Stamping Specialty Co., Inc.

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 703 (N.L.R.B. 1989)

STAMPING SPECIALTY CO.
Stamping Specialty Co., Inc . and Chauffeurs, Team-
sters, Warehousemen and Helpers of America,
Local 135 a/w International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America , AFL-CIO'. Cases 25-
CA-17687 and 25-CA-17791
May 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On August 8, 1986, Administrative Law Judge
Donald R. Holley issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs, the Respondent filed a
brief in response to the General Counsel's excep-
tions, and the General Counsel filed a brief in sup-
port of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
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,2 and
conclusions as modified, to modify his remedy, 3
and to issue a new Order and notice.
1. We agree with the judge that the Respondent
violated Section 8(a)(5) and (1) by failing to timely
notify the Union of its September 1985 decision to
lay off unit employees, and by failing to provide
' On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO The caption has been amended to reflect that
change
2 The Respondent and the General Counsel have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
3 The General Counsel excepts to the judge's failure to provide a
meaningful remedy for the Respondent's unfair labor practices including,
inter alia, his failure to order an extension of the certification year We
agree that an extension is warranted Thus, the Union was certified as the
exclusive representative of employees in the following unit on June 28,
1985
All production employees, including shop and toolroom employees,
employed at our 2401 N Ritter Avenue, Indianapolis, Indiana, loca-
tion, BUT EXCLUDING all office clerical employees, all profes-
sional employees, and all guards and supervisors as defined in the
Act
Negotiations for a contract commenced in August 1985 Within weeks of
initial bargaining, the Respondent unlawfully laid off unit employees for
economic reasons without notice to or bargaining with the Union There-
after, the Respondent further undermined the bargaining relationship by
not affording the Union an opportunity to bargain over the effects of the
Respondent's lawful discontinuance of its stamping operation on Decem-
ber 2
In these circumstances, in order to fully effectuate the policies of the
Act, and to provide the parties with a meaningful opportunity to bargain
in good faith for a collective-bargaining agreement, we have modified the
recommended Order to incorporate a provision extending the certifica-
tion year for an additional year following the Respondent's commence-
ment of good-faith bargaining
703
the Union with an opportunity to bargain over the
layoff decision and its effect on unit employees. As
recently explained by the Board in Lapeer Foundry
& Machine, 289 NLRB (1988), an employer has a
statutory obligation to bargain about an economi-
cally motivated decision to lay off employees.
The judge found that the Respondent's decision
to lay off employees was economically motivated
and turned on labor costs. We agree. Mark Tomlin-
son, the Respondent's president, testified that be-
tween September 2 and 4, 1985, he decided to lay
off unit employees because of a decline in stamping
orders. The layoff was not the result of the Re-
spondent's decision to change the nature or scope
of its business; rather, it was in response to an eco-
nomic problem.
The judge further found, and we agree, that the
Respondent did not notify the Union of its layoff
decision until it was a fait accompli. When the Re-
spondent mentioned a layoff to the Union on Sep-
tember 4, it had already finalized its layoff plans.
Moreover, the layoff was imminent; September 5
was the last or next-to-last working day for em-
ployees before the layoff. Although the Union did
not promptly request bargaining over the effects of
the layoff, a request clearly would have been
futile.4 Further, the Respondent has not demon-
strated any compelling economic circumstances
that justify its taking action before giving the
Union an opportunity to bargain. Cf. Aquaslide `N'
Dive Corp., 281 NLRB 219 (1986). Accordingly, we
adopt the judge's finding that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by laying
off unit employees on September 9, 1985, without
notice to or bargaining with the Union concerning
the layoff decision and the effects of that decision.
2. We further find that the Respondent violated
Section 8(a)(5) and (1) by failing to bargain with
the Union over the effects of its decision to lay off
unit employees in December 1985.5
In Otis Elevator Co., 269 NLRB 891 (1984), the
Board held that management decisions that do not
turn on labor costs but that affect the basic direc-
tion or nature of a business are excluded from the
scope of mandatory bargaining under Section 8(d).
Moreover, in First National Maintenance v. NLRB,
452 U.S. 666, 686 (1981), the Supreme Court ruled
4 Accordingly, we reject the Respondent's argument that the Union
waived any bargaining rights by not objecting to the layoff or requesting
bargaining until it filed unfair labor practice charges on December 31,
1985
5 The complaint alleged that the Respondent violated Sec 8(a)(5) and
(1) by failing and refusing to bargain over the decision to lay off or dis-
charge employees on December 2 and the effects of that decision The
judge did not rule on these allegations, finding that the layoff was a sub-
terfuge to rid the Respondent of those remaining employees who sup-
ported the Union, in violation of Sec 8(a)(3) and (1) The judge's 8(a)(3)
and (1) findings are discussed infra
294 NLRB No. 56
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that an employer's decision to close down part of
its business was not part of Section 8(d)'s "terms
and conditions" that required bargaining. However,
both Otis Elevator and First National Maintenance
made clear that employers are obligated to bargain
over the effects on unit employees of management
decisions that are not themselves subject to the bar-
gaining obligation.
