Our-Way, Inc.

National Labor Relations Board - Board Decisions

Aug 15, 1979

244 N.L.R.B. 236 (N.L.R.B. 1979)

I)t((ISI()ONS O1: NAIONAL I.ABOR RELATIONS BOARD
Our-Way, Inc. and Maxey Cox. ('ase 10-('A 13696
August 15. 1979
DE('ISION AND ORDER
BY (IIAIRMAN FANNING ANt) MI:MIBERS PNII.I.()
AND TRUESDAI F
On May 25. 1979, Administrative Law Judge Don-
ald R. Holley issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
limited cross-exceptions, an answering brief, and a
"Motion to Strike Counsel for the General Counsel's
Exceptions Brief."
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, briefs, and
motion' and has decided to affirm the rulings,2 find-
' On June 18. 1979, the General Counsel filed timely exceptions and a
supporting brief with the Board, along with a certificate of service asserting
that copies of the exceptions and brief were served on the parties. On July 2.
1979. Respondent filed its limited cross-exceptions and a brief in opposition
to counsel for General Counsel's exceptions brief with the Board concur-
rently with a motion to strike. In its motion to strike Respondent asserts that
it was not served with a copy of the General Counsel's exceptions as required
by Sec. 102.46(j) of the National Labor Relations Board Rules and Regula-
tions. Series 8. as amended. and that the General Counsel's supporting brief.
which apparently was properly served on Respondent, must therefore be
disregarded by the Board inasmuch as it refers to exceptions not properly
served on the parties. On July 16. 1979. the General Counsel filed a response
to Respondent's motion to strike with the Board, in which he asserted that he
had served Respondent with another copy of the exceptions on July 3, 1979.
immediately upon receipt of Respondent's motion to strike. Respondent has
filed no further motions or responses with the Board since that time. Respon-
dent does not contend that it has suffered any prejudice due to the alleged
failure to promptly serve the exceptions, and it is clear rom a reading of
Respondent's timely answering brief that its receipt of the General Counsel's
supporting bnrief enabled it to respond fully to all of the issues raised by the
General Counsel's exceptions. Further, under Sec. 102.112 of the Board's
Rules and Regulations, mere failure of service upon a party does not neces-
sarily vitiate exceptions which have been properly filed with the Board where
the Board withholds "any ruling on the subject matter ... until after service
has been made and the served party has had reasonable opportunity to
respond." See Cameron Iron Works, Inc., 235 NLRB 287 (1978). Respon-
dent's motion to strike the General Counsel's brief is therefore denied.
2 The General Counsel contends that the Administrative Law Judge erred
by considering only facts adduced at the hearing in this case which occurred
during the 6-month period preceding the service of the charge to determine
whether Respondent violated the Act. Although the Administrative Law
Judge did make several very broad statements in his Decisions indicating
that he would on) consider facts adduced within the 6-month period preced-
ing the service of the charge, he did. however, as requested by the General
Counsel, take judicial notice for background purposes of the Board's deci-
sion In Our-Way, Inc./Our-Wav Machine Shop. Inc., 238 NLRB 209 (1978).
In that case. the Board found that this same Respondent had violated Sec.
8(a) 1 and (3) of the Act by laying off Maxey Cox. the Charging Party in
this case. in October and November 1976 and had violated Sec. 8(a) ), (3).
and (4) of the Act by issuing warning slips to Cox and suspending Cox
during June and September 1977. Further, it is apparent from a reading of
his Decision that the Administrative Law Judge actually considered the find-
ings of fact in the prior Board decision as background evidence in making his
ings,3 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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
conclusions in this case. Thus, his Decision contains a section entitled "Back-
ground," which is devoted solely to a discussion of the previous Board deci-
sion, wherein he stated that he had reviewed that decision and in which he
summarized the findings in the previous decision regarding Cox.
It is well established that under Sec. 10(b) of the Act the Board may not
give independent and controlling weight to events occurring more than 6
months before the filing and service of the charge: however, evidence as to
such events may be considered as background to explain ambiguous and
equivocal conduct occurring within the 10(b) period or to shed light on
Respondent's motivation where Respondent has failed to establish bona fide
business reasons for its conduct. Tupco, Division of Dart Industries, Inc., 216
NLRB 1046, fn. 1 (1975), enfd. 525 F.2d 692 (5th Cir. 1975): Paramount Cap
Manufacturing Company, 119 NLRB 785, 787 (1957). enfd. 260 F.2d 109 (8th
Cir. 1958).
