Jordan Co.

National Labor Relations Board - Board Decisions

Aug 13, 1980

251 N.L.R.B. 143 (N.L.R.B. 1980)

JORDAN COMPANIES 143
The Jordan Companies and United Furniture Work-
ers of America, Local 282, AFL-CIO. Cases
26-CA-7755-1 and 26-CA-7755-2
August 13, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On April 21, 1980, Administrative Law Judge
Irwin Kaplan issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in opposition to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.l
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
In fn. 5 of his Decision, the Administrative Law Judge seems to
imply that some employees had been discharged from department 420
during the time period between the March plant closing until early May.
In fact, while some employees were discharged during that time period,
they were from departments other than department 420. We hereby cor-
rect the footnote to accord with the record evidence
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge: This case
was heard in Memphis, Tennessee, on January 21, and
22, 1980. The underlying charges in Cases 26-CA-7755-1
and 26-CA-7755-2 were filed on April 13, 1979, by the
United Furniture Workers of America, Local 282, AFL-
CIO (herein the Union), principally alleging that The
Jordan Companies (herein Respondent) discharged Katie
Newson and Coreen Woods because of their activities on
behalf of the Union in violation of Section 8(a)(3) and (1)
of the National Labor Relations Act, as amended (herein
the Act). The aforenoted charges gave rise to an order
consolidating cases, complaint, and notice of hearing
which issued on August 9, 1979, as amended on August
15, 1979. Respondent filed an answer conceding, inter
alia, jurisdictional facts but denying all allegations that it
committed any unfair labor practices.
251 NLRB No. 21
Upon the entire record,' including my observation of
the demeanor of the witnesses, and after careful consid-
eration of the post-trial briefs, I find as follows:
FINDINGS OF FACT
I. JURISDICTION
The Respondent, The Jordan Companies, a corpora-
tion with an office and place of business in Memphis,
Tennessee, herein called Respondent's facility, has been
engaged in the business of manufacturing aluminum win-
dows and doors primarily used in the construction of
new housing. Respondent, annually, in connection with
the aforenoted business operations, sold and shipped
from its Memphis, Tennessee, facility goods and materi-
als valued in excess of $50,000 directly to points outside
the State of Tennessee. The Respondent admits, and I
find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find, that United Furni-
ture Workers of America, Local 282, AFL-CIO (herein
the Union), is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Setting
The Jordan Companies maintain an aluminum division
which produces, inter alia, storm windows, prime win-
dows, storm doors, and sliding glass doors primarily used
in the construction of new housing, mostly in the mid-
South area.2 John McDougal, vice president of manufac-
turing, aluminum division, testified that because of a
"hard [cold] winter" and an "unusually wet spring" in
19793 the number of housing starts (new residential con-
struction), on which the division was largely dependent,
fell off drastically. According to McDougal, this resulted
in the fewest sales and largest inventory in the history of
the aluminum division. McDougal testified that, in order
to reduce the huge surplus (inventory) and to maintain
the size of the work force, he closed the plant during the
first week in March and required everyone to take a 1-
week vacation at that time. 4 McDougal asserted this was
designed to give the Company some breathing room to
enable it to ship merchandise from previous orders there-
I The General Counsel's unopposed motion to correct the
transcript.dated March 14. 1980, is granted and received in evidence as
G C. Exh. 9.
2 The aluminum division is also referred to as department 420 which at
all times material herein was comprised of the following subdepartments
prime window M-10, prime window-21. storm window. patio door.
storm door, and screen. (See G.C Exh 2 ) The alleged discriminatees
were employed in the screen department at the time they were dis-
charged in April 1979. Up until that point in time, the screen department
fabricated screens principally for the prime window departments but also
furnished and rolled screens for other departments within department
420. By the time of the instant hearing. the screen department as a sepa-
rate department was no longer operational: each department fabricated
and rolled its own screens
3 All dates hereinafter refer to 1979 unless otherwise noted
4 Employees who have worked for the Company for a full year are
entitled to 2 weeks' vacation. Traditionally. one of these weeks is taken
between Christmas and New Year's when its plant i closed for inventory
and maintenance The other week is scheduled for the summer.
