Jamco (Johnson Architectural Metal Co.)

National Labor Relations Board - Board Decisions

Jun 12, 1989

294 N.L.R.B. 896 (N.L.R.B. 1989)

896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
JAMCO (Johnson Architectural Metal Company)
and Glaziers , Architectural , Metal & Glass
Workers Local Union 1940 . Cases 10-CA-
22910 and 10-RC-13540
June 12 1989
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On April 4, 1988, Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The Respondent filed exceptions and a supporting
brief. i
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 brief and has
decided to affirm the judge's rulings, findings,2 and
conclusions as modified and to adopt the recom-
mended Order as modified.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 3.
i The General Counsel and the Charging Party did not except to the
judge's various dismissals of certain complaint allegations
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We adopt the judge's finding that Project Manager Edell violated the
Act by telling the employees that the Respondent would close, move, or
change its name if the employees selected the Union In adopting, how-
ever, we find it unnecessary to rely on the judge's statement (at sec
II,B,4, par. 9) that there were no specific denials by the Respondent's
witnesses of employee Fletcher's testimony on the point Instead, we base
our finding that Edell actually made such a statement on the judge's spe-
cifically crediting Fletcher's "believable testimony" and his reliance on
Edell's admitted references to the closing of PPG, another union contrac-
tor Further, in light of the clear threat of loss of jobs involved in Edell's
unlawful statement, we find it unnecessary to pass on the judge's further
finding that Edell also unlawfully threatened employees with the loss of
jobs by telling them that the election of the Union would result in fewer
jobs for the Respondent's employees because metal frame work would be
assigned to the ironworkers
In addition to finding an unlawful threat of plant closure, Member Cra-
craft would affirm the judge's finding that the Respondent 's statement
that the ironworkers would be brought in to handle the metal frames and
the Respondent's employees who were then doing metal frames would go
to the bench in the event the Union won the election was an unlawful
threat ofjob loss in violation of Sec 8(a)(1)
Given the judge's crediting on demeanor grounds of employees Kerr
and Harris over Supervisors Maynard and Dennis, we further find it un-
necessary to rely on the judge' s statement at sec II,C,2, par 2 that May-
nard and Dennis failed to contradict Kerr's testimony that Maynard had
said that their recall from layoff would probably be after "this Union
business" was over
In adopting the judge's findings on unlawful interrogation, Member
Cracraft does not rely on Sunnyvale Medical Clinic, 277 NLRB 1217
(1985)
"3. By coercively interrogating an employee re-
garding his union membership or activities; and by
threatening to close, move, or change its name if its
employees selected the Union to represent them,
the Respondent engaged in, and is engaging in,
unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act."
2. Substitute the following for Conclusion of
Law 6.
"6. The Union's Objections 1 and 7 have merit
and are sustained, while Objections 3, 6, and 9 are
without merit and are overruled, and Objection 8
need not be passed on."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set forth in full below and
orders that the Respondent, JAMCO (Johnson Ar-
chitectural Metal Company), Atlanta, Georgia, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees regarding
their membership or activities on behalf of Gla-
ziers, Architectural, Metal & Glass Workers Local
Union 1940, or any other labor organization.
(b) Threatening its employees that it will close
its facility, move, or change its name if they select
the above-named or any other labor organization to
represent them.
(c) Discriminatorily selecting employees for
layoff or otherwise discriminating against employ-
ees in order to discourage their activities on behalf
of the above-named or any other labor organiza-
tion.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Roman Modest, Mitchell Kerr, Charles
Russell, and Robert Harris immediate and full rein-
statement to jobs occupied by them prior to any
discrimination against them or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them
whole with interest for any loss of earnings and
other benefits suffered as a result of the discrimina-
tion against them in the manner set forth in the
remedy section of the decision.
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
294 NLRB No. 80
JAMCO
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way.
(d) Post at its facility in Atlanta, Georgia, and all
jobsites where it is currently doing business and
employing employees in the unit described in Case
10-RC-13540, copies of the attached notice marked
"Appendix."3 Copies of the notice, on forms pro-
vided by the Regional Director for Region 10,
after being signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations of the Act
not specifically found.
IT IS FURTHER ORDERED that the Union's Objec-
tions 1 and 7 are sustained , that Objections 3, 6,
and 9 are overruled, that the election conducted on
October 14, 1987, is set aside, and that Case 10-
RC-13540 is severed from Case 10-CA-22910 and
remanded to the Regional Director for Region 10
to conduct a new election when the Regional Di-
rector deems it appropriate.
[Direction of Second Election omitted from pub-
lication.]
s 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 Nation-
al 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 "
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
897
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 our em-
ployees regarding their membership in, or activities
on behalf of, Glaziers, Architectural, Metal &
Glass Workers Local Union 1940, or any other
labor organization.
WE WILL NOT threaten to close, move, or
change our name if employees select the above-
named or any other labor organization to represent
them.
WE WILL NOT discriminatorily select our em-
ployees for layoff or otherwise discriminate against
them because of their union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed them by Section 7 of
the Act.
WE WILL offer Roman Modest, Mitchell Kerr,
Charles Russell, and Robert Harris immediate and
full reinstatement to their former jobs or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges, and WE WILL make
them whole with interest for any loss of pay they
suffered as a result of the discrimination against
them.
WE WILL remove from our files any reference to
the discharges of Roman Modest, Mitchell Kerr,
Charles Russell, and Robert Harris and notify the
employees in writing that this has been done and
that the discharges will not be used against them in
any way.
JAMCO (JOHNSON ARCHITECTURAL
METAL COMPANY)
Gaye Nell Hymon, Esq., for the General Counsel.
Mcned Stokes and John Underwood, Esqs., (Stokes, Sha-
piro, & Wedge), of Atlanta, Georgia, for the Respond-
ent-Employer.
Paul L. Styles, Jr., Esq., (Blackburn, Schuster, King &
King), of Atlanta, Georgia, for the Charging Party-Pe-
titioner.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
This matter was tried at Atlanta, Georgia, on 10 and 11
February 1988. The charge was filed by Glaziers, Archi-
tectural, Metal & Glass Workers Local Union 1940 (the
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union), on 5 October 1987,1 and amended 30 October
and 4 November. The complaint issued on 23 November
alleging that JAMCO (Johnson Architectural Metal
Company) (Respondent or the Company), violated Sec-
tion 8(a)(3) and (1) of the National Labor Relations Act
(the Act). The issues presented are whether Respondent,
(a) unlawfully interrogated employees regarding their
union activities, (b) made various unlawful threats to em-
ployees to discourage their union support, (c) made un-
lawful promises to employees regarding wage increases
and insurance benefits to dissuade them from supporting
the Union, and (d) discriminatorily discharged four em-
ployees on 4 September because of their activities on
behalf of the Union and other concerted activities.