The judge found that, beginning in late 1984, the
Respondent's stamping business began declining
due to later and smaller customer orders and the
loss of some accounts. Additionally, in May 1985,
the Respondent received word from its major
stamping customer, A M General, that it would
lose its account unless the Respondent instituted
new inspection requirements. After concluding that
it could not afford to comply with A M General's
requirements, the Respondent notified this custom-
er of that fact in November 1985. When A M Gen-
eral canceled its account, the Respondent decided
to reorganize its operation by concentrating on the
manufacture of oilers and by discontinuing its
stamping operation except for the highly automat-
ed "Mr. Button" account and, as needed, for its
own oiler equipment. On November 27 the Re-
spondent wrote its customers that it was immedi-
ately phasing, out its stamping business and that it
would not accept any new orders. The Respondent
notified the Union of its decision to discontinue its
contract stamping operations on December 2, the
same date on which it terminated its remaining
work force except for the shop foreman, toolmak-
er, and office employees.'
The Respondent's decision to discontinue its con-
tract stamping operations on December 2 resulted
from the deteriorating demand for its stamping pro-
duction and the loss of its major customer. It was
therefore a decision to discontinue a product line
and there is no evidence that the decision turned
on the labor costs of the stamping shop. Thus, the
decision to reorganize its operations, causing the
December 2 layoff of its employees, did not give
rise to a bargaining obligation. Otis Elevator, supra.
The Respondent, however, was still required to
provide the Union with an opportunity to bargain
over the effects of its layoff decision. Because the
Respondent did not notify the Union of the layoff
until it had occurred, it failed to, afford the Union a
reasonable opportunity for effects bargaining in
violation of Section 8(a)(5) and (1). See, e.g., Inter-
systems Design Corp., 278 NLRB 759 (1986).
8 As found by the judge, " Mr Button" is a highly automated press that
uses raw materials supplied by customers to produce campaign buttons
One employee operates the "Mr Button" press
The employees affected by this December 2 layoff were Joe and
Harold Bowling and Betty Arms
3. Contrary to the judge, we find -that 'the Re-
spondent did not violate Section 8(a)(3) and (1) by
laying off employees Joe and Harold Bowling and
Betty Arms on December 2.
The judge found that the General Counsel estab-
lished a prima facie case that union activity was a
motivating factor in the December layoff of Arms
and the Bowling brothers and that the Respondent
failed to rebut this prima facie case. Relying on
evidence outside the 10(b) period, the judge found
that the Respondent knew that Betty Arms sup-
ported the Union and that it had a "marked animus
against the Bowling brothers because of their sup-
port of the Union." The judge further found that
Arms and the Bowling brothers' were capable of
performing ,the oiler and stamping work that re-
mained after' December 2, and that there was ade-
quate work' to gainfully employ them. The judge
rejected the Respondent's claims that Robert
Grubbs ' and Robert Crabtree performed all the
oiler and "stamping work after December 2 and
concluded that the Respondent must have contract-
ed out oiler work after the layoff. Finally, the
judge discounted the Respondent's claims that
Grubbs' was retained because of his skill as a die-
maker, noting that virtually all of Grubbs' time
after December 2 was spent on oiler work at
which Joe Bowling excelled. The judge-similarly
rejected the Respondent's argument that it lawfully
could retain Foreman Crabtree over Arms and the
Bowlings, stating that the "Respondent cannot
rebut his prima facie proof of violation of Section
8(a)(3) of the Act by showing that it has engaged
in conduct that would appear to have violated Sec-
tion 8(a)(5) of the Act."
The Respondent excepts, claiming that it decided
to retain Grubbs because he was capable of per-
forming oiler work and because his skills as a die-
maker were vastly superior to those of Arms and
the Bowling brothers. The Respondent argues that
it cannot effectively operate without a diemaker
and that the judge's suggestion that it contract out
die work is not a cost-efficient alternative. The Re-
spondent also claims that when, as here, stamping
work is available for only one individual, the Act
does not mandate retention of a bargaining unit
employee in preference to a working supervisor.
Finally,, the Respondent contends that Grubbs and
Crabtree performed all of its oiler and stamping
work after December 2 and that the judge's sub-
contracting findings were unsupported by the
record.
For the following reasons, we find merit in the
Respondent's exceptions and conclude that it has
rebutted the General Counsel's prima facie case
STAMPING SPECIALTY CO
under Wright Line8 by establishing that it would
have laid off Arms and the Bowlings even in the
absence of their union activity.
Initially, we note that the record does not sup-
port the judge's conclusions that approximately
three employees were required to perform oiler
work after December 2. Although 27 to 28 staff
hours a day were required for oiler work prior to
September 9, the uncontradicted testimony of Mark
Tomlinson discloses that Joe Bowling performed
95 percent of the oiler work after that date with
limited assistance from Foreman Crabtree. And,
contrary to the judge's findings, there is no evi-
dence that any of the oiler work performed by Joe
Bowling or Crabtree in the fall of 1985 was con-
tracted out after December 2.9 Nor does the evi-
dence refute the Respondent's claim that, after De-
cember 2, Grubbs performed all of its oiler and die
work and Crabtree performed its remaining stamp-
ing work, including "Mr. Button."
