does not allege unlawful interrogation on that occasion, nor
does the General Counsel in argument or brief claim such a
violation.
J. The Defense to the Alleged Discrimination
In its defense to the allegation of discrimination Respon-
dent makes two principal points: (a) at the time of Tucker's
layoff management did not know he had signed a union
card (his only union activity), and (b) Tucker was laid off
for business reasons unrelated to union activity.
1. The company knowledge issue
As already found above, Respondent had no specific
information prior to the layoff that Tucker had signed a
union card. Management did know as early as August 14
that organizing activity was going on. There was a rumor
around the plant, which in fact was untrue, that Tucker had
started the union activity. Tomlinson learned of the rumor
about August 20. He testified that he did not believe the
rumor because of Tucker's well-known attitude of opposi-
tion to unions in past campaigns. The question of company
knowledge then depends on a determination of whether
Tomlinson, the responsible company official involved, in
fact disbelieved that rumor. I find that he was in doubt. I
base this on his lack of personal knowledge of Tucker's
prior antiunion attitude, his serious concern regarding the
union organizing drive, and his efforts to have the source of
the rumor tracked down. In this last, I think at least one of
his logical purposes was to find out if there was any basis
for the rumor. No substantiation of the rumor ever
developed. The motive issue , thus reduced, is whether,
knowing of this rumor which could not be substantiated, he
abolished the inspector job and permanently laid off its
incumbent in order to be rid of a possible union adherent.
As set out below, I fmd the weight of evidence does not
support fording such a motive.
2. Other union supporters not laid off
One of the circumstances in this case is that employees
other than Tucker were more visibly active than he in
supporting the Union. Tucker was not the leader of
organizing within the plant. Dan Anglin was. His participa-
tion was obvious to management , as was the participation
of at least one other unnamed employee . Yet there is no
contention that Respondent took action because of union
activity against any employee other than Tucker. If the
Company was seriously engaging in an effort to squelch
unionism by discriminating against union supporters, more
logical candidates than Tucker were available for discrimi-
nation.
3. The June decision
Prior to Respondent's acquisition of the assets of the
enterprise on May 2, Tomlinson, together with members of
existing and prospective management, reviewed the entire
operation. Among other things, they concluded the Compa-
ny was overstaffed in various departments, including
shipping, engineering, and quality control. The existing
quality control system centered on two employees, Pryor,
the head of quality control, and Tucker, the only inspector.
Tomlinson entertained a philosophy of quality control
which differed from the existing system. His idea was to
limit the department to one professional (Pryor) and to
disperse partial responsibility for quality control to the
various production supervisors and the crews working
under them. Following the May 2 takeover he discussed his
ideas with other members of top management. In general
terms he discussed them with Pryor although Pryor never
understood that Tucker's job was in jeopardy. Tomlinson
testified credibly, and I find, that he held off informing
Pryor that the inspector job might be eliminated because he
felt that Pryor disagreed with him on his philosophy of
quality control and would also disagree that the job of
inspector should be eliminated. His feeling in this regard
was accurate. He feared Pryor would resign.
Late in June, Tomlinson, with the concurrence of other
top management, made the decision to change the quality
control system in accordance with his philosophy, including
elimination of the job of inspector. It was further decided,
however, not to put this into effect immediately.
4. The assignment of Pryor to the warehouse
project
As already noted, Pryor and Tucker frequently per-
formed work other than quality control work. As a result of
the reorganization incident to the takeover on May 2 which
caused special warehousing problems, Tomlinson assigned
or temporarily to oversee an extensive warehousing
project. He had already started on this at the time the
decision was made in late June to alter the quality control
system. Implementation of the planned changes in quality
control were held in abeyance pending Pryor's return to
quality control from his temporary assignment in ware-
JAMCO INTERNATIONAL, INC. 1811
housing . In the interim Tucker, who was less qualified than
Pryor, worked alone in quality control.