The record shows relative to representation Case 10-
RC-13540 that the petition was filed by the Union on 5
August. Following a representation case hearing on 21
August, a Decision and Direction of Election issued on
15 September and an election was held on 14 October.
Of approximately 59 eligible voters, there were 13 votes
for, and 39 against, representation with 7 challenged bal-
lots. The Union timely filed nine numbered objections to
the election on 26 October, and as noted, the Regional
Director found the objections were largely coextensive
with the allegations in the complaint in Case 10-CA-
22910, and in an order directing hearing and consolidat-
mg cases, issued on 4 December, ordered that the repre-
sentation case be consolidated with the unfair labor prac-
tice case for hearing.2
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and Respondent and
the oral argument of the Charging Party made at the
hearing, I make the following
metal framed curtain walls, with construction jobs in the
Atlanta, Georgia metropolitan area as well as in Florida,
Tennessee, and North Carolina. The Atlanta jobs, includ-
ing the IBM Tower, Corporex, Concourse 5, and Lenox
Hotel, are large multistoried commercial structures. In
Florida Respondent was engaged in work at the North
Carolina National Bank building in Tampa. Different
work crews were employed at each of these locations
with each location or job headed by a job superintend-
ent. Hiring of employees was customarily done at each
project, but Respondent had in the past maintained a
corp of skilled employees that it transfered between
projects as old jobs were completed and new ones
begun.
Respondent's employees historically had been unrepre-
sented, and the record reveals no prior attempts by em-
ployees at union representation. The record also fails to
reveal precisely when the union organizational campaign
involved in this case began, but it implies that it *began
with Respondent's employment of Johnnie Lambert.
Lambert testified for the General Counsel that he was
hired by Respondent on 24 July, apparently at the IBM
Tower jobsite and worked for 1 week during which time
he obtained signatures on union authorization cards from
an unspecified number of employees. Lambert was dis-
charged by Respondent about 31 July, and although his
discharge was alleged to be discriminatory by the Union
in the initial and first amended charge no such allegation
is contained in the last amended charge or the complaint
allegations. The discharges, which were alleged in the
complaint to be discriminatory and which were litigated
are discussed below.
B. The Alleged Independent 8(a)(1) Violations
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Georgia corporation with an office
and place of business in Atlanta, Georgia, where it is en-
gaged in the erection of curtain walls, stone work, caulk-
ing, and glazing. During the calendar year preceding is-
suance of the complaint Respondent purchased and re-
ceived at its Atlanta, Georgia jobsites materials and sup-
plies valued in excess of $50,000 directly from suppliers
located outside the State of Georgia. The complaint al-
leges, Respondent's answer admits, and I fmd that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. The com-
plaint also alleges, Respondent also admits, and I further
fmd that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent, at the times material, was engaged in the
building and construction industry installing and glazing
' All dates are in 1987, unless otherwise indicated
2 The withdrawal of Objections 2, 4, and 5 by the Union was approved
in the order directing hearing
1. The conduct of Ray Maynard
At all material times Ray Maynard was employed by
Respondent as its job superintendent on the Concourse 5
site in north Atlanta. The complaint alleges that on 5
August Maynard interrogated employees concerning
their union membership, activities, and desires. Roman
Modest, an alleged discriminatee in this case, testified in
support of this allegation that he sought a job from May-
nard on 4 August at the Concourse 5 jobsite. Modest
was briefly interviewed by Maynard, and as the two
were headed toward Maynard's truck an unidentified air-
conditioning worker commented to Maynard that he
should hire Modest, that Modest was a good worker.
Maynard then asked Modest if he were affiliated with a
union, and Modest responded that he was trying to get
on with the Union but that they were not taking any
new members. Modest in fact was a member of the
Union and had been since 1984. Following his hiring
Modest participated in the Union's organizational effort
and testified at the hearing in the representation case on
21 August.
The General Counsel and Charging Party argue that
Maynard's questioning Modest about his union affiliation
was unlawful. Maynard, while a witness, did not deny
the question Modest attributed to him. Accordingly, and
because Modest's testimony was clear, straightforward,
JAMCO
and specific, I credit such testimony and find Maynard
asked the question claimed by Modest. Not all question-
ing of an employee regarding unions by a supervisor is
unlawful. See Sunnyvale Medical Clinic, 277 NLRB 1217
(1985); Rossmore House, 269 NLRB 1176 (1984). Mayn-
ard's question was not accompanied in this instance by
any remark remotely suggesting any opposition to the
Union. Indeed, while not giving an entirely truthful re-
sponse to Maynard, Modest was not deterred from at
least indicating his union sympathy by telling Maynard
that he had tried to get into the Union. Moreover,
Modest testified that he completed his application for
employment with Respondent by voluntarily indicating
which prior jobs he had worked on were union or non-
union . Finally, Modest was obviously hired notwith-
standing his revelation of an effort to join the Union.
Under these circumstances, I view Maynard's question
was casual and innocuous , and more related to, if any-
thing, ascertaining Modest's experience rather than to his
potential as a union organizer or supporter . I find Mayn-
ard's question under the circumstances had no tendency
to coerce, and I find Respondent did not violate Section
8(a)(1) of the Act by such question.
The complaint also alleges that on or about 1 October
Maynard threatened employees on the Concourse 5 job-
site that it would be futile for the employees to select the
Union as their collective-bargaining representative by
saying Respondent would not "go Union" under any cir-
cumstances. No evidence was adduced on this allegation,
however, and it will be recommended that this complaint
allegation be dismissed.
2. Conduct attributed to Tony Faulkner
Tony Faulkner was employed by Respondent as its job
superintendent on the IBM Tower. The complaint al-
leges that Faulkner interrogated an employee regarding
his union membership on the IBM jobsite on or about 29
July. Proof of the allegation rests on the testimony of
Lambert who related that after he had been working on
the job a couple of days, having been employed 24 July,
Faulkner approached him and asked him if he was
Union. Lambert replied that he belonged to the Operat-
ing Engineers. Faulkner then further inquired why Lam-
bert was not working out of the union hall and Lambert
replied that he did not want to. Lambert expressed un-
certainty about Faulkner's further response. While it ap-
peared clear that Faulkner said Respondent was "not
union," Lambert was unsure whether Faulkner added
that Respondent "wasn 't going union" or whether he
said Respondent "didn 't want a Union."
In testifying for Respondent Faulker admitted that he
asked Lambert questions about whether "he was carry-
ing any kind of book or a card or anything for a refer-
ence on how long he had been a member of a union or
anything as far as experience-wise." He further admit-
ted that Lambert replied he carried an Operator's card,
and that Faulkner had asked why he wasn't operating
equipment rather than glazing. Faulkner claimed that his
questions were made in the context of trying to establish
the extent of Lambert's glazing experience, since Lam-
bert had demonstrated by his work that he was not an
experienced glazier . In this regard, Faulkner testified that
899
the had asked Lambert, at the same time, the names of
any companies for which Lambert had previously pre-
formed glazing work.