JORDAN COMPANIES l4
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by reducing the size of the inventory without at the same
time adding to it newly produced goods. On the other
hand he was hoping for new orders for merchandise to
go directly to the customer rather than to the stockroom
or warehouse.
According to McDougal the bad weather did not
abate significantly and the anticipated orders did not
come so that some reduction in work force was neces-
sary. Thus, soon after the employees returned from vaca-
tion in March he elected not to immediately replace
anyone who resigned or was terminated. 5 McDougal
also ascertained on April 2 that he had a surplus of 7,500
screens and concluded that it would be more efficient to
phase out the screen department "as quickly as feasible"
and have each of the departments within the division
make their own screens as needed. In addition, he decid-
ed to lay off two of the four employees in the screen de-
partment. On April 4, he advised Katie Newson and
Coreen Woods, the two junior employees in the screen
department, that they were terminated because there was
not enough work for them to do.6
Newson and Woods began working for Respondent in
April and October 1977, respectively, and virtually their
entire employment consisted of rolling screens 7 in the
screen department under the immediate supervision of
Harold Bright. They had long discussed with each other
the advantages of having a union. These conversations
which occurred with greater frequency around January
1979 were generally held at lunchtime and not in the
presence of any supervisors
In late March, all four screen department employees
met with McDougal to discuss what they believed were
inequities in the bonus system and for some clarification
of the system itself. Woods complained that the screen
department employees were getting a 12-percent bonus
whereas employees employed in other departments, for
which the screen department rolled screens, were getting
a 20-percent bonus. Rosie Newson asked McDougal why
she, Woods, and Katie Newson received $15 in bonus
money and Beverly Kelley only received $9. According
to Katie Newson and Woods, McDougal promised to
show them some papers explaining the bonus system, but
this was not done. Woods testified that, some time later
that day, the four screen department employees discussed
further their problems with regard to working conditions
and the need for a union. Woods also testified that ap-
proximately 1 week later, on or about April 2, Supervi-
sor Bright had an argument with Katie Newson (in
Woods' presence) about a work-related problem. Ac-
cording to Woods, she told Katie Newson that it was
S The record discloses that no new employees were hired in depart-
ment 420 until May 9 and several employees had resigned or were dis-
charged during this time frame. (See G.C. Exh. 3(g-i).)
6 The two senior employees in the department were Roie VNewson and
Beverly Kelley. Respondent filed separation notices dated April 4 with the
Tennessee Department of Employment Security stating that Woods and
Newson were discharged because of "[rieduction in force. junior
employee[s] with regard to seniority in screen Department." (See G.C
Exhs. 6 and 8.)
7 Rolling screens was essentially a simple operation which took ap-
proximately 3 weeks' training to become proficient. It involved rolling
wire into a screen perimeter frame.
time to get a union and to talk to her (Newson's) hus-
band about getting union cards.8
On April 3, Newson arrived at Respondent's facility at
or about 6:40 a.m. with a number of union authorization
cards which she handed out to employees during the
course of the day. She got back two signed cards at the
morning break, 9 another at lunch, and approximately
four other cards during the afternoon break. Newson's
workday ended at 3:30 p.m. and she continued her orga-
nizing efforts outside the plant where she handed out ap-
proximately five additional union cards. At about the
same time Newson gave Woods some cards to distribute
which the latter gave to employees in her carpool on her
way home after work.
On April 4, minutes before the end of the workday,
McDougal had Newson and Woods summoned to his
office where he told them that he was laying them off
because of a shortage of work in the screen department.
Woods tried to dissuade McDougal from taking this
action and asked, inter alia, why he did not lay off less
senior employees who were first hired earlier in the year.
McDougal explained that the Company did not need
screen rollers. ° Woods asked McDougal whether he
would recall them, to which he replied that he would
consider it. However, he told them that they would have
to reapply. According to McDougal and Supervisor
Bright they did not know of any union activity prior to
the discharge of Newson and Woods.
