Omnicom Corp.

National Labor Relations Board - Board Decisions

Jun 17, 1974

211 N.L.R.B. 635 (N.L.R.B. 1974)

FILMAKERS' LABS, INC.
Filmakers' Labs, Inc., a wholly -owned subsidiary of
Omnicom Corporation and James J. Nugent. Case
7-CA-10737
June 17, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On March 28, 1974, Administrative Law Judge
John P. von Rohr issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
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 brief
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 complaint herein be, and it
hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon a
charge filed on November 16, 1973, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 7, issued a complaint on January 7,
1974, against Filmakers' Labs, Inc., a wholly-owned
subsidiary of Omnicom Corporation, herein called the
Respondent or the Company, alleging that it had engaged
in certain unfair labor practices violative of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended,
herein called the Act. The Respondent filed an answer
denying the allegations of unlawful conduct alleged in the
complaint.
Pursuant to notice, a hearing was held before me in
Mason, Michigan, on February 28, 1974. Waiving the filing
of briefs, the General Counsel and the Respondent
presented oral argument at the close of the hearing.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
635
The Respondent is a Michigan corporation with its
principal office and place of business located in Lansing,
Michigan, where it is engaged in producing motion picture
prints in cartridge form , for professional clientele and
industrial and commercial advertising accounts. During
the calendar year ending December 31, 1973, the Respon-
dent purchased and received goods and materials valued in
excess of $50,000, which were transported to it from points
and places outside the State of Michigan . The Respondent
concedes , and I find , that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the United
States and Canada, AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The sole issue in this case is whether Respondent laid off
employee James J . Nugent in violation of Section 8(a)(1)
and (3) of the Act. The principal facts are largely not in
dispute.
Nugent was hired by Respondent in December 1969 as a
film processor and remained in this position until Novem-
ber 12, 1973, at which time he was laid off.
In or about June 1973, Nugent was primarily instrumen-
tal in the undertaking of an organizing campaign among
Respondent's employees by the International Alliance of
Theatrical Stage Employees and Moving Picture Machine
Operators of the United States and Canada, AFL-CIO,
herein called the Union . Pursuant to an election conducted
on August 2, 1973, the Union was certified on August 27,
1973, as the collective-bargaining agent for Respondent's
full-time and regular part-time employees . Shortly thereaft-
er the Union designated Nugent as the sole union steward,
whereupon Nugent , in turn, appointed two other employ-
ees and himself as members of the bargaining committee.
Following certification , Respondent and the Union
engaged in two bargaining meetings , one on October 9 and
the other on November 1. Although the principal spokes-
man for the Union was one of its international representa-
tives , Nugent also participated in the discussions. On
behalf of Nugent 's case, the General Counsel particularly
stressed , as the evidence shows , that, whereas the Respon-
dent and the Union's international representative were
agreeable to a 3-year contract , Nugent declared his
position to be that the contract should run for a shorter
period , namely, 1 year or 2 years, with a reopener clause.
In addition , other unrefuted evidence establishes that
Respondent was aware that Nugent was the leading union
advocate among the employees.
One Lee Lipner acted as Respondent 's general manager
from November 1972 to August 1973. In August 1973,
Lipner was demoted to the position of assistant general
211 NLRB No. 93
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager and on October 3, 1973, he was terminated.
Called as a witness by the General Counsel, Lipner
testified, without contradiction, that in about June 1973 he
had a conversation with Ronald Fuller, who at that time
was Respondent's executive vice president, wherein Fuller
stated that the organizational activities were the result of a
small number of dissatisfied employees. Particularly
mentioning Nugent as being one of the dissatisfied
employees, Fuller asked Lipner if it would be possible to
dismiss Nugent , adding that this action could "alleviate or
reduce the problem of having to deal with the Union."
Lipner testified that he responded by advising against the
taking of any such action, stating that "to do so would be
to risk violating the law." Lipner further testified that
during early summer 1973, he had several other conversa-
tions with Fuller concerning Nugent, all of which were of
similar content to the conversation related above.
Nugent testified concerning a meeting held on Novem-
ber 9, 1973, wherein Richard Cole, at this time Respon-
dent's executive vice president , addressed the employees
concerning Respondent 's financial difficulties .' Nugent
testified that at this time Cole related that Respondent was
fighting bankruptcy, that there would have to be cutbacks
and layoffs, but stated that if everybody pulled together
and worked harder the Company "could make it through."
Nugent testified that about an hour or so later he broached
Cole in the office and asked who would be appointed the
new general manager . (It appears this position was vacant
at the time). Concerning this entire conversation, Nugent
testified as follows:
I asked Mr. Cole who the general manager of the lab
was going to be. He said he didn't know. It would be
one of two people. I asked Mr. Cole who would be
representing the company at the next bargaining
session period. He said he didn't know but it most
likely be Mr. Herrmann. I informed Mr. Cole there was
a bargaining session scheduled for six o'clock Monday,
following that Friday . . . . Mr. Cole said what are you
going to do, if the union goes through and the company
goes under, and I said we would go under too but that I
felt we were not responsible for their plight, a
bargaining session was scheduled and somebody
should be there representing the company, at which
time Mr. Cole literally jumped out of his seat and said
how would you like to kiss my ass, and left the room in
a great hurry and that was the end of the conversation.