Weighing the testimony of Lambert against that of
Faulkner I credit the former. Lambert impressed me as
candid while Faulkner at times appeared evasive. More-
over, I note that Faulkner did not specifically deny Lam-
bert's testimony to the effect that Faulkner said Re-
spondent was "not Union." That added remark was in-
consistent with an innocent question about union mem-
bership as an indicator of past experience. Further, the
timing of Faulkner's questions, coming as they did only a
few days after Lambert had been hired, are more in
keeping with an effort to ascertain union proclivity or
activity than to determine the extent of Lambert's experi-
ence. In light of this, and considering Faulkner's further
concession that sometime during Lambert 's brief 1 week
of employment with Respondent Faulkner learned he
was a union organizer, I conclude that it was more prob-
able that Faulkner's questions were not innocuous. I find
it more likely they were designed to discover or verify
Lambert's Union proclivities. Considered in context with
Faulkner 's notation to Lambert that Respondent was not
union I find Faulkner's questions tended to restrain or
coerce employees in violation of Section 8(a)(1), as al-
leged. An employee questioned under the circumstances
found would not likely overlook the implication that
union support would engender Respondent's displeasure
with all its ramifications.
The complaint also alleges that on or about 12 Octo-
ber Faulker threatened employees at the Concourse 5
jobsite that Respondent would close its plant if employ-
ees joined the Union or engaged in union activities. No
evidence was adduced in support of this allegation. Ac-
cordingly , dismissal of this complaint allegation will be
recommended.
3. The unlawful conduct attributed to Albert Bell
a. The supervisory status of Bell
At the material times Albert Bell was employed by
Respondent at its NCNB jobsite in Tampa, Florida. The
complaint alleged , and Respondent denied , that Bell was
a supervisor and that on or about 1 October he unlawful-
ly promised Respondent's Tampa employees increased
benefits if they refrained from union activities. Respond-
ent contends that Bell was only a leadman and an eligi-
ble employee as found in the Regional Director's Deci-
sion and Direction of Election in Case 10-RC-13540. At
the hearing, Respondent asserted that the General Coun-
sel is precluded from taking a position inconsistent with
the Regional Director 's decision by claiming that Bell is
a supervisor within the meaning of the Act. I find no
merit to Respondent's contention. It is well settled that a
representation case finding that an individual is not a su-
pervisor is not binding in a subsequent unfair labor prac-
tice proceeding involving, as here, a violation of Section
8(a)(1) of the Act, as opposed to an 8(a)(5) allegation
which, would be deemed to be "related" to the represen-
tation case findings and any resulting certification. See
Williamson Memoral Hospital, 284 NLRB 37 (1987); Serv-
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
U-Stores, Inc., 234 NLRB 1143 (1978), Greenbriar Hotel,
216 NLRB 721, 723 (1975). However, the Regional Di-
rector's decision and the record in the representation
case, of which I have taken administrative notice, have
been considered by me in addition to the evidence pre-
sented before me in the unfair labor practice proceeding
in determining Bell's supervisory status.
Bell, in his testimony before me, described himself as
the foreman on the Tampa job, having been employed
by Respondent for about 5 years. While Bell denied that
he did any hiring and firing, he conceded that under the
direction of A. J. Hege, job superintendent, Bell sched-
uled work and kept the worktime of employees in a
notebook. Any disputes about the accuracy of the time
kept was resolved between Bell and the employee in-
volved. He further conceded, and other record evidence
supports the fact, that he granted time off to employees
without going through Hege. Although, as noted, he did
not directly hire or fire employees, Bell made recommen-
dations to Hege regarding such actions, and he estimated
that Hege followed his recommendations on hiring 75
percent of the time. However, Bell related that Hege
"screens" the hirings.
Bell testified he attends periodic meetings, usually bi-
monthly, between Job Superintendent Hege and Project
Manager Dave Edell. Further, in the absence of Hege,
Bell as representative of Respondent attends meetings be-
tween the job's general contractor and subcontractors.
An estimate in the record by employee James Fletcher
that Bell only worked with tools along with the employ-
ees only 20 percent of the time was not specifically con-
tradicted by Bell. Moreover, Bell admitted that Respond-
ent had about four other "foremen" over a total of about
20 employees who "reported" to Bell as "head foreman,"
and that he with the other foremen distributed the work-
load to the employees.
Section 2(11) of the Act defines a supervisor as "any
individual having authority . . . to lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such au-
thority is not of a merely routine or clerical nature, but
requires the use of independent judgment." Possession of
one of these enumerated powers is sufficient to establish
supervisory status. NLRB v. Edward G. Budd Mfg. Co.,
169 F.2d 571, 576 (6th Cir. 1948), cert. denied 335 U.S.
908 (1949). I find Bell to be a supervisor. The evidence
here specific to Bell as opposed to leadmen generally
whether or not also called "foremen," fully establishes
that Bell kept the time by which employees were paid
Further, he adjusted any grievances on the accuracy of
the time independently of the job superintendent. More-
over, Bell even disciplined employees by docking them a
specified amount of time for tardiness, which he deter-
mined. It is further clear that Bell independently assigned
work, and substituted for the project' superintendent in
his absence even in meetings with the general contractor.
In this respect, the record fully establishes that degree of
discretion in control of employees which warrants the
finding of Bell's supervisory status.
b. The conduct of Bell
The General Counsel's contention that Bell made un-
lawful promises is based on the testimony of Tampa em-
ployees Rudolph Guthrie and James Fletcher. According
to Guthrie, around the first of October Bell approached
him and Fletcher who were working together on the job
and told the two that he realized that they were doing
"frustrating work," and that "We're not promising you,"
and "We're not trying to buy your vote or anything like
that," but that "We're going to see what we can do
about getting you more money." Fletcher generally cor-
roborated Guthrie's testimony, but added that Bell had
previously told the employees that raises would be
frozen until "this," an apparent reference to the union
campaign, was all over with. Bell, further according to
Fletcher told him and Guthrie that they were not sup-
posed to give any raises, but "were going to try to see
what we can do for you guys."
