Pullman Power Products Corp.

National Labor Relations Board - Board Decisions

Jun 26, 1985

275 N.L.R.B. 765 (N.L.R.B. 1985)

PULLMAN POWER PRODUCTS
Pullman Power Products Corporation and Sterling
Ansley and Paul Sweeney and John M: _ Craft
and Ray Bates and Ross Winner . Cases : 10-
CA-19651-1, 10-CA-19615-2, 10-CA-.19615-
3, 10-CA-19615-4, and 10-CA-19774
26 June 1985 - -
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND'DENNIS
On 26 September 1984. Administrative -.Law
Judge Karl H. Buschmann issued the attached deci-
sion. Both the General Counsel and the Respond-
ent filed exceptions and supporting briefs. Thereaf-
ter, they each filed an answering brief to the other
party's exceptions. -
The Board has considered the -decision and the
record in light of the exceptions and briefs and has
decided to affirm -the judge's rulings, findings,- and
conclusions except as modified herein.
The judge found that the Respondent violated
Section 8(a)(1) when Supervisor Altman threatened
employee Ross Winner with a loss of jobs because
of his protected concerted activity. We agree. The
judge, however, also found that the 'Respondent
lawfully laid off Winner effective 30 July 1984:1
We again agree with the judge. Accordingly, we
dismiss the 8(a)(3) and (1) -allegations relating to
Winner's layoff.
The judge further found that the Respondent
violated Section 8(a)(3) and (1) by laying off the
four millwrights-Sterling Ansley, Paul Sweeney,
John Craft, and Ray bates-on 22 August. The
judge found that these men had been selected for
layoff, not because of their work habits as 'de-
scribed by Superintendent Walker, who made the
layoff selection, but because Walker considered
them to be troublemakers for having engaged in
union activity and for having been involved in- re-
placing their steward. We disagree with the judge
for the reasons.set out below.
For the judge, Walker's meeting with the mill-
wrights held 22 August provided the key to the
four layoffs later that day. Without explanation, the
judge found that this meeting had been called by
Walker for the specific purpose "to discuss the
millwrights' activity in selecting a new [u]nion
steward." The judge further found that - in this
meeting Walker said that Owens-was a good stew-
ard and then promised to make changes because
Walker had enough of the employees' "squab-
bling."' The judge, in effect, found that "squab-
All dates are in 1984 unless otherwise indicated
275 NLRB No. 112
765
bling" was synonymous, with the millwrights' ac-
tivity in replacing James Owens as their steward.
After construing the 22 August meeting as indic-
ative.of a discriminatory motive for the layoffs, the
judge rejected Walker's stated justification for his
layoff- selection. The. judge relied on the timing of
the , layoffs in - relation; to the new steward election
and the subsequent notification of, the election re-
sults to the Respondent, as well as Owens' reelec-
tion as' steward after. the -millwrights' layoff. The
judge also disagreed with the Respondent's specific
grounds for .layoff, finding the= incidents described
by Walker to be too remote in relation to the lay-
offs and, in his opinion, involving relatively minor
infractions by the men. The judge was also influ-
enced by the fact that not all laid-off millwrights
came from the crew whose work had been com-
pleted, thus - necessitating the layoffs in the first
place. Finally, the judge relied on Walker's trial
testimony in which he- characterized. three of the
laid-off millwrights-Bates, Ansley, and Craft-as
"troublemakers." The judge-inferred that this char-
acterization was based not on the reasons given by
Walker but because the laid-off employees had en-
gaged in the union activity connected with replac-
ing Steward Owens.
Based on our review of the entire record, we
find that each of the critical aspects of the 22
August meeting is equally susceptible. to two differ-
ent meanings , one lawful and the other unlawful.
We further find that the record taken as a whole
gives an insufficient basis for us to choose the un-
lawful meaning, which -the judge consistently ac-
cepted, over the lawful meaning. We therefore re-
verse.