5. Implementation of the June decision
Plant Manager Edward Campbell testified without con-
tradiction that, about August 25, he told Tomlinson that
Pryor's warehouse assignment would be ending around the
end of the month. Tomlinson corroborates Campbell. On
the other hand, Pryor's testimony indicates he still had
work to do in the warehouse project, although, as he put it,
it was "on the downhill drag," that he was not returned to
quality control until about August 29 or September 1, after
Tucker's departure, and that even then some unfinished
portions of the warehouse project had to be left in the hands
of shipping employees. This raises a suspicion that the
timing of the quality control reorganization may have been
advanced for unlawful reasons . But reorganizations of the
departments and decisions respecting the need for services
performed by this or that department are essentially
business judgments. This one had been in the works a long
time . The evidence does not establish more than a suspi-
cious circumstance respecting the timing of the change.
Shortly after learning from the plant manager that the
warehouse project was ending for Pryor, Tomlinson on
August 27 discussed with his labor relations counsel the
elimination of the inspector job, including his desire to
eliminate the job as soon as possible and the fact that the
present company had not established layoff procedures. He
determined in the circumstances to proceed with the
planned reorganization.
On August 28, Tomlinson called in Pryor and as already
noted for the first time discussed with him elimination of
the job of inspector. He did not involve Pryor in the
decision; he had already made up his mind. He directed
Pryor to immediately lay off Tucker that day. As already
noted, Pryor did so.
6. Pryor's return to quality control
Pryor did not of his own volition leave the warehousing
work when Tucker was laid off. Even though no one was
left in quality control, he continued in warehouse for a
short time. Campbell, as well as Melton, saw him there and
each asked him what he was doing, that he was supposed to
be back in quality control. Pryor's response was that no one
had directed him to return to quality control. The situation
suggests a lack of communication between Pryor and
higher management.
Pryor testified without contradiction that at the time of
the layoff there was plenty of work in the quality control
department, that when he returned to that department there
remained plenty to do, and that, had Tucker still been
there, there would have been plenty for him to do.
Respondent does not contend otherwise. Respondent's
position is that a business judgment had been made to
reorganize the quality control function along different lines
putting greater reliance and responsibility therefore on
production supervisors and limiting the operational func-
tioning of the single professional left in the quality control
department.
An additional function was placed on the single profes-
sional; namely, the training of production supervisors as to
their mission in quality control. It is not clear whether
Tucker could have performed satisfactorily in that training
function, as did Pryor, who had significantly better creden-
tials than Tucker.
Respondent has been consistent in implementing the
reorganization. The training of production supervisors in
quality control has gone forward. The inspector's job held
by Tucker has in fact been eliminated and has not been
reestablished.
The evidence shows that Tucker was a satisfactory
employee. Respondent does not contend otherwise. But the
evidence does not indicate he was indispensable, particular-
ly in view of the new management 's different philosophy of
quality control resulting in a revision of the program.
7. Resolution of the issue of tuning
The permanent layoff without notice of a longtime,
satisfactory employee who, known to management, was the
subject of an unsubstantiated rumor that he had started the
union organizing campaign a few weeks earlier , is suspi-
cious. The employer's motive in making the layoff must be
assessed in light of all the circumstances. In this case it is
established that within the immediate tunespan which
included the layoff, agents of the employer twice interfered
with employee rights contrary to Section 8(a)(1) of the Act.
The last and least troublesome of these occurred the day
after the layoff when Smith told Tucker and Anglin he
thought the layoff resulted from union activity. While I
think, as found earlier herein, that Respondent is legally
responsible for this unlawful interference with employee
rights, the incident in my view does not have significant
import respecting the reasons for the layoff of Tucker
because Smith, although a supervisor, was not involved in,
nor privy to, the decision to lay off and, in fact, had no
function whatsoever respecting Tucker. Accordingly, I
draw no inference of union animus nor of discriminatory
motive from that incident.