Additionally, the Respondent offered nondis-
criminatory, business justifications for retaining em-
ployee Grubbs. Tomlinson testified that a diemaker
was vital to its operation because if a die breaks it
must be repaired or replaced or parts cannot be
made. Tomlinson asserted that a diemaker would
be the last person he would let go and, further,
that Grubbs was the only employee capable of per-
forming die work that the Respondent required.
Indeed, while Grubbs and the Bowlings, to varying
degrees, all sharpened and/or repaired dies, only
Grubbs made parts for broken dies after February
1984. Although Joe Bowling testified that he had
also made die parts, he had not done so since 1972,
long before Tomlinson's tenure as Respondent's
president. Under these circumstances, and particu-
larly as the judge found that, in recent years, layoff
selection was based on employee skill rather than
seniority, we find that the Respondent established
that it would have retained the less senior Grubbs
over Arms and the Bowlings, regardless of any an-
tiunion sentiments. In so holding, we reject the
judge's finding that, as dies are infrequently made,
the Respondent should contract out this work and
assign oiler duties to the more skilled oiler, Joe
Bowling. We will not substitute our judgment for
the Respondent's on a record that establishes the
Respondent retained an employee capable of per-
forming all of its required oiler and die work in
8251 NLRB 1083 (1980), enfd 662 F2d 899 (1st Cir. 1981), cert
denied 455 U S 989 (1982), approved in NLRB v Transportation Manage-
ment Corp, 462 U S 393 (1983)
0 Although the Respondent apparently refused the Union's December
6, 1985 request for the names of individuals and companies performing
work previously undertaken by unit employees, the complaint does not
allege an 8(a)(5) refusal to provide information or unlawful subcontract-
ing, nor did the General Counsel contend that the Respondent contracted
out work to cause or exacerbate the December layoff
705
preference to employees it reasonably determined
could not satisfy its diemaking requirements.
Finally, the retention of Foreman Crabtree does
not violate the Act. The Respondent required only
two employees to meet its production needs after
December 2. In addition to Grubbs, the Respond-
ent selected Crabtree, who admittedly was capable
of performing the remaining stamping work. Fur-
ther, Crabtree was retained over Arms and the
Bowling brothers because he was the Respondent's
supervisor who, according to it, had "exhibited a
willingness to accept responsibility and . . . dem-
onstrated his all-around talents in a shop." Because
there is nothing inherently unlawful in retaining a
supervisor to perform unit work in these circum-
stances, and because the Respondent established
that it would have retained Crabtree notwithstand-
ing any antiunion animus it harbored against laid-
off employees, we find that the Respondent has not
violated Section 8(a)(3) and (1) by retaining Crab-
tree rather than the laid-off unit employees.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
4.
"4. By failing to give notice to the Union about
the December 2, 1985 layoff and to afford the
Union an opportunity to bargain about the effects
of that layoff on employees, the Respondent has
violated Section 8(a)(5) and (1) of the Act."
AMENDED REMEDY
Substitute the following for the second para-
graph.
"Having found that the Respondent violated
Section 8(a)(5) and (1) of the Act by laying off em-
ployees on September 9, 1985, without giving the
Union advance notice or an opportunity to bargain
over the layoff decision or its effect on unit em-
ployees, we shall require the Respondent to reim-
burse laid-off employees for backpay they normally
would have received from September 9 until De-
cember 2, 1985,10 less any net interim earnings,
and computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest
to be computed in the manner prescribed in New
Horizons for the Retarded.' 1
10 Although the remedy for this Sec 8(a)(5) decision-making violation
traditionally includes reinstatement of the laid-off employees, we find that
the Respondent's lawful, intervening act of discontinuing its stamping op-
erations precludes the reinstatement of the laid-off employees and tolls
their backpay liability as of December 2, 1985
11 283 NLRB 1173 (1987) Interest on and after January 1, 1987, shall
be computed at the "short-term Federal rate" for the underpayment of
taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U S C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"Having found that the Respondent, violated
Section 8(a)(5) and (1) by failing to notify the
Union and afford it an opportunity to bargain over
the effects of its decision to discontinue its stamp-
ing operation, we shall require the Respondent to
pay backpay to its employees laid off on September
9 and December 2, 1985, in the manner required
under Transmarine Navigation Corp., 170 NLRB
389 (1968). See Litton Business Systems, 286 NLRB
817 (1987). See also Fast Food Merchandisers, 291
NLRB 897 (1988). Thus, the Respondent shall pay
all affected employees backpay at the rate of their
normal wages when last in the Respondent's
employ from 5 days after the date of this Decision
and Order until the occurrence of the earliest of
the following conditions: (1) the date the Respond-
ent bargains to agreement with the Union on those
subjects pertaining to the effects of its December 2,
1985 discontinuation of stamping operations on its
employees; (2) a bona fide impasse in bargaining;
(3) the failure of the Union to request bargaining
within 5 days of this Decision and Order or to
commence negotiations within 5 days of the Re-
spondent's notice of its desire to bargain with the
Union; or (4) the subsequent failure of the Union to
bargain in good faith; but in no event shall the sum
paid to any of these employees exceed the amount
he would have earned as wages from the dates on
which he was laid off or terminated to the time he
was recalled or secured equivalent employment
elsewhere, or the date on which the Respondent
shall have offered to bargain, whichever occurs
sooner; provided, however, that in no event shall
this sum be less than these employees would have
earned for a 2-week period at the rate of their
normal wages when last in the Respondent's
employ.