Bell did not address, and thus did not deny, the re-
marks regarding raises attributed to him by Guthrie and
Fletcher. Thus, Guthrie and Fletcher are credited on this
point. There was no evidence, however, that they were
actually granted a wage increase prior to the election or
even after the election The promise of benefits by an
employer during an election campaign may constitute a
subtle but nevertheless unlawful inducement if its pur-
pose is to impinge of the employees freedom of choice in
selecting union representation. See NLRB v. Exchange
Parts Co., 375 U.S 405 (1964). Based on Guthrie' s testi-
mony Bell made a point of stressing that he was not
promising either man he would be successful in attempt-
ing to secure a raise for them. The timing of Bell's
remark obviously implies the promise of a raise based on
union considerations, notwithstanding his assertion that
no promise was being made. On the other hand, and con-
sidering Respondent's prior announcement that wages
would be frozen during the union campaign , there is no
other evidence suggesting that Bell's statements were in-
tended to be more than an effort to encourage employees
who, by Fletcher's testimony, Bell recognized were car-
rying more than their share of the work. Further, Bell
did not condition his efforts toward a wage increase for
the two on the outcome of the election or their support
of the Union if in fact they did so support it. Under all
these circumstances, I find it difficult to conclude that
Bell's remarks constituted a promise of benefits to dis-
courage union support despite his specific averments to
the two employees to the contrary. Accordingly, I find
Bell's remarks did not constitute a promise of benefits to
discourage union support in violation of Section 8(a)(1)
of the Act as alleged.
4. The statements attributed to Dave Edell
The complaint, as amended at the hearing, alleged that
Dave Edell, project manager for Respondent on the
Tampa job, on or about 9 October, at the Tampa jobsite,
threatened employees it would be futile for them to
select the Union since Respondent would not sit down
and negotiate with the Union, that employees would lose
jobs if they engaged in Union activities, and that Re-
spondent would close if employees joined or engaged in
JAMCO
union activities Again the General Counsel relied on the
testimony of Guthrie and Fletcher to prove the allega-
tions. Their testimony, discussed below, is mutually cor-
roborative in some, but not all, respects.
According to Guthrie's testimony, Edell spoke to as-
sembled Tampa employees a week before the election
and told employees that Respondent did not want to "go
union," and that they were not going to go union. Edell
added that if the employees wanted to go union, "fine,"
they could do so, but that Respondent would not sit
down and negotiate. Further, Edell stated that all the
Union wanted was their jobs working with the metal
frames and explained that the Iron Workers Union
would be brought in to handle the metal frames, that the
Iron Workers' members sitting on the bench would
"come in," and the Respondent's employees who were
then doing the metal frame work would go on "the
bench."
Unlike Guthrie, Fletcher did not attribute any remark
to Edell in the meeting to the effect that Respondent
would not sit down and negotiate with the Union
Indeed, on cross-examination Fletcher testified he did
not hear Edell say that Respondent would not bargain or
"anything like that." However, he did relate that Edell
said it was Respondent's policy not to be union and that
Respondent would "either close the doors or we will
move to another location, or we will change our name."
Moreover, Edell added that the Iron Workers would do
all the metal work, and that Respondent "probably won't
need half of you guys, because all you guys would be
doing is setting glass." Edell concluded saying, "The
Union doesn't need any more men," and "The Union
wants your jobs."
According to Fletcher, Edell referred to Pittsburgh
Plate Glass Company (PPG), observed that it was the
"only signed" union contractor in Atlanta, remarked
"You all know what PPGs fixing to do," and said,
"They're fixing to sell out or close the doors."3 While
not entirely clear from Fletcher's testimony, it appears
he believed the reference to PPG was made in the con-
text of Edell's claim that the Union only wanted the jobs
of Respondent's employees
Edell, who was conceded by Respondent to be its
agent although not a supervisor within the meaning of
the'Act, testified that he did in fact have a meeting with
the Tampa employees, but placed it on Monday, 12 Oc-
,tober. According to Edell, the meeting was intended to
be a question and answer session, and he conceded that
he made remarks regarding the closing of PPG and
about the Iron Workers. Regarding the former he testi-
fied it was discussed because it was a matter of interest
to Respondent's employees, but he was initially vague
with respect to how the subject was raised and the
extent of his remarks on-the matter. With respect to the
ironworkers, Edell failed to relate exactly what he told
the employees, but he testified that it was his understand-
ing that in the curtain wall business work was split be-
tween the Iron Workers and the Glaziers, with Iron
3 Fletcher conceded that it was already common knowledge among
employees that PPG was "fixing to either close the doors or go out of
business "
901
Workers assuming work responsibility for anything in-
volving metal [frames] and that Glaziers has responsibil-
ity for glazing. Edell was not specifically asked, and thus
did not specifically deny, the statement attributed to him
by Guthrie to the effect that Respondent would not ne-
gotiate with the Union
Bell testified that he attended the meeting at which
Edell spoke. He denied that Edell said that Respondent
would not negotiate with the Union. Although he veri-
fied the discussion regarding PPG at the meeting, his
recollection of the context was that since PPG was clos-
ing Respondent would be "filling the void." Bell, a
former business agent of a local Glaziers Union in
Tampa, also confirmed that Edell referred to the Iron
Workers and testified that Edell said that the Iron Work-
ers, who do the metal work, "would probably do most
of the work, if there was an election."
Job Superintendent Hege also testified regarding the
meeting of 12 October and generally supported Bell's
version of the remarks regarding PPG made at the meet-
ing. He likewise testified that to his knowledge nothing
was said to the effect Respondent would not negotiate
with the Union. On cross-examination, Hege admitted
that Edell had said that in a jurisdictional dispute the
Iron Workers could "take work away from them."
Although many other employees were identified as at-
tending the 12 October meeting, no party sought to have
them testify regarding Edell's remarks and assist the trier
of fact in resolving the credibility conflicts outlined in
the testimony set forth above. These conflicts must be re-
solved on the basis of the record as it presently stands,
considered as a whole, as well as on the demeanor of the
witnesses. Initially, it is to be observed that Guthrie and
Fletcher were employees of Respondent at the time of
the hearing, and therefore were giving testimony adverse
to their employer which could serve to put their jobs at
risk. These circumstances serve to enhance their credibil-
ity. See Georgia Rug Mill, 131 NLRB 1304, 1305 fn. 2
(1961). Considering this, and because both in demeanor
gave the appearance of attempting to testify honestly and
accurately, I would be inclined to credit them where
their testimony is mutually corroborative or uncontra-
dicted. However, each attributed remarks to Edell not
heard by the other with Guthrie stating Edell said Re-
spondent would not sit down and negotiate with the
Union and Fletcher saying that Edell said Respondent
would close and move if the Union was elected. Since
Fletcher did not support Guthrie on the issue, and also
because I find persuasive Bell's emphatic denial that
Edell said Respondent would not negotiate with the
Union, I find Edell did not make the remark claimed by
Guthrie. Accordingly, I find no threat not to negotiate as
such, and no violation of Section 8(a)(1) in this respect.
On the other hand, however, I find no specific denials
by Respondent's witnesses on the record of Fletcher's
testimony to the effect that if the Union were elected
Respondent would close, move, or change its name. Ac-
cordingly, Fletcher's believable testimony, enhanced by
Edell's admitted references to the closing of PPG, an-
other union contractor, is credited. On Fletcher's cred-
ited testimony, I find that Edell did, by his remarks,
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
threaten that Respondent 's operation would be closed in
the event of union organization in violation of Section
8(a)(1) of the Act.
