Sol-Jack Co.

National Labor Relations Board - Board Decisions

Nov 27, 1987

286 N.L.R.B. 1173 (N.L.R.B. 1987)

SOL-JACK CO.
Sol-Jack Company and United Steelworkers of
America, Upholstery Diviision, Local Union
404-U, Petitioner . Case 4-RC-16278
27 November 1987
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
The National Labor Relations Board , by a three-
member panel, has considered a determinative chal-
lenge to an election held 12 August 1986 and the
attached hearing officer's report recommending
disposition of it. The election was conducted pur-
suant to a Stipulated Election Agreement. The
tally of ballots shows one for and one against the
Petitioner, with one challenged ballot, a sufficient
number to affect the results.
The Board has reviewed the record in light of
the Respondent's exceptions and brief and reverses
the hearing officer's finding that Rodney Sewell
had a reasonable expectation of being recalled on
the date of the election and was therefore eligible
to vote. Accordingly, we sustain the challenge to
Sewell 's ballot.
The Employer excepted to the hearing officer's
finding that Sewell has a reasonable expectation of
future employment. The Employer contended that
Sewell was dismissed owing to lack of work and
declining sales that resulted in decreased income
which showed no indication of increasing in the
near future.
The relevant facts are, briefly, as follows. The
Employer is engaged in the manufacture of bed-
ding, over 90 percent of which is used by Reliance
Corp., a sister corporation located 50 feet from
Sol-Jack. In 1983 the Employer earned a net profit
of $2000 on sales of $203,203. In the following 2
years sales fell to $104,611 resulting in a net loss of
$6000. At the time of Sewell's discharge in July
1986, sales for 1986 were projected to be approxi-
mately equal to those of 1985. Part of this decline
in sales can be attributed to the fact that Sol-Jack
had lost five of its six outside customers.
Rodney Sewell was hired in May 1984 as a
helper. His tasks included loading and unloading
trucks, delivering quilted panels to Reliance Bed-
ding, assisting fellow employee Shirley Calvin in
the operation of her quilting machine, stocking ma-
terial , keeping the work area clean , and learning
how to cut and measure mattress panels and to op-
erate the quilting machines.'
i The Employer contends many of these duties were of an intermittent
nature and of relatively short duration.
1173
On 18 July 1986 Sewell was informed by Super-
visor Jerry Dorfman that he was laid off because
of the Company's lack of business and poor finan-
cial condition. Sewell then sought out Jack Dorf-
man, the supervisor's father and part-owner, to
confirm his layoff. According to the testimony of
Dorfman, Sewell was told that his layoff was the
result of a lack of work and that there were no
plans to recall him. However, Sewell contends that
Dorfman stated that he might be back to work in 1
or 2 weeks and asserts that this is conclusive evi-
dence of a probability of recall notwithstanding
that he was informed on 12 August, the day of the
election, that his layoff was permanent.
The test for establishing the eligibility of a laid-
off employee to vote in a representation election
was set forth in Higgins, Inc., 111 NLRB 797
(1955). This test looks to all the facts and circum-
stances in the record to determine whether there is
a reasonable expectancy, on the date of the elec-
tion, that an individual will return to work in the
near future. The "objective factors" the Board em-
ploys to decide whether an employee possesses
such an expectancy include "the Employer's past
experience, the Employer's future plans, and the
circumstances of the layoff, including what the em-
ployes were told as to the likelihood of recall."
Atlas Metal Spinning Co., 266 NLRB 180 (1983),
Accord: D. H. Farms Co., 206 NLRB 111, 113
(1973).
Applying that test to this case, the hearing offi-
cer credited Sewell's version of the facts surround-
ing his layoff in July and relied on the statement by
Jack Dorfman that Sewell might return to work in
1 or 2 weeks to find that Sewell had a reasonable
expectation of recall.
In making this finding, the hearing officer dis-
missed the Employer's financial argument, dis-
counting it as inconclusive and unpersuasive and
rejecting the Employer's contention that the de-
creasing sales and net income necessitated the
layoff of Sewell. The hearing officer further ques-
tioned the timing of the discharge, 3 months after
Sol-Jack's accountant specifically recommended
Sewell's layoff, and immediately following a 2-
week plant shutdown.