"Having found that the Respondent engaged in
refusals to bargain within the meaning of Section
8(a)(5), almost from the beginning of the certifica-
tion year, we shall extend certification for an addi-
tional year from the time that the Respondent com-
mences to bargain in good faith. Mar-Jac Poultry
Co., 136 NLRB 785, 789 (1962)."
ORDER
The National Labor Relations Board orders that
the Respondent, Stamping Specialty Co., Inc., Indi-
anapolis, Indiana, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Unilaterally laying off unit employees with-
out providing the Union with notice and an oppor-
tunity to bargain about the layoff decision and its
effects.
(b) Failing and refusing to bargain with the
Union over the effects of its decision to discontinue
its stamping operation on unit employees.
(c) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with Chauffeurs, Team-
sters , Warehousemen and Helpers of America,
Local 135, affiliated with the International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO as the exclusive
representative of employees - in the following unit:
All production employees, including shop and
toolroom employees, employed at our 2401 N.
Ritter Avenue, Indianapolis, Indiana location;
BUT EXCLUDING all office clerical employ-
ees, .all professional employees, and all guards
and, supervisors as defined in the Act.
(b) On the Union's request, bargain with it over
the effect on unit employees of its decision to dis-
continue its stamping operation.
(c) Pay the employees laid off on September 9
and December 2, 1985, their normal wages for the
periods set forth in the amended remedy portion of
this Decision and Order.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its Indianapolis, Indiana facility copies
of the' attached notice marked "Appendix."12
Copies of the notice, on forms provided by the Re-
gional Director for Region 25, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
STAMPING SPECIALTY CO 707
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain
with Chauffeurs, Teamsters, Warehousemen and
Helpers of America, Local 135, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL-CIO as the exclusive bargaining representa-
tive of our employees in the following appropriate
unit:
All production employees, including shop and
toolroom employees, employed at our 2401 N.
Ritter Avenue, Indianapolis, Indiana location;
BUT EXCLUDING all office clerical employ-
ees, all professional employees, and all guards
and supervisors as defined in the Act.
WE WILL NOT unilaterally lay off employees
without providing the Union with notice and an
opportunity to bargain about the decision to lay off
employees, where required by law.
WE WILL NOT fail or refuse to bargain with the
Union over the effects of our decision to discontin-
ue our stamping operation on unit employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed employees by
Section 7 of the Act.
WE WILL, on request, bargain in good faith with
the above-named labor organization concerning the
effects of our decision to discontinue our stamping
operation.
WE WILL make whole those employees laid off
on September 9 and December 2, 1985, for any loss
of pay suffered as a result of our unlawful conduct,
plus interest.
STAMPING SPECIALTY CO., INC.
Steve Robles, Esq., for the General Counsel.
George Baker, Esq., Indianapolis , Indiana , for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY , Administrative Law Judge. On
original charges filed in Cases 25-CA-17687 and 25-CA-
17791 on 12 December 19851 and 31 January 1986, re-
spectively, the Regional Director for Region 25 of the
National Labor Relations Board issued an order consoli-
dating cases, consolidated complaint and notice of hear-
ing on 28 February 1986, which alleged that Stamping
Specialty Co., Inc. (Respondent) had engaged in and is
engaging in conduct which violates Section 8(a)(1), (3),
and (5) of the National Labor Relations Act (the Act).
By timely answer, Respondent denied it had engaged in
the unfair labor practices alleged in the complaint.
Thereafter, on 16 April 1986, the Region issued an
amendment to the complaint which alleged an additional
violation of Section 8(a)(1) of the Act, and deleted para-
graphs 5(a), (b), and (c) of the original complaint Re-
spondent filed timely answer denying it had engaged in
the conduct described in said amendment to complaint.