First, the judge inferred that, the 22 August
meeting was called to discuss the steward • replace-
ment matter. While the judge did not explain why
he chose this inference, it appears-that-he did so
because the- meeting was held a few days after
Steward Owens had been replaced and Walker
mentioned the steward replacement at the meeting
-itself. On the other hand, the record reveals that
Walker testified that his reason for holding the
meeting was to discuss the "turmoil" on the job.
Walker testified that' he,recently had learned that
the disciplinary authority of the assistant millwright
superintendent- on the project had been questioned.
According - to Walker, whose testimony was cor-
roborated by the testimony of another witness gen-
erally credited by the judge, he told the assembled
millwrights that -the assistant millwright superin-
tendent did have the authority to fire them. The
judge° failed to explain why, the remark about
Owens and not the remark about the-assistant mill-
wright superintendent, both of which concerned
766
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recent events and were mentioned by Walker at
the 22 August meeting , established the purpose of
that meeting . Without more information , we are
unable to find the definitive purpose of the meeting
on the basis of"the record before us. '
' Second, when the judge found that the Respond-
ent was annoyed with the replacement of-Owens,
the judge apparently interpreted Walker's remark
that "Owens was a good steward " to mean that the
Respondent believed that Owens was pro-compa-
ny. The record, however, does not support that
finding . While Respondent was clearly annoyed
with the employee 's bickering and dissatisfaction-
of which the change in steward may have been a
part-it does not appear that the Respondent had a
preference for the steward position . Simply because
some employees were disenchanted with Owens'
performance as a steward does not prove that the
Respondent was pleased with it . The Respondent's
primary - concern was to end the employee squab-
bling , not with supporting the incumbent steward.2
Third , the judge interpreted Walker's comment
about making changes to have originated from the
millwrights' activity in--replacing Owens. Credited
testimony shows that Walker's reference to the
possibility of changes occurred at the point in the
discussion when Walker told the men that he was
tired of their "squabbling." The judge implicitly
concluded that "squabbling" referred to the em-
ployees' activity in-replacing their steward. Again,
the judge did not delineate his reason for accepting
this particular interpretation over all others sug-
gested by the record. It appears that the judge in-
ferred this interpretation from Walker's having
mentioned the steward replacement matter , prior to
the squabbling remark . The judge, however, failed
to consider that the "squabbling" could as easily
have been in, reference to the turmoil over the dis-
ciplinary authority of the assistant millwright su-
perintendent which Walker also mentioned in that
conversation. The judge also did not reconcile the
fact that Walker's remark could have been in refer-
ence to the admitted ongoing tension between the
local millwrights and the millwright travelers on
the project. And, as discussed below, some of the
laid-off employees were involved in this source of
tension. '
In the absence of any 'demonstrable animus on
the part of the Respondent, 'we cannot attach the
unlawful meaning- • which the judge ascribed to
2 Cf. Newport News'Shipbuilding, 233 NLRB 1443, 1451-52-(19.77)
(where the employer favored the incumbent labor organization and ex-•-
hibited displeasure , through statements and disciplinary actions, directed
at employees who supported a potential rival labor organization ); Trian-
gle Sheet Metal Works,-238 NLRB 517, 520 (1978) (where the employer
engaged in various kinds of conduct showing its opposition to a union
presidential candidate favored by the employee)
Walker's remarks about Owens or about possible
changes.3 The record contains no evidence that
Walker at any time disparaged the new steward,
voiced any displeasure with the steward election,
or took any action to oppose the steward election
or to affect its outcome. It is not enough that
Walker's remarks about changes were made in the
discussion which included his praise of Owens for
us to assign an unlawful interpretation. See Burgess
Mining & Construction Corp., 250 NLRB 211, 214
(1980).