We disagree with these findings.2 When the ob-
jective factors involved indicate a laid-off employ-
2 The Employer has excepted to some of the hearing officer's credibil-
ity findings The Board's established policy is not to overrule a hearing
officer's credibility determinations unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Connor Trad-
ing Co, 188 NLRB 263, 264 fn 4 (1971), Coca-Cola Bottling Co, 132
NLRB 481 , 485 (1961 ) We find no basis for reversing the credibility
findings in this case
286 NLRB No. 113
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ee had no reasonable expectancy of recall, vague
statements by the employer about the chance or
possibility of the employee being hired will not
overcome the totality of the evidence to the con-
trary. E.g., S & G Concrete Co., 274 NLRB 895,
897 (1985); Foam Fabricators, 273 NLRB 511, 512
(1984); Tomadur, Inc., 196 NLRB 706, 707 (1972).
This is particularly so when any possible sugges-
tion of intent to recall is firmly disavowed by the
date of the election and there is no claim that the
employer was converting an intended temporary
layoff to a permanent one for unlawful reasons.3
In this case, the record indicates that Sewell's
discharge was due to the deteriorating financial
condition of the Company and the lack of work
available for Sewell.4 Declining sales and rising
labor costs left the Employer little choice but to
lay off Sewell. There was little need for a third
employee with Sol-Jack's shrinking product
market. This is clearly illustrated by the lack of
overtime worked by the remaining employees after
Sewell's layoff and Sewell's own testimony that he
made sure he had enough work by taking his time
and not rushing.5
The remaining objective factors also provide
little basis to support the hearing officer's conclu-
sion . There has been no history of seasonal and cy-
clical layoffs in the Employer's past record, nor
any policy or practice of recalling laid-off employ-
ees. Thus it would be difficult to determine the
Employer's future plans.
An equivocal statement of the kind Dorfman
made here-which is inconsistent with the clear
statement on the day of the election and which, at
s No one asserts that the General Counsel issued an unfair labor prac-
tice complaint with respect to Sewell 's layoff.
4 We find the hearing officer erred in not thoroughly considering the
financial information introduced by the Employer . Although this infor-
mation was not introduced in documentary form, it was uncontroverted
and should have been fully considered
5 The hearing officer found the lack of overtime inconclusive , relying
in part on the testimony of Reliance employee Johnson, who stated that
he and two other employees did work at Sol-Jack formerly performed by
Sewell . We find Johnson 's testimony not dispositive of the issue present-
ed, i e , whether Sewell had a reasonable expectancy of employment
That other employees performed some of the work that Sewell had per-
formed does not necessarily mandate a conclusion that Sewell had a rea-
sonable expectancy of employment . It does not follow that simply be-
cause some of the duties formerly carried out by a laid-off employee are
assumed by those remaining , that the laid-off employee 's future services
are required When, as here, no new employees are hired and the remain-
mg ones are able to perform their own and additional work without
needing to work overtime, an inference may properly be drawn that the
laid-off employee will not be recalled In any event, the accuracy of
Johnson's claim that without working overtime , he worked 4-5 hours per
day doing Sol-Jack work, in addition to his regular work at Reliance, is
subject to serious question . Either Johnson worked less than half of an 8-
hour day at Reliance or he was mistaken about the amount of daily
working hours he spent at Sol-Jack . In this regard , we note the testimony
of Shirley Calvin that Johnson spends an average of 4-5 hours a week at
Sol-Jack Thus , although we do not disturb the hearing officer 's apparent
credibility finding, in favor of Johnson , we find Johnson 's testimony has
little or no bearing on the issue before us
best, expresses a possibility more likely expressed
to lend hope to the laid-off employee than to give
a realistic assessment of his being recalled to
work-does not, without more, provide an ade-
quate basis for concluding that an employee had a
reasonable expectancy of recall. In this case, the
other objective factors, such as the Employer's fi-
nancial condition, the absence of any prior history
of layoffs, and the indeterminate nature of the Em-
ployer's future plans together outweigh Jack Dorf-
man's statement to Sewell that he might be back to
work in I or 2 weeks.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for United Steelworkers of
America, Upholstery Division, Local Union 404-U
and that it is not the exclusive representative of
these bargaining unit employees.