The case was heard in Indianapolis, Indiana, on 28 and
29 April 1986. All parties appeared and were afforded
full opportunity to participate Subsequent to the close of
the hearing, counsel for the General Counsel and counsel
for Respondent filed posthearing briefs which have been
carefully considered.2 On the entire record, and from my
observation of the witnesses who appeared to give testi-
mony, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent maintains its principal office and place of
business in Indianapolis, Indiana, where it is engaged in
the manufacture, distribution, and sale of metal stampings
and lubricating devices. During calendar year 1985, it
sold and shipped to customers located outside the State
of Indiana, and purchased from suppliers located outside
said State products, goods, and materials valued, in both
instances, in excess of $50,000. 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.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview of the case
Respondent was created in 1945 by Ronald Tomlinson
and William Hopkins, who were both trained tool and
die makers. Initially, the firm manufactured stamped
metal parts for customers who subsequently utilized such
parts in the assembly of their own products. Around
1950, the firm commenced to manufacture oilers which
are utilized by customers to lubricate both sides of sheets
of metal to reduce friction when the sheets are later cut
in presses. The market for stampings, which are custom
parts made to the customer's specifications, is regional,
1 All dates herein are 1985 unless otherwise indicated
2 Counsel for the General Counsel included several motions in his brief
which urge me to reconsider certain evidentiary rulings made during the
hearing The rulings are reaffirmed and the motions are denied
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
while the market for for oilers and accessories (stands,
pumps, and wiper blades) is national.3
Mark Tomlinson, Respondent's president and manager
since 1980, worked at the facility part time as a machine
operator while attending school. After graduation from
college, he engaged in pursuits unrelated to the stamping
business . Two years after his father experienced a dis-
abling stroke in 1973, he joined the business. ' `
Through the years, Respondent' s business prospered.
During its fiscal year 1983,4 its net profit was approxi-
mately $50,000. During fiscal years 1984-and 1985, the
net profits were approximately $300,000 and $150,000,
respectively.
In April 1985, Mark Tomlinson (Tomlinson) met with
his employees to inform them their efforts had caused
Respondent to have a good year. During the meeting,
Tomlinson indicated he might install closed circuit tele-
vision cameras • in the shop. A short time later, in late
April, Joe Bowling, the most senior employee in the
shop, contacted Local 135 regarding employee represen-
tation . On 1 May, the employees met at employee
Eugene Gann 's home and Gann, Joe Bowling, Harold
Bowling, Mike Bowling, Bobby Jones, and Richard
Plummer signed authorization cards. By letter dated 6
May, the Union notified Respondent Local 135 was or-
ganizing its employees and the six above-named employ-
ees had joined its organizing committee. A short time
later, employees Betty Arms and Shirley Collins signed
authorization cards. Joe Bowling asked the two remain-
ing employees, Robert Grubbs and Scott Barrier, to join,
but both indicated they did not desire union representa-
tion.", Thereafter, until a Board-supervised election was
held at the facility on 20 June, Grubbs and Barrier took
their lunch break in the office rather than with the em-
ployees. Additionally, the record reveals that at an em-
ployee meeting attended by Tomlinson and Respondent's
foreman, Robert Crabtree,6 Grubbs and Barrier made
their antiunion sentiments known. The Union won the
above-mentioned election by a vote of eight to two, and
was certified on 28 June. Joe Bowling served as the
Union's observer at the election. -
Tomlinson's feelings regarding unionization of his em-
ployees was expressed in the shop immediately after he
received the Union's 6 May letter. He exhibited the letter
to Joe Bowling and asked ". . . if he knew anything
about this." When J. Bowling indicated he did, Tomlin-
son stated: "I'll close this son-of-a-bitch. I'll turn it into a
warehouse. There is no fucking Teamsters union coming
in here and telling me how to run my business. You
know I have all the bucks I'll ever need, why did you do
it Joe?" After J. Bowling replied that Tomlinson belittled
9 The types of oilers and accessories manufactured by Respondent are
depicted in a pamphlet placed in the record as G C Exh 2
4 Respondent 's fiscal year is I November to 31 October
5 The record also reveals Grubbs and Barrier did not attend the three
or four meetings held for Respondent employees at the union hall during
the course of the organization campaign
6 Respondent does not dispute , and I find, that Tomlinson and Crab-
tree were, at times material , supervisors and agents of Respondent within
the meaning of Sec 2( 11) and (13 ) of the Act The General Counsel
moved in his brief that the complaint be amended to allege that Crabtree
was a supervisor and agent until 2 December 1985 only That motion,
which is opposed by Respondent, is denied as it is untimely
people and they did not like it, citing Bobby Jones as an
example, Tomlinson replied: "Yeah, I'll take 1''$obby
Jones, and if he's working here when he dies, He'll be
making the same dollar he is right now, I'll take part of
the business with me to California. I'love Santa Barbara.
The Union will do you no good anyway. All they'll do
is take your money."
Subsequently, in late May, Tomlinson received a letter
from A M General, a major customer, which urged him
to institute a quality control system if Respondent de-
sired to continue to retain A M General as a customer.
After placing a note on the letter, he left it on Joe Bowl-
ing's desk. The note indicated Tomlinson's continued dis-
pleasure with Joe and Harold Bowling , stating (G.C.
Exh. 10):
Joe & Harold
You guys seem to have all the answers around
here. Take care of this for me, will you? Or shall
we just ignore it. '
I'm busy with Union plans.