The earlier incident of interrogation by Pryor approxi-
mately a week before the layoff is more troublesome. Pryor
was Tucker's immediate supervisor. He was also the
managerial official who ministerially performed the func-
tion of laying off Tucker. Although he was not involved in
the decisionmaking process, and in fact disagreed with the
decision, he was involved in investigating the rumor that
Tucker had started the organizing drive. And, although he
was not specifically directed by higher management to
interrogate Tucker, and, in fact, the interrogation was
contrary to the company attorney's instructions given 2
days before, he was asked to run down the source of the
rumor. Whether or not he misinterpreted his authority in
this regard, it was pursuant to these instructions that he
discussed the matter with Tucker and in the process
indulged in what amounted to coercive interrogation. Since
investigation of the rumor was set in motion by higher
management and since Respondent is responsible for the
conduct of its supervisors, it is arguable that a strong
antiunion attitude may be inferred. But I think that would
be an overdrawn inference. Nothing in the chain of events
leading up to the interrogation nor in the events that
1812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
followed indicates that higher management desired to
overstep the bounds of lawful conduct . What the record as
a whole reveals is that management was troubled by the
union organizing effort; troubled enough to immediately
seek expert legal counsel to assist in charting its course and
to instruct its supervisors . But being concerned that a union
is organizing among the employees is not the same as
harboring union animus . Nor does it establish the employ-
er's willingness to commit unfair labor practices , including
discrimination against employees , because of union activi-
ty. I find, therefore, that there is a shortage of evidence of
union animus sufficient to aid a fmding of discriminatory
motive in the layoff of Tucker.
The fact that about a week before the layoff Smith told
him to watch what he said or how he spoke does not change
this . The comment was ambiguous . It was not satisfactorily
tied to the topic of unionism . It is not established in the
record what subject was being discussed at the time. Smith
testified without contradiction that he was ignorant of
Tucker's attitude on unionism . And, since he was not
involved in the layoff decision, it cannot be said his words
reflect the employer's thinking on the subject . No other
evidence ties Smith's comment to management thinking so
that an inference that he reflected it would be warranted.
The above analysis seems consistent with the circum-
stances that Respondent made no effort to discriminate
against other employees for known union activity including
the most active union proponent , Anglin, and with the fact
that Tucker was inactive in the organizing drive except for
the single act of signing a union card (company knowledge
of which is not established) and the fact that he was the
subject of a rumor which management claims not to have
believed.
More important , however, is the existence of a lawful
business reason for the layoff. The decision to eliminate
Tucker's job had been made long before, and the timing of
the implementation of that decision , although not com-
pletely explained and opened to some question, was
generally in accordance with the preexisting plan of
reorganization.
At approximately the time of the layoff Pryor had
basically accomplished his warehouse mission , although the
project was not entirely completed and some work was left
to be done by shipping employees . But his return to quality
control fits approximately with the planned reduction in
that department . Tucker's job was in fact eliminated at that
time and he has not been replaced.
Higher management 's deliberate effort to keep Pryor in
the dark about its plans is adequately explained . And this in
part explains the abruptness of the implementation of the
plan for abolishing the inspector job.
What remains unexplained is why Respondent made the
layoff effective immediately , giving Tucker 2 weeks' extra
pay, apparently in lieu of notice, when it might just as well
have had his services for those 2 weeks . This is suspicious. It
suggests a possible desire to get him out of the plant
immediately . But on the other hand he was shortly
thereafter offered reemployment at two other jobs. Even
though they paid less, Tomlinson had no assurance when he
made these offers that Tucker would reject them. Thus,
there is little basis for inferring a management desire to put
and keep Tucker out of the plant.
Tomlinson's testimony suggests that the 2 weeks' sever-
ance pay was in the nature of a bonus to a longtime,
satisfactory employee . If so , this suggests some guilt feelings
about laying him off so abruptly. But in any case that does
not seem to be material to the question of motive in the
layoff.