All the witnesses agree that Edell alluded to the Iron
Workers and indicated that the election of the Union
would result in a loss of jobs to Respondent 's employees
by virtue of assignment of the metal frame work to the
Iron Workers. There was no evidence presented that
such a consequence would legally follow the Union's
election . Respondent contends , in effect , that the remarks
of Edell regarding the Iron Workers were an expression
of opinion of the possibility of jurisdictional disputes aris-
ing between the Iron Workers and Glaziers Unions.
Hege and Bell both testified that historically there have
been disputes between the two unions regarding the
metal work associated with glazing of the type done by
Respondent , and that such disputes were common
knowledge in the industry . As further evidence of such
disputes Respondent in its brief cited a number of Board
decisions in 8(b)(4)(D) cases involving jurisdictional dis-
putes between these two unions necessitating Board reso-
lution of the disputes under Section 10(k) of the Act.
I find Edell 's remarks constituted more than an expres-
sion of opinion that jurisdictional disputes might be en-
countered if the Glazers ' were elected . Rather, I view
his remarks as a direct threat of loss of jobs for his own
testimony implies that he viewed the splitting of the
work between the two unions with Iron Workers getting
the metal work in curtain wall construction as an inevita-
ble consequence of the Glazers' election . His remarks
therefore lead employees to believe that a loss of jobs
would follow election of the Glaziers . There was clearly
no showing that such a loss would be based on a juris-
dictional agreement between the two unions. Nor was
there any explanation that any division of the work
would have to follow Respondent 's voluntary assignment
of the metal work to the Iron Workers or that it be
awarded by the Board to Iron Workers following a 10(k)
hearing and after the Board had found reasonable cause
to believe there had been a violation of Section
8(b)(4)(D) of the Act. Obviously , awards flowing from a
10(k) hearing are not predictable, since the Board must
weigh many factors in making an award including the
employer 's prior assignment of the work . Such factors
vary from case to case . Accordingly , there are too many
imponderables left unexplained to the employees, and of
which they could not otherwise be expected to be aware,
which would preclude them from fairly understanding or
evaluating Edell's remarks as other than a direct threat,
particularly when considered in the context of the threat
of closure found to have been made by Edell in the same
"discussion ." Cf. Gino Moreno Enterprises , 287 NLRB
1329 (1988); Eagle Comptronics, 263 NLRB 515 (1982).
Respondent argues further that even if Edell's remarks
on jurisdictional disputes constitute a misrepresentation
of law it is not an objectionable or unlawful misrepresen-
tation , citing Tri- Cast, Inc., 274 NLRB 377 (1985). In
Tri-Cast the Board held that it would not overturn elec-
tion results based on an employer 's misrepresentation of
employee rights . Because I have found Edell's remarks
were a direct unlawful threat of loss of work rather than
a simple misrepresentation , I conclude Tri-Cast is inoppo-
site.
Edell's reference to the Iron Worker 's under all the
above-noted circumstances where the Glaziers were
seeking exclusive representation of the unit employees
clearly threatened the loss of jobs by employees flowing
from selection of the Union. I therefore find Edell's re-
marks constituted the threat of job loss alleged in the
complaint, and I find such remarks violated Section
8(a)(1) of the Act as alleged.
5. The alleged promises of dependent insurance
coverage
The complaint alleged that Repondent on or about 1
September at both its IBM jobsite in Atlanta and at its
Tampa jobsite , through Job Superintendents Leroy
Faulkner and A. J. Hege , promised its employees de-
pendent insurance coverage if they refrained from join-
ing or engaging in activities on behalf of the Union. Evi-
dence regarding such a promise by Leroy Faulkner was
never adduced . However , it is clear from the testimony
of Douglas Davis , Respondent 's comptroller, that on 12
August Respondent did grant employees the option for
dependent insurance coverage with Respondent paying
one-half the cost of such coverage . The announcement of
this option was made to all employees on 12 August 1
week following the filing of the petition in the represen-
tation case . However, Davis testified that George John-
son Sr ., Respondent 's president , decided that Respondent
would offer its employees dependent insurance coverage,
and directed Davis in early June to solicit quotes from
several insurance firms for employee dependent cover-
age. Davis did so completing the process in late July. At
that time , according to Davis , it was determined that
none of the quotes received were better than that offered
by the insurance carrier Respondent was then using. The
offer of dependent coverage was not immediately imple-
mented, and as a result of the filing of the representation
case petition Respondent found it necessary to check
with its counsel concerning implementation. As noted,
Respondent announced the dependent coverage offer to
all employees at all jobsites on 12 August . The only evi-
dence adduced at the hearing corroborating Respond-
ent's solicitation of quotes was a plan quote submitted to
Respondent by State Mutual Insurance Company dated
23 June . There was no corroboration of Davis ' claim re-
garding the time when the decision was made to offer
employees partially paid dependent coverage.
With respect to a promise of dependent insurance cov-
erage by Hege at Tampa, Guthrie testified that a few
days prior to the 14 October election in a meeting with
employees on the Tampa jobsite the employees were
wanting to know about group insurance for their fami-
lies, and Hege responded that "it was in the process,"
and "they were seeing what they could do about getting
group insurance ." It is not entirely clear that Fletcher at-
tended the meeting referred to by Guthrie , and he did
not otherwise attribute any specific remarks regarding
dependent insurance coverage to Hege . On the other
hand he did testify that at meeting of employees with
Edell within a couple of weeks of the election , "they,"
JAMCO
apparently referring to Edell, said they were going to
get dependent coverage for the employees. Elsewhere in
his testimony Fletcher testified that on one occasion
when Edell was on the job and bought dinner for the
men the question of dependent coverage was raised by
an employee and Edell responded, "Well, we're check-
ing on some things and that's one of them." Fletcher
could not establish the date of Edell's remark, but testi-
fied it was made at the time the Tampa employees were
not aware that a representation case petition was filed. It
seems reasonable to conclude, therefore, that the Tampa
employees were also not aware'of any union activity ef-
fecting them at the time since it is clear that the unit the
Union had sought in the representation case had not in-
cluded employees outside those employed by Respond-
ent in the Atlanta area.4
Edell did not testify regarding any statements made
concerning dependent insurance coverage. In his testimo-
ny, Hege acknowledged that the question of dependent
insurance coverage came up many times "even before
the thing came up on a vote." Hege further testified "we
gave them the answer, `It's being worked on'." He was
vague about exactly when he first learned that dependent
coverage was implemented and said generally that it was
before the election and after "notification" of the elec-
tion.