In adopting the Administrative Law Judge's Decision in this case. we do
not rely upon his overbroad statements regarding the consideration and
weight given to events occurring outside the 10(b) period. Rather, we have
carefully scrutinized the record in this case and the Board's findings regard-
ing Cox in the previous case. and we have concluded that the General Coun-
sel did not make a prima jcie case that Respondent discriminated against
Cox when it laid him off on January 27. 1978. Thus. we agree with the
Administrative Law Judge that the evidence indicates that Cox was treated
similarly to. if not more favorably than. the other seven employees in his
department who were laid off at the same time he was. Finally. since Re-
spondent had a legitimate business reason for laying off the employees in this
department. there is no need to rely on the evidence of animus towards Cox's
union activities from the prior Board case to explain Respondent's conduct.
In the Analysis and Conclusions section his Decision, the Administrative
Law Judge incorrectly stated that the 6-month period preceding the service
of the charge in this case began on Februars 26, 1977. rather than on No-
vember 26. 1977. We therefore correct this inadvertent error.
DECISION
STArEMENT OF THE CASE
DONALI) R. HOLLEY, Administrative Law Judge: Upon a
charge filed by Maxey Cox (herein Cox). on May 24. 1978.
the Regional Director for Region 10 of the National Labor
Relations Board (herein the Board). issued a complaint
against Our-Way. Inc. (herein Respondent). on July 24.
1978. alleging that Respondent violated Section 8(a)(4). (3).
and (1) of the National Labor Relations Act. as amended
(herein the Act), by placing Cox in layoff status during the
period January 27. 1978. to March 7. 1978. rather than
retaining him in other available job positions during the
period described. By answer which was timely filed. Re-
spondent denied that it had engaged in the unfair labor
practices described in the complaint.
Pursuant to notice the case was heard befire me in At-
lanta. Georgia, on December 20 and 21. 1978. All parties
were afforded a full opportunity to participate in the hear-
ing. Respondent and the General Counsel were afforded an
opportunity to engage in oral argument at the conclusion of
244 NLRB No. 38
236
OUR WAY, INC.
the hearing and have filed briefs subsequent to the close of
the proceeding. Upon the entire record and from my obser-
vation of the witnesses. I make the following:
FINI)IN(S O() FA( I
I. JURISI)I( ION
Respondent, a Georgia corporation. maintains offices
and places of business located at Atlanta, Georgia, and
Tucker, Georgia, where it is engaged. inter alia, in the re-
pair and rebuilding of air conditioning equipment, includ-
ing compressors. During the calendar year preceding issu-
ance of the complaint herein Respondent. in the course and
conduct of the above-described business, purchased and re-
ceived from suppliers located outside the State of Georgia
goods and services valued in excess of $50000. It is not
disputed and I find that Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. STATUS OF LABOR ORG(ANIZAII()N
It was admitted and I find that International Brother-
hood of Firemen & Oilers. AFL-CIO herein the Union)., is
a labor organization within the meaning of Section 2(5) of
the Act.
111. THE ALI.EGED UNFAIR AB()R PRA( II( ES
A. Background
At the outset of the hearing General Counsel requested
the I judicially notice the Board's decision in Our-Way.
Inc.,/Our-Wav Machine Shop, 238 NLRB 209 (1978) for
background purposes. While I have reviewed that decision
and summarize certain relevant portions of it below. I will
consider only facts adduced within the 6-month period pre-
ceding the service of the charge in the instant case to deter-
mine whether Respondent has violated the Act as alleged in
the instant complaint.