APPENDIX
Hearing Officer's Report on Challenged Ballot
FINDINGS OF FACT
The Employer challenged the ballot of Rodney Sewell
on the ground that he was permanently laid off on July
18, 1986, with no reasonable expectation of recall. The
Petitioner contends that Sewell was a regular employee
who was temporarily laid off.
The Employer, Sol-Jack Company (herein Sol-Jack) a
partnership owned jointly by Sol Sauls and Isadore
"Jack" Dorfman, is a wholesale service company en-
gaged in the quilting business at its facility located at
2018 East Willard Street, Philadelphia, Pennsylvania. Re-
liance Bedding Corp. (herein Reliance) is a Pennsylvania
corporation engaged in the manufacture of bedding at its
facility at 3263 Emerald Street, Philadelphia, Pennsylva-
nia. The sole stockholders of Reliance are Sauls and
Dorfman. Sometime in 1979, Sol-Jack was formed by
Sauls and Dorfman to provide quilting for Reliance and
other companies. Sol-Jack is located in a building about
50 feet away from Reliance's facility. More than ninety
percent of the quilting manufactured by Sol-Jack is used
by Reliance.
Rodney Sewell was employed by Sol-Jack in May
1984, as a helper. Sewell was also hired to learn to oper-
ate the quilting machines. From the time Sewell was
hired till the time of his layoff on July 18, 1986, Sewell's
duties basically remained the same. His duties included
loading and unloading trucks, delivering quilted panels to
the Sewing Room at Reliance, putting material on Cal-
vin's3 machine, helping Calvin run the machine, stocking
materials, sweeping the work area, bagging and loading
trash and learning how to cut and measure mattress
panels and operate the quilting machines.
3 Shirley Calvin is a quilting machine operator employed by Sol-Jack.
SOL-JACK CO. 1175
Sewell was laid off on Friday , July 18 , 1986 . Accord-
ing to Sewell , Jerry Dorfman , current supervisor for Sol-
Jack and Reliance and the son of Jack Dorfman, told
Sewell he was laid off for lack of work . Sewell then
went to see Jack Dorfman to ask why he was laid off.
Jack Dorfman told Sewell it was for lack of work and
that Sewell might be back to work in one or two weeks.
Sewell claims that it wasn 't until he came to vote on
August 12 , 1986 , that he was told that he was perma-
nently laid off. The Employer asserts that Jerry Dorfman
told Sewell he was laid off due to the Company 's finan-
cial condition and lack of business . Sewell then asked
Jerry Dorfman how long the layoff would be and Jerry
Dorfman responded that the Company had no plans of
calling Sewell back . Sewell then went to Jack Dorfman,
reporting that Jerry Dorfman had just laid him off. Jack
Dorfman told Sewell that he was laid off and that Sol-
Jack didn't have a need for three people.
I credit Sewell 's version of the facts surrounding his
layoff and find the Employer 's contention that Sewell
was permanently laid off on July 18 , 1986 unpersuasive. I
found Sewell 's testimony straightforward and to the
point while Jack Dorfman 's testimony appeared less than
forthright . Jerry Dorfman appeared nervous and hesi-
tant , especially when asked to recount his July 18, 1986
conversation with Sewell . Thus , I find that on July 18,
1986, Sewell was told by Jerry Dorfman that he was laid
off for lack of work and when Sewell questioned Jack
Dorfman about his layoff Sewell was told that he might
be recalled in one or two weeks . I discredit Jerry Dorf-
man's testimony that he told Sewell the Company had no
plans to call Sewell back from his layoff . The following
facts support this finding.
The Company claims that the decision to permanently
lay off Sewell was based on several factors . One such
factor was Sol-Jack 's financial situation . Jack Dorfman
testified that during the month of April 1986 , the Com-
pany's account reviewed Sol-Jack's 1985 financial state-
ment, pointing out that payroll had been steadily increas-
ing, stating that this was not a good trend and suggesting
a cut in labor as Sol -Jack's only alternative. Jack Dorf-
man also testified that Sol-Jack 's, total sales for 1983,
1984, and 1985 were $203,203 , $ 126,863 , and $104,611,
respectively . Net income for Sol-Jack was approximately
$2,000 in both 1983 and 1984 with a net loss of $6,000 in
1985. The financial statements from which the above fig-
ures were gleaned were not placed in evidence.