The absence of any degree of consensus concerning
the timing of alleged promises of dependent coverage
makes it exceedingly difficult to determine with any ac-
curacy when Hege and Edell referred to the Respondent
"working on" the insurance question. It seems reasonable
to conclude, and I so conclude, that neither Hege nor
Edell would have said Respondent was "working" on
the matter after the point in time on 12 August when Re-
spondent announced the offer of dependent coverage by
distribution of a letter to employees with their pay-
checks. This conclusion appears consistent with
Fletcher's testimony that the employees did not know at
the time of Edell's remarks whether a representation pe-
tition had been filed. In light of this conclusion, I find
the testimony of Guthrie and Fletcher (and that of Hege
and Edell for that matter) unreliable to the extent it indi-
cates that Hege and Edell told employees after 12
August that Respondent was "working" on dependent
insurance coverage. It is likewise unreliable, I find, in es-
tablishing that Hege and Edell made such remarks be-
tween the time of Respondent's acquiring knowledge of
the union campaign and the time on 12 August when the
offer of dependent coverage was made.5 Accordingly, I
" Although the Union did not seek initially to include the Tampa em-
ployees in the unit it appears that based on organizer Lambert's testimo-
ny in the representation case Lambert visited the Tampa jobsite on 7
August
s The record does not reveal exactly when Respondent becamde aware
of the union campaign although it apparently was around the time of
Lambert's discharge in late July Further, it does not show exactly when
the union activity started, although it suggests it was contemporaneous
with Lambert's employment on 24 July There was thus a period of 3
weeks at least between the time when both Guthrie and Fletcher were
employed on 1 July and the advent of union activity when Edell and
Hege could have made the remarks about "working" on the dependent
insurance coverage Such remarks during this would be entirely consist-
ent with Davis's testimony that during this period Respondent was seek-
ing quotes on the insurance coverage
903
am unable to conclude that either Hege or Edell made
an unlawful promise of benefit to employees at the
Tampa jobsite in order to interfere with employee union
activity. Moreover, since it has not been established that
the "promises" were made following the filing of the
representation petition and within the critical objections
period prior to the election, I cannot find that such al-
leged "promises" constituted objectionable conduct
The fact remains, however, that Respondent did grant
a benefit in the form of partially paid dependent insur-
ance coverage to employees after it was aware of the
union activity and the filing of the petition. However,
Respondent's actual grant of dependent insurance cover-
age was not alleged in the complaint as a violation, and
while the circumstances of the announcement and grant
of its benefit was set forth on the record no amendment
of the complaint was urged by the General Counsel.
Moreover, in the Charging Party's closing argument Re-
spondent's grant of this benefit was only alluded to as
"suspicious" and no illegality finding urged. The General
Counsel's brief also does not attack the granting of the
benefit, and Respondent's brief does not argue the issue
of the legality of the grant itself. Under these circum-
stances, I find it unnecessary to make any specific con-
clusion regarding the legality of Respondent's grant of
partially paid dependent insurance coverage to employ-
ees.
C. The Layoffs
1. The evidence
It is undisputed that Respondent on 4 September at its
Concourse 5 jobsite in the Atlanta area terminated or
laid off four employees, Roman Modest, Mitchell Kerr,
Robert Harris, and Charles Russell. The complaint al-
leges that these four were discharged because of their
membership in, and activities on behalf of the Union. Re-
spondent's defense is that the layoffs or terminations
were based on economic considerations, and that the se-
lections for layoff were based strictly on seniority.
Respondent's records showed that Modest and Harris
were hired on 3 August Kerr was hired on 31 July,
while Russell was hired on 25 August by Job Superin-
tendent Maynard at Kerr's request, Kerr explaining that
he and Harris needed a "riding partner" for their com-
mute to the job from their north Georgia homes. Mo-
dest's union background has already been noted. Further,
Modest testified that following employment by Respond-
ent he participated in the union campaign , and gave testi-
mony on behalf of the Union at the 21 August represen-
tation case hearing . Kerr was also active for the Union
and testified he had been sent by the Union to seek a job
with Respondent. In addition, Kerr solicited and ob-
tained a union authorization card from Russell dated 27
August.
Harris had been a union member prior to his employ-
ment by Respondent, and following such employment,
according to Harris' testimony, which was uncontradict-
ed in this regard, he was seen by Maynard posting union
literature on the jobsite. Further, like Kerr, Harris had
been sent by the Union to seek employment with Re-
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent with the instruction that he should be a "role
model" employee. He conceded in his testimony that his
pay was supplemented by the Union. Finally, Harris also
testified for the Union at the representation case hearing.
Kerr's testimony was that on 4 September he was
working on the job with Harris when Maynard and
Randy Dennis, project manager for Respondent on the
Concourse 5 job, the construction of a 34-story building,
came up to the floor on which Kerr and Harris were
working. Maynard came over and told them that he was
going to have to lay them off because "they" found out
that the union hall sent Kerr and Harris down there to
get a job. Maynard further stated that the matter was out
of his hands. Harris protested loudly but Maynard re-
peated that it was out of his hands. Harris' testimony is
generally consistent with that of Kerr. Harris added,
however, that he had earlier heard "hints" from May-
nard that there would be a layoff. 6
Kerr further testified that immediately after being ad-
vised of the layoff by Maynard he walked over to the
gang box with Maynard to empty his too] belt. The two
discussed the matter further, and Kerr asked Maynard
how long he figured they would be laid off Maynard re-
plied that he would try to get them back to work as
soon as he could, but ^ that it would probably be after
"this Union business" was over
Modest's testimony concerning the layoff was simply
that Maynard separately told him he had been chosen to
be laid off and said the reason was for lack of work. He
further testified that he had learned form another con-
tractor's employee the day before that Respondent
would be laying off employees. What Russell was told
regarding his layoff was not revealed since Russell did
not testify. However, Russell, Harris, Modest, and Kerr
all received separation notices showing "Lack of Work"
as the reason for separation.
It is undisputed that Respondent had a substantial
amount of work left to perform on the Concourse 5 job,
and that it proceeded to perform work on the job with
additional employees transferred from other jobsites. It is
likewise undisputed that Respondent had found no fault
with the work of the four laid off employees. Indeed,
Maynard admitted that Kerr and Harris were probably
above average in their work compared with employees
retained. On the other hand, it is clear and undisputed
that the four alleged discriminatees were in fact the least
senior employees on Respondent's work force in the At-
lanta area at the time of the layoff Respondent concedes,
however, that it had not followed strict seniority in past
layoffs.
Under the Board's decision in Wright Line, 251 NLRB
1083 (1980), 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), the General Counsel is required in
attempting to establish an 8(a)(3) and (1) violation to
"make a prima facie showing sufficient to support the in-
ference that protected conduct was a motivating factor"
in the employer's decision [to terminate an employee].
Once this is established, the burden will shift to the em-
ployer to demonstrate that the same action would have
taken place even in the absence of protected conduct.