Administrative Law Judge Kaplan's Decision in the
above-mentioned case (adopted with minor charges not
here relevant by the Board), reveals that International
Brotherhood of Fireman & Oilers. AFL-CIO. commenced
an organizational campaign at Respondent's Atlanta plant
during the summer 1976. and that campaign led to the con-
duct of a Board-supervised election among Respondent's
employees on November 4 of that year. For the reasons set
forth in his Decision Judge Kaplan found that Respondent
engaged in numerous violations of Section 8(a)( 1). (3). and
(4) of the Act during the union campaign. With specific
regard to the alleged discriminatee in the instant case
Maxey Cox-Judge Kaplan found, with Board approval,
inter alia. the following: that Respondent laid off Cox for
discriminatory reasons on certain dates in October and No-
vember 1976: that Respondent discriminatorily issued
warning slips and thereafter suspended Cox and employee
Joe Lewis Smith for 3 days; and that Respondent violated
Section 8(a)(I) and (4) of the Act by discriminatorily issu-
ing warning slips and thereafter suspending Maxey Cox be-
cause he gave testimony under the Act.
B. Facts idduced in the Insltant (sh
The alleged discriminatee. Cox, was the on12 wintes to
testify in the instant case. At the conclusion of the General
Counsel's presentation Respondent chose to rest ithout
calling any witnesses to testify in its behalf. Cox's testimony,
and the remaining record evidence are summarized below.
Cox was hired by Respondent in August 1969. From his
date of hire to November 1976 he was used as a warrant.
inspector. In that position he primarily disassembled (tore
down) Copeland refrigeration compressors and made writ-
ten notations indicating which parts were defective if the
compressor was still under warranty.' In November 1976
Cox's job as warranty inspector in the (Copeland depart-
ment was eliminated. and he was demoted to a teardos n
position in the same department. which caused his rate to
drop from $4.95 per hour to $4.16 per hour.2 On November
28. 1977. Cox was transferred to Respondent's Dunham-
Bush department as a warranty inspector. and his hourly
rate went to $5.32 per hour.
On January 27. 1978. the entire I)unham-Bush teardown
section. consisting of eight emplo,ees including Cox, was;
laid off.' The employees involved were Ronnie Benford,
Hewlett Parks, Frank Martin. James Ellis. Chester Busse.
John Rucker, Warren Glenn, and Cox. Cox testified that
Plant Manager Charlie Askham informed the employees on
that date that they were running out of parts and '.ere
laying employees off for a while for that reason?' Askam
indicated at the time that he could not give the employees a
definite date of recall, that they should call back in 2 weeks.
Cox testified that he called the personnel office 2 weeks
later and was told to call back in 2 weeks. He called the
personnel office a second time as instructed. and he was
told to call back in I week.
On March 6. 1978, Cox went to Respondent's personnel
office and indicated that he desired to speak with a Ms.
Finley. He was told by Finley's secretary that she was at
the Tucker plant. After discussion with the secretary Cox
requested a map which would guide him to the Tucker
plant. The secretary drew a map for Cox. and he left. That
evening Finley called Cox's home and left a message that
Cox should report back to work the next day. Cox indicated
that he was worked steadily at Respondent since he was
recalled on March 7, 1978.
Cox testified on cross-examination that only three em-
ployees were recalled from layoff to the Dunham-Bush
teardown section. ' Ronnie Benford. Frank Martin. and
Chester Bussey were not recalled. Hewlett Parks was re-
called to a teardown position in the Copeland department.
and James Ellis was recalled to an unspecified position.
I Respondent remanufactures he compressors ofi other companies includ-
ing Copeland. Dunham-Bush. and Carrier.
2 Administrative Law Judge Kaplan found in he earlier case hatl he
demotion was lawfully accomplihshed.
3 Cox indicated that he helieved some of the emplosees working in I)un-
ham-Bush assembh were also laid off at the same time.
' Cox estified that he, Joe ewis Smith, and Grads Wi lis usere ihe (Cope-
land teardown emploees who eslitied during the earlier unlalir abor prac-
tice hearing Smith and Willis were still emplosed n the (opelaln d ,sscmihl\
department at he time of the lasoff in question afind the\ arkel 'shile the
Dunham-Bush teardlwn employees were in l.tff slu,
'C (ox. John Rucker. and Warren Glenn
237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For some unstated period of time after the three named
employees were recalled from layoff to positions in the
Dunham-Bush department they performed odd jobs and
did not tear down compressors. When they did resume their
normal teardown activities they did some teardown of Car-
rier compressors.'
At some time before the hearing in the instant case the
Dunham-Bush department was moved from an upstairs to
a downstairs location, and at that time several Copeland
department employees were transferred to the Dunham-
Bush department to restore the number of employees in the
teardown section to eight, the prelayoff level.'