By letter dated April 13 (Resp. Exh. 4), the Regional
Director for Region 26 notified Respondent that the
Union had filed a representation petition in Case 26-RC-
5986 which was received on April 16. The Union at
some unspecified date was eventually duly certified as
the collective-bargaining representative for Respondent's
employees and at the time of the hearing the parties
were engaged in ongoing contract negotiations.
Woods and Newson reapplied on May 11 and were
told by McDougal that they would be considered for
employment as openings occurred.
McDougal testified that he had two openings for
screen rollers in September: one on the day shift, the
other on the night shift, and contacted Newson and
Woods for these jobs. While neither one could take the
night-shift job, they were both reemployed on September
4. McDougal placed Newson in department 10 rolling
screens and had Woods do some glazing work temporar-
ily until he was able to find screen rolling work for her
: Katie NVeson's account is somewhat at variance with the version pro-
vided bh Woods According to Newson she asked Wood on April 2
whether she was "still willing" to help her organize the plant and the
latter responded affirmatively. Further it. also appears from Newson's testi-
mony that her argument with Bright occurred on the following day,
April 3. In any event I do not deem these differences material as the
record otherwise clearly establishes that both Woods and Newson were
engaged in substantial union activity on April 3.
ooads testified that she signed and turned over to Newson a union
card during the morning break (G.C Exh. 5) Newson also signed a union
card that day (G.C Exh 7)
"' There is no evidence tending to show that the Company retained
any employee who rolled screens with less seniority than Newson or
Woods.
II It is oted that on their job applications in answer to "kind of work
desired" Newson and Woods wrote "Roll Screen[s]" and "Screen[s]" re-
spectiicely
JORDAN COMPANIES 145
in the storm window department. Newson and Woods
were again laid off in January 1980 and were not work-
ing for the Company at the time of the hearing. 12
Discussion and Conclusions
The record discloses that Newson and Woods had
long discussed with each other the need to have a union.
They had these discussions with greater frequency in
early 1979. There is no contention that these discussions,
which were generally held at lunchtime, were in the
presence of any supervisor or were otherwise known by
management. In late March, Woods, Katie Newson, the
two senior employees in the screen department, Rosie
Newson, and Kelley met with McDougal and discussed
what they believed to be inequities in the bonus system.
According to Woods and Katie Newson, all four em-
ployees were dissatisfied with McDougal's explanations
and later that day they collectively discussed the need
for a union. This took concrete form on April 2 when
Woods and Katie Newson decided that the latter would
ask her husband, a union official, for union cards.
Newson distributed and got back a number of signed
union cards at work on April 3 including one such card
from Woods. Woods also gave out union cards that day
to employees in her carpool on her way home after
work. There is no testimony tending to show that any
supervisor witnessed union activities on April 3 or for
that matter union activities on the following day when
Newson and Woods were discharged. In this connection
the record discloses that Newson and Woods took pains
to keep their activities covert. Thus, Newson conceded
on cross-examination that she and Woods did everything
they could to conceal their activities from supervision.
They did not wear union buttons or other indicia reflect-
ing union support and did not hand out union literature.
The record reveals that of approximately 74 employ-
ees only Newson and Woods were discharged. The Gen-
eral Counsel, citing C.S.C Oil Company, a Division of
Cook United Inc., d/b/a Ontario Gasoline & Car Wash, 13
contends that the Board's small-plant doctrine under
Wiese Plow'4 is applicable to the case at bar and accord-
ingly company knowledge of union activity should be in-
ferred.
While the failure to establish direct company knowl-
edge of any union activity, by itself, may not foreclose
drawing an inference thereof, as contended by the Gen-
eral Counsel, I find herein on the basis of the record as a
whole that such an inference is not warranted.' 5 I find
most persuasive an absence of any evidence tending to
show even the slightest union animus. This takes on
greater significance given the substantial time frame in-
volved from on or about April 3, 1979, when union
cards were first distributed to January 1980, the date of
12 The record does not disclose whether Newson and W'oods sere the
only employees laid off in January 1980. In any event, the General Coun-
sel does not contend that this second layoff was predicated on unlawful
considerations and it is not alleged as a separate icolation
i3 228 NLRB 950, fn 2 (1977)
'' Wiese Plow. Welding Co., Inc., 123 NLRB 616 (1959)
i5 It is noted that in Ontario Gasolinc & Car Wash, supra, relied on by
the General Counsel, he 8(a)13) and (1) allegations Aere dismised See
also Steel-Tex Manufacturing Corp, 206 NLRH 4hl (1973), Len .4rnAm
Ford. 202 NLRB 816, 820. 821 (1973)
the instant hearing, at which time Respondent was en-
gaged in ongoing contract negotiations with the Union
which had won the Board-conducted election.