Nugent, along with 12 or 13 other employees, was laid
off on November 12, 1973. His layoff slip stated the reason
as "cut back-no work." The record further reflects that
Respondent advised the laid-off employees that they would
be recalled if future considerations warranted. However, it
appears that a new contract which Respondent had hoped
to procure did not materialize.
B. Respondent 's Defense
Preliminarily, it may be noted that in his opening
remarks the General Counsel conceded that Respondent's
business was in rather severe financial difficulties and that
therefore some rather large-scale layoffs were necessary.
Indeed, in addition to the layoffs of the 12 or 13 employees
on November 12, 1973, some 50-60 other employees were
laid off on two separate occasions not long before, the first
such layoff having occurred in September and the second
in October 1973. So drastic were the cutbacks that
Respondent's total employment complement was reduced
from approximately 100 employees to only approximately
16 employees at the time of the hearing. It is the General
Counsel's contention, however, that Nugent was discrimi-
natorily selected for inclusion in the November 12 layoff.
Whereas, on the one hand, the record reflects Respon-
dent union animus toward Nugent, particularly by Ronald
Fuller who was Respondent's vice president until August
1973, the record on the other hand also reflects that
Nugent was not a particularly valuable employee insofar as
Respondent was concerned. Thus, it is undisputed that
during the months of June and July 1973 Nugent's work
had become so unsatisfactory that Respondent was about
to take steps to discharge him. Lee Lipner, then the
manager, testified that he and Robert Winkel, then the
assistant foreman, "were enough concerned with the
quality of Jim's work that we had given serious considera-
tion to dismissing him." Indeed, at that time Lipner went
so far as to draft a letter to Nugent advising him that he
was being discharged. However, Lipner testified that he
finally determined to give Nugent another chance. He said
that he spoke to Nugent about his faulty work and that
thereafter Nugent became "competent."
Robert Winkel, who was directly involved in effecting
the November 12 layoff, was employed by Respondent in a
supervisory position since July 1972. He replaced Lowell
Jowers as manager on November 12, 1973, the same date
as the layoff.z Concerning the circumstance of his
becoming manager at this time, it appears that Jowers had
given notice that he was resigning from the Company
about a week or so earlier. During Jowers' last week with
the Company it was generally understood that either
Winkel or one Ron Fereis, who was in charge of the
processing department , would succeed Jowers as general
manager. Winkel testified that in the late evening of
November 10, he received a telephone call from Vice
President Cole (who Winkel said was calling either from
his home or from New Orleans), who at this time asked if
he would accept the position of general manager. Winkel
said he replied in the affirmative, whereupon Cole stated
that he would let him know the next day. However, Winkel
said that Cole did not call the next day and that he did not
learn of his appointment as general manager until he came
to work on Monday, at which time he was so apprized by
Jowers. Winkel testified that he did not discuss the
impending November 12 layoff when he talked with Cole
on November 10.3
It is undisputed that Respondent in fact was in severe financial that he had replaced Vice President Ronald Fuller.
difficulties at this time . 3 Although Cole was in Washington and did not testify at the hearing,2 As indicated hereinafter, Jowers also was a vice president , it appearing the parties stipulated that concerning the November 10 telephone
FILMAKERS' LABS, INC. 637
Winkel received instructions at about 10 a.m. on
November 12, this just shortly after having been apprised
of his appointment as general manager , from T. James
Herrmann, the president of Respondent's parent, Omnium
Corporation, to the effect that he would have to operate
with a maximum payroll of $3,000 per week and that he
would have, to layoff whatever employees necessary to
meet this guideline . At the same time Herrmann instructed
Winkel to return or dispose of $100,000 worth of
equipment which the Company had purchased during the
summer . Other than the foregoing, Herrmann told Winkel
only that he was to consider seniority and ability in
determining which of the employees were to be laid off.4
Winkel testified that he had but a few hours in the
morning to determine how to meet with Herrmann's
directions with respect to personnel and equipment. He
finally decided, he testified, to layoff the entire second shift
and also to reduce the personnel in another department to
the extent of retaining only four employees.5 Concerning
which of the latter to retain , Winkel testified that he
accepted the recommendations of the head of that
department who advised him which of the employees were
"good workers'' With respect to Nugent, Winkel testified
that he personally was responsible for the selection of this
employee to be laid off.6 As to Nugent, Winkel related not
only the trouble he and Lipner had with Nugent over
Nugent's poor work performance in June and July 1973,
but he further testified , without contradiction, that prior to
his coming with Respondent he had found it necessary to
discharge Nugent for incompetency when he and Nugent
worked for another company.? Winkel declared that
because of the foregoing, "I knew that Jim and I could not
get along, and so at this time I said if I have to work with
people I want people that I can work with."