The General Counsel urges that the layoff of Tucker, who
had the third or fourth highest seniority in the plant,
departed from established layoff policy. Respondent con-
tends no such policy existed.
In fact Wagner , the predecessor company, followed a
system of plantwide seniority in making layoffs. This
allowed more senior employees subject to layoff in one
department to bump less senior employees in other depart-
ments. From management 's point of view undesirable
inefficiencies flowed from this system.
The new management taking over May 2 was considered
revising many aspects of the operation, including layoff
procedures. But nothing was done in this regard until
August 27. The record is barren of evidence respecting
layoff procedures actually followed between May 2 and
August 28.
On August 27 Campbell told Tomlinson that Pryor would
be done with the warehouse by the end of the week. This
meant that the planned revision of the quality control
function could be implemented and the job of inspector
abolished . By then management knew of the organizing
campaign . With commendable caution Tomlinson consult-
ed his labor relations counsel . Apparently he told his
counsel , among other things, that they had no established
layoff procedures. Consideration was then given to the
system used by Wagner based on plantwide seniority. This
method was rejected for reasons of efficiency. A system
based on departmental seniority was also considered. On
advice of counsel this also was rejected because of equal
employment considerations . What was settled on, and
announced to a meeting of supervisors on August 27, was a
layoff procedure by department whereby employees within
a department would be laid off according to their seniority
in the plant. But employees so laid off would not be entitled
to bump employees to other departments with less plant-
wide seniority.
Applying this system to the already-made decision to
abolish the inspector position in the quality control
department resulted in the layoff of Tucker. The layoff was
classified as permanent because at the time no other
opening for which Tucker was qualified existed . However,
Respondent considered him eligible for recall from layoff
as shown by the offers of employment made him Septem-
ber 8.
In view of the above I find that valid business considera-
tions existed for Tucker's layoff. Given the existence of
valid business reasons, I find the evidence insufficient to
warrant a finding that timing of the plan for revising quality
control was substantially motivated by a desire to discrimi-
nate against him rather than by a lawful desire to carry out
the reorganization . I find that unlawful motive has not been
established by a preponderance of the evidence.
JAMCO INTERNATIONAL, INC. 1813
At the close of the hearing Respondent moved to dismiss
the complaint for lack of sufficient evidence. I grant that
motion as to the 8(a)(3) allegations, but deny it as to the
8(a)(1) allegations.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce. They are unfair labor practices within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent threatened, coerced, and restrained
employees in the exercise of rights guaranteed in Section 7
of the Act, and thereby committed, and is committing,
unfair labor practices within the meaning of Section 8(a)(1)
of the Act by the following:
(a) On August 20, 1975, through Quality Control Depart-
ment Supervisor Donald Pryor, discussing union activity
with employee Robert Tucker under circumstances and in a
manner calculated to induce the employee to reveal his
union views or activity.
(b) On August 29, 1975, through Materials Handling
Supervisor Robert Chase Smith, informing employees
Robert Tucker and Dan Anglin that he thought Tucker had
been fired because of union activity.
4. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend that it cease and desist therefrom
and take certain affirmative action to effectuate the policies
of the Act. I further recommend that Respondent post
appropriate notices at its premises.
5 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommend Order herein shall , as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all objections shall be deemed waived
for all purposes.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDERS
The Respondent, JAMCO International, Inc., Oklahoma
City, Oklahoma, its agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Directly or indirectly interrogating employees about
their union views or actions.
(b) Informing employees that one employee was fired
because of union activity.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
to self-organization, to form labor organizations, to join or
assist International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW),
or any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed
in Section 7 of the Act, or to refrain from any or all such
activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in
Section 8(a)(3) of the Act as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at its premises copies of the attached notice
marked "Appendix."s Copies of said notice, on forms
provided by the Regional Director for Region 16, after
being duly signed by Respondent's authorized representa-
tive, shall be posted by Respondent immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places at its plant, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that allegations of unfair labor
practices not specifically found herein are dismissed.
6 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."