Moreover, the General Counsel has failed to establish
by a preponderance of the credible evidence that Re-
spondent's reason for discharging Woods and Newson
for lack of work on April 4 was pretextual. It is undis-
puted that approximately I month earlier Respondent
closed its plant for I week and compelled its employees
to take an uncustomary vacation at that time of the year.
It is also undisputed that this action predated any union
activity and was caused by poor weather conditions and
a concomitant slump in business. When the weather
failed to improve significantly after the employees re-
turned to work, Respondent determined that a reduction
in the size of the work force was necessary. Thus it did
not hire any new employees for the next few months.
Further, Vice President McDougal credibly testified that
as he had ascertained on April 2 that the Company had a
huge surplus of screens he decided to phase out the
screen department as a separate department and have the
other departments produce their own screens as needed.
In connection therewith he concluded that the screen de-
partment was most expendable in terms of a cutback in
personnel. With this backdrop on April 4 he terminated
Woods and Newson, the two most junior employees in
the screen department.
While the General Counsel in his brief points out that
Respondent hired new employees on May 9 and 10
(G.C. Exh. 3(g)), it is noted that McDougal told Woods
and Newson that they would have to reapply to be con-
sidered for future employment and this they did not do
until May 11. 7 It is also noted that Woods and Newson
in their reapplications expressed continued interest to
work at rolling screens but that such openings did not
occur until September at which time they were contact-
ed by McDougal and reemployed. Insofar as other em-
ployees were hired in department 420 prior to Septem-
ber, there is no record evidence tending to show that
any of these employees were engaged in rolling screens.
In short, the failure to establish company knowledge
of union activity antedating the discharges of Woods and
Newson, the fact that Woods and Newson were the
junior employees in terms of seniority in the screen de-
partment, the failure to establish that Respondent's
reason for terminating these employees was pretextual,
the lack of any union animus covering an extended
period with contemporaneous union activity including an
election, and the fact that Respondent reemployed these
employees all tend to persuade me that Respondent's acts
and conduct vis-a-vis Woods and Newson were not predi-
cated on unlawful considerations. While the timing of
the discharges raises some suspicions, I find on the basis
of the entire record that the General Counsel has failed
to meet his burden by a preponderance of the credible
evidence of establishing that Woods and Newson were
le Cf Long Is/and .4irport Limousin Srvie Corp., 191 NLRB 94
(1971)
1 The record discloses that the last layoff Respondent's emploee, ex-
perienced ssas sometime during the years 1974 75 and the emploses laid
off at that time were required Iio reapply hefore the, were reemplosed
JORDAN COMPANIES 45
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged in violation of Section 8(a)(3) and (1) of the
Act. 8 Accordingly I shall recommend that these allega-
tions be dismissed in their entirety.
CONCLUSIONS OF LAW
1. The Respondent, The Jordan Companies, is an em-
ployer within the meaning of Section 2(2), (6), and (7) of
the Act.
2. United Furniture Workers of America, Local 282,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
"' See Carrom Division. Affilared Hospital Products, Inc., 245 NL RB
No. 89. fn. 1 (1979} K & E Upholstery Co.. Inc, 247 NlRB No 96
(1980).
3. The General Counsel has not proved by a prepon-
derance of the credible evidence that Respondent has
violated Section 8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in these proceedings, and pur-
suant to the provisions of Section 10(c) of the Act, I
hereby issue the following recommended.
ORDER ' 9
The amended consolidated complaint is hereby dis-
missed in its entirety.
19 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 recommended 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 thereto
shall be deemed waived for all purposes.