Wright Line, supra, at 1089. By showing that the four
employees laid off had been engaged in union activitiy,
that Respondent was aware of that involvement as re-
flected in Maynard's alleged comment to Kerr and
Harris that Respondent had learned they had been sent
by the Union, ,that Respondent harbored union animus as
revealed in the 8(a)(1) violations found, that Maynard
stated the layoff selections were based on union concerns
(at least with respect to Kerr and Harris and, inferential-
ly, Modest and Russell since it was necessary to lay them
off to reach Kerr's seniority level), that Respondent had
substantial work left to be done on the Concourse 5 job
at the time of the layoffs, and that Respondent had not
followed strict seniority in past layoffs, the General
Counsel, I conclude, has established the required prima
facie case that the layoff selections were based on union
considerations in violation of Section 8(a)(3) and (1) of
,the Act. The burden therefore shifts to Respondent to
demonstrate or establish that the layoffs would have
taken place, and the layoff selections would have been
the same, even in the absence of union activity generally
or the specific activities of those selected for layoff.
The Respondent justifies the layoff based on economic
reasons as related in the testimony of Comptroller Davis.
Thus, Davis testified that in early September work was
winding down on Respondent's IBM Tower job, and
during a regular project manager 's meeting on 1 Septem-
ber the IBM Tower Job Superintendent Tony Faulkner
advised Johnson, that he could no longer keep five of his
men busy. It was, according to Davis, common practice
to shift employees from one location to another. Thus,
other job superintendents were queried whether they
could use extra men. None could. Accordingly, Johnson
made the decision to lay off five men, and while Re-
spondent concedes that it had not followed strict seniori-
ty in past layoffs, Johnson after consulting with his coun-
sel decided the layoff should follow strict seniority.
Davis by examining Respondent's records prepared a list
of Respondent's least senior employees on 3 September.
Johnson chose the four alleged discriminatees and one
other individual. The separations were thereafter effected
on 4 September although it was discovered that the fifth
individual set for layoff, M. A. Johnson who worked on
the IBM job and had a seniority date of 12 August had
already quit.
6 Maynard had told employees earlier in the morning that a layoff was
possible However, Maynard testified he did not know at that time which
employees would be laid off Davis explained in his testimony that senior-
ity dates had to be pulled from Respondent's computer and no one previ-
ously knew who were the least senior employees in the overall unit in-
cluding several jobsites Although Respondent may not have known
prior to the computer run precisely all the least senior employees, I am
persuaded Respondent and George Johnson Sr, in particular, who close-
ly supervised hiring in August, were generally aware of who had been
most recently hired
2. Arguments and conclusions
Davis' testimony regarding the necessity for a layoff
was not contradicted. Further, a compilation of hours
worked by Respondent's Atlanta employees prepared by
Davis confirms that the total employee hours expended
on the IBM job began winding down in late June, and
while the total hours varied somewhat from week to
week, a substantial drop in excess of 200 man-hours took
JAMCO
place between the week ending 4 and 11 September.
Thereafter, the total hours continued to decrease until
the job was completely finished in late December. There
was a similar decrease in total hours in Respondent's
other worksites over the same period except for the Con-
course 5 site, which showed only a 17-man-hour drop
between 4 and 11 September and an increase of from 120
to over 200 man-hours in the following weeks. Based on
Davis' uncontradicted and otherwise credible testimony
and the unrebutted figures regarding the overall decrease
in hours on all jobs, I must conclude the evidence is suf-
ficient to establish that the decision to implement a layoff
was warranted. Accordingly, I find that the decision to
implement a layoff was not unlawful.
There remains the issue of whether the selections for
layoff were discriminatorily motivated in violation of
Section 8(a)(3) and (1) of the Act as the General Counsel
and Charging Party argue. The resolution of at least one
aspect of this issue rests on whether Kerr and Harris are
credited over Maynard and Dennis. Having evaluated
the demeanor and testimony of these four witnesses con-
sidered in the context of the record as a whole I credit
the former two over the latter Both Kerr and Harris im-
pressed me as sincere and candid witnesses making an
honest atttempt to factually and accurately relate what
had transpired at the time of their layoffs. Moreover,
while Maynard and Dennis denied that Maynard told
either Kerr or Harris that Respondent had found that the
Union had sent them down to get the jobs, both May-
nard and Dennis failed to contradict Kerr's testimony at
the gang box that Maynard said that their recall from
layoff would probably be after "this Union business" was
over. This undented remark clearly reveals that union
considerations were a factor in the layoff selections and
tends to support the testimony of Kerr and Harris re-
garding what they were told was the basis for their
layoff selection. I also note in this regard that while
Dennis claimed in his testimony that it was Harris who
made the statement to Maynard and Dennis that he was
being laid off because of their relationship to the Union,
Dennis made no claim that either he or Maynard specifi-
cally disavowed Harris' assertion.
- Crediting Kerr and Harris, and noting Respondent's
concession that it had not strictly followed seniority in
prior layoffs, I must conclude that Respondent has failed
to demonstrate in the face of the General Counsel's
prima facie case that Respondent would have selected
the alleged discriminatees for layoff even in the absence
of their union involvement.' I find therefore that Re-
While there was no evidence that Respondent was specifically aware
of Russell's union sympathies or that he had signed a union authorization
card, it could reasonably conclude that he was a likely union supporter
by virtue of his employment at the request of Kerr, a known union
"plant," and his riding to work with Kerr and Harris In any event, even
if Respondent was not aware of Russell's union inclinations, he was nev-
ertheless the object of unlawful discrimination It is well settled that an
employer's discharge of uncommitted or neutral employees during a
union campaign in order to "cover" or facilitate discriminatory conduct
against "targeted" union employees is violative of Sec 8(a)(1) and (3) of
the Act See Dawson Carbide Industries, 273 NLRB 382, 389 (1984)
905
spondent violated Section 8(a)(3) and (1) of the Act as
alleged.8
Even if I were to credit the testimony of Maynard and
Dennis that Kerr and Harris were not told that they
were selected for layoff because Respondent found they
had been sent to the job by the Union, I would still find
their layoffs unlawful. This is because Respondent in
using seniority as the sole criteria for the layoffs here
was not being consistent with its past practice in making
layoff selections. In the past seniority had only been one
of a number of factors considered in selecting individuals
for layoffs. Moreover, the change to a strict seniorty
system in the case sub judice was, based on Davis' testi-
mony, specifically responsive to the union campaign
among Respondent's employees. Thus, while Respondent
has shown that it's past practice was also to shift em-
ployees between jobsites to avoid layoffs, there was no
evidence submitted that it would have specifically select-
ed the four discriminatees for layoff here if seniority had
not been the sole criteria utilized for their layoff selec-
tion. Respondent asserts that seniority was selected as
the fairest and most objective standard to use in the lay-
offs here, and less likely to raise objections from the
Union than the more subjective standards previously
used. Thus, Respondent argues it was compelled to
select employees for layoff by seniority. It also argues
that the Board's decision in Jones Ceilings, Inc., 263
NLRB 469 (1982), supports its position here. In Jones
Ceilings the employer in the face of a union election peti-
tion selected one of its three truckdrivers for layoff on
the basis of seniority after consulting with its attorney.