C. Additional Facts; Conclusions
In further support of Nugent's case, the General Counsel
introduced evidence, which is not disputed, showing that at
the time of the November 12 layoff Respondent retained
four employees who had less seniority than this employee,
and further, that Nugent was qualified to do the work
performed by these employees. In contending that Nugent
was discriminatorily terminated, the General Counsel
couples the foregoing with Respondent's knowledge that
Nugent was the leading union adherent plus the fact of the
demonstrated animus which Vice President Arnold Fuller
held toward this employee because of his union activity, as
shown in his conversations with Lipner. While I recognize
that all the foregoing does tend to establish a prima facie
case upon behalf of Nugent, upon the entire record, and
for the reasons noted below, I am persuaded that Nugent's
layoff in fact was predicated upon legitimate business and
operating considerations.
First of all, and with regard to the fact that Respondent
conversation Cole would simply testify, "I called Winkel Friday night to ask
him if he would take on the job, but didn't discuss Nugent."
4 Credited testimony of Herrmann.
3 The record is confusing as to whether this involved the printing
department or another department involved in cartridge loading.
6 Winkel said he also selected another employee in the processing
department , one Randy Clark, for layoff.
7 The other company was Central Photo, where Winkel was employed as
retained some employees with less seniority than Nugent,
there is no evidence to establish that Respondent had a
practice of laying off employees in strict accordance with
seniority. To the contrary, the record shows that Respon-
dent also considered ability and willingness to work in
making layoff selections. But of more specific importance
is the fact that prior to his layoff Nugent's primary job with
Respondent was to operate the ME processing machine. In
this he was not replaced by one of the less senior
employees, but rather, in his consolidation of the remain-
ing operations, Winkel assigned this job to Mike Jones
-and Jones was senior over Nugent, having been with the
Company since its inception. Furthermore, the record
reflects that the less senior employees had lower paying
jobs than Nugent, and also that Respondent followed a
policy of not decreasing the salaries of any of the retained
employees (including Jones, who in effect was demoted as
full-time foreman of the finishing department when he
took over Nugent's ME machine). Accordingly, as I think
Respondent reasonably points out, under all the circum-
stances it would have been financially infeasible to retain
Nugent at his higher salary and at the same time put him
on one of the lesser paying jobs performed by the less
senior employees.
Secondly, it is noteworthy that the only evidence of
union animus is Lipner's testimony concerning the expres-
sions which Fuller made to him during the early summer of
1973. While there can be no doubt that Lipner's testimony
concerning his conversations with Fuller was damaging to
Respondent's case, Lipner further testified that Fuller, then
Respondent's executive vice president, was succeeded in
that position by Lowell Jowers in August 1973. Since the
record is entirely silent as to what happened to Fuller when
he was replaced by Jowers, I find no basis for concluding
that Fuller was still in Respondent's employ during the
layoffs that occurred on September, October and, particu-
larly, in November. In any event, assuming arguendo that
Fuller still was in Respondent's employ during the latter
period, there is no evidence whatsoever to indicate that he
was in any way consulted or involved in the layoffs which
occurred at that time .8
Finally, I think Winkel gave a plausible explanation for
including Nugent in the November 12 layoff and I have no
reason to doubt his testimony in this regard. As previously
related, Winkel had previously discharged Nugent when
both worked for another company, and he (Winkel),
together with Lipner, was on the verge of discharging him
from Respondent's employ in July 1973. While it appears
that Nugent's work performance improved after a warning
at this time, I think it quite understandable that Winkel
would nevertheless take this background into considera-
tion when, some 4 months later, he was under instructions
to cut the total employee complement, with the use of his
own discretion, to meet a certain dollar guideline. In short,
a supervisor and Nugent an employee.
8 I do not regard Nugent 's testimony concerning the incident of
November 9 as evidence of union animus by Vice President Cole. Cole had
just addressed the employees concerning Respondent's financial plight,
including the fact that the Company was facing bankruptcy. His reaction to
Nugent's intrusion shortly after this meeting, it seems to me, would appear
quite normal under the circumstances.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am persuaded that Nugent would have been laid off on
November 12 even absent his union activity.9
In sum, and in view of all the foregoing, I find and
conclude that a preponderance of the evidence fails to
establish that Respondent laid off Nugent in violation of
Section 8(a)(1) and (3) of the Act. Accordingly, it is
recommended that the complaint be dismissed.
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the
meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. The Respondent has not committed unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
9 Herrmann testified that Winkel mentioned the possibility of some basis for drawing any conclusions adverse to Respondent's case because he
trouble with the National Labor Relations Board if he laid off Nugent at so apprised Herrmann . I also draw no adverse inference from the fact that
this time . Herrmann said he advised Winkel to use his best judgment and to Winkel refused to give Nugent a list of all the laid-off employees after he
let him (Herrmann) worry about the NLRB . I think Winkel was merely had been laid off on November 12.
exercising due prudence when he mentioned this possibility and I see no