The Company attempts to paint a bleak picture of Sol-
Jack's financial condition . However, I question why Sol-
Jack, a company in such dire financial straits , would wait
approximately three months, after specifically being told
by its accountant to `cut labor,' to terminate the employ-
ment of Rodney Sewell . Sol-Jack offers that June is tra-
ditionally its busy season and that is why it waited until
July 18 , 1986 , to permanently lay off Sewell . That does
not explain why the Company waited until after a two
week vacation4 to lay off Sewell . I find it unlikely, given
4 Sol-Jack had its customary plant shutdown dung the first two
weeks m July 1986
Sol-Jack 's financial condition as presented on the record
coupled with the recommendation made by its account-
ant in April 1986, that Sol-Jack would not have acted in
a more expedient manner to cut costs by quickly sever-
ing its employment relationship with Sewell . I also find
it noteworthy that the Employer did not present any fi-
nancial information for 1986 , the time period most rele-
vant to Sewell 's lay off.
The Employer attempts to equate a decrease in gross
sales with a decrease in the volume of business but failed
to support this with any evidence . It does not automati-
cally follow that a decrease in gross sales means a de-
crease in the volume of business , i.e., lower cost or a de-
crease in the price of the produce could lead to a lower
gross sales without necessarily affecting the volume of
business . In fact, the uncontradicted testimony of the
Employer's prior supervisor Charles Harrington is that
Jack Dorfman and he discussed the possibility of starting
a night shift at Sol-Jack in 1985-at a time when gross
sales were decreasing . Nevertheless , the trend in decreas-
ing total sales and net income began in 1983 and 1984,
long before Sewell's layoff occurred . Furthermore, gross
sales decreased dramatically from 1983 to 1984 , the year
in which Jack Dorfman hired Rodney Sewell.
Another factor which the Employer maintains led to
Sewell's permanent layoff was a lack of work. Jerry
Dorfman , the son of Jack Dorfman , became supervisor
of Sol-Jack and Reliance in late May 1986. Both Jack
and Jerry Dorfman testified that after two or three days
on the job , Jerry recommended to Jack that there was
no need for a third person at Sol -Jack . Jerry Dorfman,
by his own admission, claimed to have spent about an
hour or so a day (Tr. 33 , 34) at Sol-Jack during his first
few weeks as supervisor and less time after that. Jack
Dorfman claims that he had long questioned the need for
a third employee at Sol-Jack and states on pages 50 and
51 of the transcript that the normal complement of em-
ployees at Sol-Jack was two. However , the record does
not support this assertion.
In 1979, Sol-Jack employed only one employee, a
quilting machine operator. A second quilting machine
operator was hired in 1981 . There are two quilting ma-
chines at Sol-Jack . A third employee who, according to
Jack Dorfman was hired in 1982 or 1983 , was caught
sleeping upstairs and was terminated prior to the arrival
of Harrington. Harrington was hired in January 1983, to
supervise employees at both Sol-Jack and Reliance.
Shortly after being employed, Harrington saw a need for
a third employee at Sol-Jack and spoke of this to Jack
Dorfman . Dorfman agreed with Harnngton's assessment
and gave his approval for the hiring of a third employee.
Shirley Calvin was hired by Sol-Jack in late 1983 or
early 1984 as a helper . Calvin was also trained in the op-
eration of the quilting machines . In May 1984, Sewell
was hired by Dorfman to replace Calvin who had been
promoted to a vacant machine operator position . Sewell
like Calvin , was hired as a helper and to learn how to
operate the quilting machines . So, while Jack Dorfman
states that Sol-Jack 's normal complement of employees
was two , Sol-Jack has employed a third employee on an
almost continuous basis since about 1982 or 1983. Thus,
1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the normal work complement at Sol-Jack for the past
several years appears to be three employees rather than
two.