Mark
On 9 September, Respondentflaid off employees Arms,
Collins, Mike Bowling, Gann, Plummer, Jones, and Bar-
rier.7 Arms was later recalled on 21 October and worked
until 2 December. On the latter date Arms, Joe Bowling,
and Harold Bowling were terminated. None of the
named employees had been recalled when the hearing
was held in the instant case.
B. The Alleged 8(a)(1) Conduct
The complaint, as amended, alleges, and counsel for
the General Counsel contends, that Respondent, through
conduct of Tomlinson and Foreman Crabtree, engaged
in two independent violations of Section 8(a)(1) of the
Act during the months of September and November
1985. Crabtree is alleged to have engaged in violative
conduct in late September by informing "its laid off em-
ployees that Respondent had sufficient work available to
recall employees on layoff if it would only choose to do
so." Tomlinson is alleged to have engaged in violative
conduct by threatening plant closure in November be-
cause employees refused to bargain directly with Re-
spondent. I find both allegations to be without merit for
the reasons set forth below.
The Crabtree Comment
No evidence was offered which would reveal that any
Respondent official had any conversation with its laid-off
employees during the month of September . The evidence
relied on to support the allegation is Harold Bowling's
undenied claim that Foreman Crabtree informed him in
late September that there was enough work in the shop
for the people then in layoff to do if Mark Tomlinson
would call them back.
The General Counsel contends the above-described
Crabtree statement is coercive "in that it implies that,the
7 As indicated, infra, Barrier was recalled immediately to a' nonumt
office job
STAMPING SPECIALTY CO
employees laid off on September 9, 1985, were unneces-
sarily laid off, `and were being kept on layoff not due to
any genuine economic reasons or lack of work, but due
solely to their (perceived by Tomlinson) union support
and yes votes" (Br. 8). I find that Crabtree's observation
that there was, in his opinion, sufficient work in the shop
to justify recall of laid-off employees does not warrant
the sweeping inferences the General Counsel urges me to
make Instead, noting that no reference was made to the
reason for the 9 September layoff, and that union activi-
ties and union representation were not referred to when
the comment was made, I find Crabtree's statement to be
an innocuous comment which would not reasonably tend
to restrain, interfere with, or coerce employees in the ex-
ercise of their Section 7 rights. Accordingly, I recom-
mend that paragraph 5(b) of the complaint be dismissed.
The Tomlinson Conduct
Counsel for the General Counsel sought to prove that
Tomlinson threatened employees with plant 'closure be-
cause they would not deal directly with Respondent
through the testimony of employees Plummer, Harold
Bowling, and Joe Bowling A composite of their testimo-
ny and that given by Tomlinson is set forth below.
At some unstated time subsequent to the 9 September
layoff, Respondent received a repeat order for stampings
from Deflecto Corporation. Employee Barrier had run
the part when a quantity had been ordered previously.
The order under discussion was one which would pro-
vide approximately 3 weeks' work for one machine oper-
ator. Barrier was assigned to run the job and after he had
run it about a week or week and a half, the steward, Joe
Bowling, complained to" Business Representative
Trader.8 The matter was discussed during a negotiation
session held on 18 October, and Tomlinson reluctantly
agreed to recall the most senior employee on layoff,
Betty Arms, to run the job. Arms was recalled on 21 Oc-
tober and ran the job several days before she appeared in
the office to inform Tomlinson she was not capable of
running it. Tomlinson then went to the shop to discuss
the situation with Joe Bowling. During their discussion,
Tomlinson informed J. Bowling Arms was unable to op-
erate the machinery used to produce the Deflecto parts
and he asked if Bowling, as steward, would agree that
Barrier could run the order. Bowling informed him he
did not have the authority to make deals. Tomlinson ob-
served he was losing big bucks, and made some comment
to the effect that he was not going to call "no dumb
fucking truck driver to tell him how to run his business."
Tomlinson then asked, "what do we do? Close the fuck-
ing doors and go home?" Bowling replied that if that
was what he was suggesting he do, that's what he would
do. Tomlinson ended the conversation by telling Bowl-
ing he was a hell of a businessman.
8 Tomlinson and Barrier claimed during their testimony that Barrier
did not work on the order until after Betty Arms, third from the top in
seniority, was recalled to run the job on 21 October Harold and Joe
Bowling testified Barrier ran the job before Arms was recalled Trader
corroborated J Bowling's claim that the steward complained to him that
Barrier was running the job Finally, Tomlinson stated in a pretrial state-
ment that Barrier ran the job about a week and then Trader called to
complain I credit the Bowlings and Trader
709
Absent evidence that Tomlinson knew before he dis-
cussed the` Deflecto problem with Union Steward Bowl-
ing that the steward did not have the authority to permit
Respondent to utilize a nonunit employee to perform
bargaining unit work, I find Tomlinson did not attempt
to bargain directly with employees concerning the De-
flecto matter. Viewing the remarks made by Tomlinson
and Bowling in context, I find that Tomlinson did not
threaten plant closure if employees failed to deal directly
with Respondent in circumvention of the certified bar-
gaining agent. Accordingly, I recommend that paragraph
5(a) of the complaint be dismissed.