The record reveals the remainder of the Copeland de-
partment employees were transferred to the Tucker plant.
Cox testified that he knew of no Dunham-Bush employees
who were moved to the Copeland department and there-
after sent to the Tucker plant.
Cox testified that prior to the 1976 union campaign when
there was insufficient compressor work he was assigned to
any work he was capable of performing, including anything
from sweeping the floor to painting. In this regard. the Gen-
eral Counsel emphasizes the fact that Respondent admitted
paragraph 7 of the complaint, which alleges: "During the
lay-off alleged in paragraph 6 above. Respondent refused to
employ its employee Maxey Cox for other available job
position at Respondent's Tucker. Georgia facility."s
Analysis and Conclusions
The charge in this case was filed by Cox on May 24.
1978, and it was served on Respondent on May 26. 1978.
Consequently, Section 10(b) of the Act precludes me from
basing any finding that Respondent violated the Act upon
events which occurred more than 6 months prior to the
service of the charge-February 26. 1977. I conclude that
the General Counsel has failed to offer sufficient evidence
regarding events which occurred during the period Febru-
ary 26. 1977. to May 26. 1978 (or thereafter), to prove that
Cox was laid off from January 27. 1978, to March 7. 1978,
for discriminatory reasons.
In sum, this record reveals that Cox was promoted to the
position of warranty inspector in the teardown section of
Respondent's Dunham-Bush department on November 28,
1977. Thereafter, on or about January 27, 1978, all eight
employees then employed in the Dunham-Bush teardown
area were simultaneously informed that they would be laid
off an indefinite period of time because Respondent was
running out of parts. At the same time it appears that some
of the employees working in Dunham-Bush assembly were
'Cox indicated that he simply helped tear down Carrier compressors and
received warranty inspector pay when working on Carrier compressors.
'Copeland department employees transferred to the Dunham-Bush de-
partment included Grady Willis and Joe Lewis Smith. government witnesses
in the former case. The Copeland department operated while Dunham-Bush
department employees were in layoff status.
' The record fails to reveal the nature of the work performed at the Tucker
plant during the layoff under discussion.
also laid off. Five of the teardown employees involved in
the layoff were never recalled to the Dunham-Bush tear-
down operation. However. Cox and two other employees
were recalled on March 7. 1978, and Cox has worked con-
tinuously since that time. Although he has performed work
other than warranty inspection he has continuously re-
ceived warranty inspector's pay. While the General Counsel
contends that Respondent should have transferred Cox to
available work at Respondent's Tucker. Georgia. plant
rather than lay him off, there has been no showing that
Respondent transferred any employees from the Atlanta
plant to the Tucker plant to avoid laying them off. The
General Counsel does not claim that the seven employees
other than Cox who were involved in the January March
1978 layoff were discriminatorily treated.
While the facts summarized above appear to compel a
conclusion that Cox was treated more favorably than other
employees during the period under discussion, the General
Counsel submits that I should find that Cox was laid off for
discriminatory reasons because the Board's decision re-
ported at 238 NLRB 209 reveals that Respondent engaged
in repeated unlawful and discriminatory acts. man of
which involved Cox, during 1976 and 1977. Thus, the brietf
submitted by the General Counsel consists largely of refer-
ence to events which occurred outside the 10(b) period. As
indicated at the outset of this analysis, those acts of Re-
spondent which occurred prior to February 26. 1977. can-
not serve as the basis for a finding that Respondent unlaw-
fully discriminated against Cox during the period January
27, 1978, to March 7. 1978.
Upon the entire record. I find that General Counsel has
failed to prove that Respondent laid Maxey Cox off and/or
failed to transfer him to other work at its Tucker plant
during the period January 27. 1978. to March 7, 1978, fobr
discriminatory reasons. Accordingly, I recommend that the
complaint be dismissed.
CON(CIL:SIONS OF LAW
I. 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 meaning
of Section 2(5) of the Act.
3. Respondent has not engaged in conduct which vio-
lates Section 8(a)(1) and (3) of the Act as alleged in the
complaint.
Upon the above findings of fact. conclusions of law, and
the entire record, and pursuant to Section 10(c) of' the Act.
I hereby issue the following recommended:
ORDER 9
The complaint is hereby dismissed.
9 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.
238