We recognize the ambiguity of Walker's remarks
and, for this reason, we have considered them in
connection with the surrounding circumstances,
which include Walker's initial reaction to the stew-
ard replacement. According to Bates, whose testi-
mony was generally credited by the judge, when
Walker was told of the results of the 9 August
steward election, Walker responded that he would
need a- letter from the Union confirming that
Currie was the new steward. Such a letter admit-
tedly is required by the applicable contract with
the Union. This neutral reaction by Walker, rein-
forces for us the absence of-animosity on the part
of the Respondent towards the steward change. In
sum, we find that the record as a whole gives little
support. for choosing the unlawful meaning over
the lawful meaning for Walker's remarks about
Owens or about changes because of "squabbling."
Further, unlike the judge,, we find that the timing
of the layoffs after the visible union activity in-
volved here is also susceptible 'to another lawful
explanation. It is undisputed, that the Respondent's
work ran out and- a layoff was necessary at that
time . See Philips Medical Systems, 243 NLRB 944,
945 (1979); Maniac Corp., 231 NLRB 858, 861
(1977).
As noted by the judge, the General Counsel's
objection to the layoffs lay with the selection only.
The General Counsel did not dispute even the
number of layoffs except to the extent that it was
less than the entire millwright complement on the
crew whose work had been depleted. The General
Counsel took the position, -that these. four mill-
wrights were selected because of their prominent
role in replacing Steward Owens.
Even if we were to accept -the General, Counsel's
position that the source for=the layoffs should have
been the crew ,whose work had, been depleted, we
find that the Respondent substantially confined
itself to that crew for its layoff, selection. Sweeney,
Craft, and Bates had been assigned to - the mill-
wright crew whose work had been depleted.
3 We observe that Walker's remarks were not alleged to be violative of
Sec 8(a)(1) of the Act nor were they found to be so
PULLMAN POWER PRODUCTS
In addition, so far as the record shows, the Re-
spondent's layoff. criteria used here are consistent
with its past practices, regarding layoffs. Consisten-
cy with past practices undercuts suspicions that
layoffs were for unlawful reasons. See Nabisco,
Inc., -267 NLRB 1236, 1237 '(1983). In this regard,
the General Counsel advances the position that se-
niority of the men should have been a significant
factor in the selection process. We disagree because,
the record does not reveal that seniority had been
used in the past for layoff selection. Accordingly,
the Respondent was under no obligation to use se-
niority here and its failure to do, so cannot be used
as evidence of a discriminatory'motive on the part
of the Respondent. See_- Documation, Inc., 263
NLRB 706 (1982).
We further find that the record fails to demon
strate that someone else other than Ansley, Bates,'
Craft, and Sweeney should have been picked for
layoff. See Circle Import Export. Co.,' 244 (NLRB
255, 261 (1979). The record reveals that many of
the millwrights on the project - were dissatisfied'
with Owens. Bates testified that the "majority" of
the millwrights were- "teed off" by Owens" per
formance as steward. Sweeney testified that "ap-
proximately 15," out of 24 millwrights, were' in
volved in the.effort to change the steward. - -'
The record-reveals that Ansley, Bates, .Craff,- and-
Sweeney were involved in setting up the' steward
election to the extent that they approached their"
union business agent who, in . turn, , set up -a union
meeting - to discuss the matter: They 'talked'to -dther -
employees trying to obtain' votes for' • Herbert
Currie, their choice. Bates, along with -Everett'
Phillips who was not laid off, spoke in'• favor of a'
steward election at the. union, meeting: Although"
the record reveals that the Respondent was aware '
that several - employees, . including Bates 'and'
Ansley, wanted a new steward, the- record"-is- lack-
ing as to whether the Respondent was aware that'
Craft-and Sweeney were also involved- of- knew- of
the extent of the involvement of Bates and;Ansley.
Phillips actually conducted the first- election held'-
9' August; and, Currie. won .themajority -of'votes--
which had been'cast by a i `show of hand's. Ansley;'
Bates , Craft, and Sweeney testified" that'each' voted'
for Currie. The record,'however;