C. The Alleged 8(a)(3) Violations
The complaint alleges, and counsel for the General
Counsel contends, that employees Arms, Collins, Plum-
mer, Jones, Gann, and Mike Bowling were laid off on 9
September because they had joined and supported the
Union, and that Arms (after recall), Harold Bowling, and
Joe Bowling were terminated on 2 December for the
same reason.
Respondent claims both situations were layoffs which
were effectuated for economic reasons.
Prior to 9 September 1985, Respondent employed 10
production and maintenance employees. Four (Robert
Grubbs, Joe Bowling, Mike Bowling, and Richard Plum-
mer) worked in the toolroom where certain components
of oilers were machined, oilers were assembled, and
work on dies was accomplished (sharpening, repair, and
preparation of new dies). Tomlinson testified that the
number of oilers manufactured and sold at all times ma-
terial has been relatively constant. He indicated the man-
ufacture of the number of oilers regularly sold by Re-
spondent involves approximately 27 or 28 man-hours per
day. The remaining six employees (Harold Bowling,
Betty Arms, Shirley Collins, Eugene Gann, Bobby Jones,
and Scott Barrier) worked in Respondent's pressroom
prior to 9 September. Those employees produced stamp-
ings for customers as well as certain stamped compo-
nents for the oilers manufactured by Respondent.
Respondent placed in evidence as Respondent Exhibit
2 a composite which reveals its oiler and stamping sales
from January 1985 through March 1986.9 The document
reveals the following:
Sales
Month
Oilers Mr. Button Stampings Totals
1985
Jan $23,167 $4,440 $74,793 $102,400
Feb 22,654 4,845 46,301 73,800
Mar 31,141 6,822 55,169 93,132
Apr 22,404 5,964 53,640 82,008
May 21,094 5,519 44,465 71,078
June 24,476 3,963 51,703 .80,142
9 The column entitled "Mr Button" indicates the 'amount of sales of
campaign buttons to the customer Mr Button Respondent witness Koers
indicated Mr Button sales were set out separately because the stampings
are produced by use of highly automated presses and the customer sup-
plies the raw material to produce the buttons One employee operates the
presses which produce the campaign buttons
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sales
Month
July
Aug
Sept
Oct
Nov
Dec
1986
Jan
Feb
Mar.
Oilers Mr. Button Stampings Totals
24,228 5,477 59,378 89,083
23,092 5,585 29,302 57,979
21,671 6,151 28,006 55,828
28,013 5,332 20,903 54,248
25,736 6,440 18,996 51,172
26,578 4,684 17,331 48,593
22,892 3,812 7,642 34,346
23,128 5,320 10,173 38,621
26,055 5,802 2,960 34,817
Stamping Specialty
Stamping Customers Sales
Tomlinson testified he noticed as early as late 1984
that orders for stampings had dropped off, and that his
regular customers were ordering later than usual and
were ordering smaller quantities. He, and his assistant,
Diane Koers, both indicated during their testimony that
they learned during 1984 or before December 1985, that
certain major stamping customers would not be placing
orders with them in the future. i ° Among those were:
Amstore which placed orders in 1984 that produced
some $50,000 net profit, but purchased nothing during
1985; Carson, which indicated in November 1985 that it
would do business with a competitor; Schwitzer, which
had been sold; A T & T, which had indicated it was
moving its operations out of Indianapolis; and Beverly
and Safeway Door, which had indicated they would be
placing no new orders after December 1985. In addition,
and to Respondent most important, Tomlinson testified
that his biggest dollar volume customer, A M General, a
government contractor, insisted in May 1985 that each of
its parts manufactured by Respondent must be inspected
if it was to continue to do business with the Company.
When Tomlinson informed A M General representatives
in November 1985, that he would be unable to institute
the inspection procedures demanded, that customer
pulled out its tooling except for that needed to produce
orders already "in-house."