The Company offers a summation of overtime hours
worked by Sol-Jack employees from July thru Septem-
ber for the years 1985 and 1986 as evidence that a third
person was not required at Sol -Jack . Employer's Exhibit
1 shows that there are less regular hours as well as over-
time hours being worked at Sol -Jack since Sewell was
laid off. However, it logically follows that total hours as
well as overtime hours would be reduced following the
reduction of one-third of the workforce. I find these fig-
ures inconclusive and meaningless for another reason as
well. The job duties previously performed by Sewell are
not being performed by Calvin as well as by Reliance
employees. Accordingly, Willie Johnson, a current Reli-
ance employee, testified that he, and two other Reliance
employees, Juan Vasquez, and Rob , are
performing the duties at Sol-Jack which were performed
by Sewell. Johnson testified that he began doing work at
Sol-Jack only after Sewell was laid off. I am favorably
impressed with the testimony of Willie Johnson since he,
as a current Reliance employee , has little to gain from
his involvement in these proceedings and I credit his tes-
timony . For all of the reasons stated above, I find the
Employer's contention that Sewell was laid off for lack
of work unsupported by the facts.
Jack Dorfman alluded to the fact that the Company's
disillusionment with Harrington led Dorfman to question
whether there really was enough work for Sewell. Har-
rington, who has recommended Sewell for the helper po-
sition vacated by Calvin, was fired from Sol-Jack and
Reliance in May 1986, for dishonesty.5 However, it was
Dorfman who hired Sewell and, as was pointed out
above, a third employee has been employed by Sol-Jack
since about 1982, before Harrington was employed by
Sol-Jack and Reliance. Again, if Dorfman questioned the
need for Sewell at the time of Harrington 's discharge in
May 1986, 1 find it unreasonable that he would have
waited almost two months to permanently lay off Sewell.
I believe the Employer's suggestion that Sewell was laid
off on July 18 , 1986 because of his association with Har-
rington to be a smokescreen.
There is no prior history of layoffs at Sol-Jack. How-
ever, there have been layoffs at Reliance . Harrington tes-
tified that Keith Barrett was temporarily laid off from
Reliance for lack of work. Barrett was recalled, after a
"short period" (Tr. 258).6 Jerry Dorfman testified that
Pearl Grimes was laid off from Reliance in September
1986. Jerry Dorfman told Grimes that she was laid off
for lack of work and that the layoff was permanent be-
cause her job was not needed . Grimes was a sewing op-
erator. Jack Dorfman testified that Grimes was laid off
for lack of work and a personality conflict.
The entitlement of a laif-off employee to vote in a rep-
resentation election depends on whether the employee
had a reasonable expectancy of recall in the near future.
Higgins, Inc., 111 NLRB 797. In analyzing this issue, the
Board examines such factors as the past experiences of
the Employer, the Employer's future plans, and the cir-
cumstances of the layoff, including what employees were
told as to the likelihood of recall. Atlas Metal Spinning
Co., 266 NLRB 180; High Energy Corporation, 259
NLRB 761. Applying this analysis to the matter at hand,
I fmd that Rodney Sewell, on the date of the election
could reasonably have expected to be recalled by the
Employer in the near future. I find that at the time of his
layoff on July 18, 1986, Sewell was told he might be
back to work in one or two weeks. As detailed above,
the duties previously performed by Sewell are currently
performed by Calvin and various Reliance employees
and the Employer's assertion that its poor financial con-
dition is the reason for Sewell 's permanent layoff is
highly suspect. Furthermore, the record is void of any
history of permanent layoffs solely for lack of work,
either at Sol-Jack or at Reliance. As the election at Sol-
Jack occurred less than four weeks after Sewell was laid
off, I find that Sewell had a reasonable expectancy of
recall and is eligible to vote. Acme Industrial Company,
227 NLRB 249; D. H. Farms Co., 206 NLRB 111, 113.
Having found that Rodney Sewell was temporarily
laid off and had a reasonable expectation of recall on the
date of the election, I recommend that the challenge to
his ballot be overruled.
Recommendation
Based on the foregoing , I recommend that the chal-
lenge to the ballot of Rodney Sewell be overruled and
that this ballot be opened and counted and that the ap-
propriate certification issue.
5 The Employer asserts that Harrington was fired for dishonesty. I am a Harnngton's testimony was not contradicted and I, therefore, credit
not making any finding on this issue. it