The Board found the layoff to be justified and the basis
for layoff selection was not pretextual or unlawful In
reaching this conclusion the Board found other evidence
in the case insufficient to show a connection between the
layoff selection and the union activity. Jones Ceilings and
other cases cited in Respondent's brief,9 in which senior-
ity was found to be a nondiscriminatory basis for layoff,
are distinguishable from the instant case for unlike here
the cited cases do not appear to have involved a clear
departure from prior practice.
Accordingly, it must be concluded, and I so conclude,
that the layoffs were a direct consequence of a change in
the basis for layoff selection, which change was a direct
response to union activity. The four were, for this fur-
ther reason and in the absence of evidence that they
would otherwise have been selected for layoff, the ob-
jects of discrimination which tended to discourage mem-
bership in a labor organization in violation of Section
8(a)(3) and (1) of the Act.
8 The fact that Respondent attempted to recall the discriminatees in
December, and did recall Kerr, does not detract from this conclusion
Since the complaint had already issued at the time of the claimed recall
efforts, it is not clear that such efforts were not responsive only to the
complaint rather than demonstrating the absence of any discrimination in
the initial layoffs
9 Daswson Carbide Industries, supra, A 3 Schmidt Co, 269 NLRB 579
(1984), Femco Machine Co, 238 NLRB 816 (1978), Triangle Sheet Metal
Works, 238 NLRB 517 (1978), Alberts, Inc, 213 NLRB 686 (1974)
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. THE OBJECTIONS TO THE ELECTIONS
Objection 1
The Union's Objection 1 to the election complaint of
the discriminatory layoffs of Harris, Kerr, Modest, and
Russell on 4 September. Having found above that such
layoffs were in fact discriminatory, I find that this objec-
tion has merit and shall recommend that it be sustained.
Objection 3
In this objection the Union asserted that Respondent
granted additional insurance coverage to employees
during the pendency of the representation petition. As al-
ready noted, the complaint does not allege an unlawful
grant of a benefit in the form of additional insurance
coverage, only an unlawful promise of such. The evi-
dence regarding Respondent's grant to employees the
option for dependent insurance coverage has, however,
already been discussed. Based on Davis' testimony, un-
contradicted in this regard and which I find credible, it
is clear that Respondent was in fact "working on" de-
pendent insurance coverage for employees prior to the
advent of the union campaign. It is clear and well settled
that an employer faced with a union campaign among its
employees must proceed in the same manner as it would
have done had the Union not been conducting its cam-
paign . See, e .g., Russell Stover Candies, 221 NLRB 441
(1975); Gerbes Super Market, 213 NLRB 803, 810 (1974).
Since I find credible Davis' testimony also that Respond-
ent had already decided to offer employees dependent
coverage prior to the union campaign and that such offer
was delayed only because of the search for the lowest
possible rates, I conclude that Respondent in offering de-
pendent insurance coverage to employees on 12 August
was simply effectuating a decision already made. I there-
fore find the offer was not designed to interfere with the
election and did not have that effect. I shall recommend
that this objection be overruled.
Objection 6
The Union's 'Objection 6 asserts that Respondent
promised permanent employment to employees if they
would reject the Union as their exclusive bargaining rep-
resentative. This claim is not coextensive with any alle-
gation of the complaint, and no independent evidence
was adduced by the Charging Party to substantiate it.
Accordingly, no merit is found to this objection and it
will be recommended that it be overruled.
Objection 7
Objection 7 states that Respondent threatened to start
another company to operate nonunion if the employees
voted for representation. This contention appears to be
coextensive with the complaint allegation that Respond-
ent would close its "plant" if the employees engaged in
Union activities, and is supported by the credited testi-
mony of Fletcher regarding statements of Edell already
discussed above to the effect Respondent would close,
move, or change its name if employees organized. I
found such remark to constitute an unlawful threat viola-
tive of Section 8(a)(1). Conduct that violates Section
8(a)(1) is a fortiori conduct which interferes with an
election. Dal-Tex Optical Co., 137 NLRB 1782, 1786
(1962). I therefore find merit to this objection and shall
recommend that it be sustained.
Objection 8
The Union contends in this objection that Respondent
threatened employees with discharge and loss of jobs if
the Union were designated as the collective-bargaining
representative. The objection appears to be coextensive
with the complaint allegation concerning remarks attrib-
uted to Edell by Guthrie and Fletcher previously dis-
cussed. I found such remarks by Edell alluding to loss of
work to the Iron Workers as a result of organization by
the Union constituted an unlawful threat violative of
Section 8(a)(1). I likewise find it to constitute objection-
able conduct occurring within the critical period. Ac-
cordingly, merit is found to this objection and I shall
recommend that it be sustained.
Objection 9
The Union's Objection 9 is a "catch all" objection re-
ferring only to "other acts and conduct" of the Respond-
ent and outlines no specific actions on the Respondent's
part. No independent evidence was adduced in support
of this objection concurring within the critical period be-
tween the filing of the petition and the holding of the
election. Accordingly, no merit is found to this objection
and it will be recommended that it be overruled.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By coercively interrogating an employee regarding
his union membership or activities; by threatenting to
close, move, or change its name if its employees selected
the Union to represent them, and by threatening its em-
ployees with the loss of jobs if they selected the Union
to represent them, Respondent engaged in , and is engag-
ing in , unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
4. By discriminatorily laying off Roman Modest,
Mitchell Kerr, Charles Russell , and Robert Harris on 4
,September 1987, because of their union activities and in-
volvement, Respondent engaged in, and is engaging in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
5. The unfair labor practices set forth in paragraphs 3
and 4 above affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. The Union's Objections 1, 7, and 8, have merit and
must be sustained, while Objections 3, 6, and 9 are with-
out merit and must be overruled.
7. Except as found in paragraphs 3 and 4 above, the
General Counsel has failed to establish by a preponder-
ance of evidence that Respondent violated the Act in
any other manner alleged in the complaint.
JAMCO 907
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the purposes of the Act.
Having further found that Respondent discriminatorily
laid off employees Roman Modest, Mitchell Kerr,
Charles Russell , and Robert Harris because of their
union activities, It is recommend that Respondent be or-
dered to reinstate them to the positions they held prior
to their layoffs or, if those positions no longer exist, to
substantially equivalent positions, and make them whole
for any loss of earnings and benefits suffered by them as
a result of their discriminatory layoffs. Backpay is to be
computed in the manner set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).10
Any dispute as to when any of the discriminatees re-
turned to work or whether Respondent made a valid
offer to return them to work can best be resolved at the
compliance stage of this case.
[Recommended Order omitted from publication.]
10 Under New Horizons, interest is computed at the "short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26USC §6621