Stamping Specialty
Stamping Customers Sales
FY 1985 Customer FY 1984
$153,760 A M General $224,988
-0- Amstore 61,741
i 64,211 DeFlectro 57,492
54,181 Carson 43,755
27,245 Divers 27,138
26,166 Elliot Williams 23,677
17,239 Becker - 0 -
16,999 Emquip 15,907
10 A listing of Respondent' s stamping customers and the amounts they
purchased during its fiscal years 1984 and 1985 was placed in the record
as R Exh 3 The 20 customers (by dollar volume purchased) are set
forth by name and the remaining customers, which purchased small
amounts and were approximately 30 in number, are lumped together The
document indicates the following
FY 1985 Customer FY 1984
15,395 Gould 11,660
12,316 Wayne Home 8,463
12,074 Schwitzer 14,655
11,704 Beverly 10,755
11,436 Safety Vehicle 11,429
10,112 Safeway Door 13,362
10,081 Diamond Chain 3,508
9,834 AT&T 10,153
9,280 Day & Zimmerman 9,191
8,398 Andover 13,064
7,495 Sissons 3,540
6,544 Cummins 12,734
47,837 All Others 91,284
65,643 Mr Button Products 87,484
$597,650 Total $756,000
As indicated by Respondent's Exhibit 2, which is set
forth, supra, Respondent's stamping sales (excluding Mr
Button .sales) were $59,378 in July 1985. They dropped
to $29,302 in August, dropped further to $28,006 in Sep-
tember, dipped to $20,903 in October, and continued to
fall during the remainder of 1985. Tomlinson testified
that by the first of September he had only one job for all
the stamping employees and he decided during the
period 2-4 September that he could accomplish the
needed stamping and oiler work by laying off all his pro-
duction workers except Harold Bowling, Joe Bowling,
and Robert Grubbs (the tool and die man). Having made
the decision he claims he telephoned- Union Business
Representative Trader on Wednesday, 4 September, to
discuss the matter. According to Tomlinson, he told
Trader there was to be a layoff and he desired to clear
with him his desire to transfer Scott Barrier, the least
senior employee at the facility, from his bargaining unit
job to an office position. Tomlinson testified Trader in-
formed him the transfer would pose no problem since it
was to a job outside the unit, but he would prefer that
Barrier not be given a big raise. i i
On Thursday, 5 September, Respondent handed each
of its production employees a copy of a letter placed in
the record as General Counsel's Exhibit 5 when it gave
them their paychecks. The letter indicated that Arms,
Collins, Plummer, Gann, Mike Bowling, Jones, and Scott
11 As indicated, infra, Respondent furnished its employees with copies
of a layoff letter placed in the record as G C Exh 5 when it gave them
their paychecks on 5 September Despite this, Trader denied having
learned of the 9 September layoff until Joe Bowling told him about it
prior to a meeting they attended after the layoff Significantly, when
asking if he was notified of the layoff before it occurred, the General
Counsel asked Trader if he had received "written" notice He answered
no Noting that Trader admitted during his testimony that he did not
object to the Barrier transfer if he did not receive a raise, that Joe Bowl-
ing, the steward, received notification of the layoff, that Trader did not
specifically deny having had a telephone conversation with Tomlinson on
4 September, and that Trader did not protest the layoff after he admitted-
ly learned of it, I credit Tomlinson
STAMPING SPECIALTY CO
Barrier were laid off as of 9 September but their insur-
ance would be continued in effect for 60 days.
The situation produced by the layoff was one which
left Joe and Harold Bowling, Grubbs, Barrier, and Crab-
tree on Respondent's payroll. Joe Bowling (30 years'
service) and Harold Bowling (second in senority) were
senior to all employees in layoff, but Arms, Collins,
Jones, and Mike Bowling had more time with the Com-
pany than Grubbs. Counsel for the General Counsel did
not seek, however, to show any of the employees laid off
on 9 September were qualified to perform the tool and
die work performed by Grubbs. Although the record re-
veals Respondent and the Union met for the purpose of
conducting bargaining negotiations on 18 October and 2
December, the record fails to reveal that the 9 Septem-
ber layoff was discussed during those bargaining sessions
During the period extending from 9 September to 2
December, Harold Bowling, Foreman Crabtree, and
(after 21 October) Betty Arms produced the stampings
sold by Respondent. As noted, supra, employee Scott
Barrier performed limited pressroom work during the
period when he ran the Deflecto order. Additionally, ac-
cording to Harold Bowling, Barrier would appear in the
shop on occasion to spend a short period of time packag-
ing a part for shipment or assisting in the loading of
trucks. During the same period, the employees who were
producing oilers were Joe Bowling and Robert Grubbs.
In addition to assisting Joe Bowling in the boiler work,
Grubbs continued to accomplish work on dies as needed.
The record reveals that some of the work necessary to
produce the oilers manufactured during the period under
discussion was accomplished outside the plant. Thus,
Harold Bowling testified that before and after the June
election, Betty Simpson had accomplished certain weld-
ing on oiler tanks or reservoirs outside the plant, and
that Diane Koers' mother had sewed carpet on small
oiler rollers (less than 37 inches) at her home. According
to Harold Bowling, after the election Crabtree started to
take large oiler rollers, which had previously been car-
peted by Mike Bowling and Richard Plummer, home
with him and his wife returned them after they had been
carpeted. Trader testified he protested the contracting
out of the large roller carpeting during a bargaining ses-
sion held on 18 October. Tomlinson defended the prac-
tice by claiming they did not have room to accomplish
the work at the plant. No agreement was reached on the
matter and the practice apparently continued.12 Harold
Bowling testified he suspected that an unspecified
number of large oilers were made by an outside contrac-
tor during the period under discussion as there would be
no big oilers ready for shipment when he completed his
4-day workweek on Thursday evening, but that he
would see completed large oilers which were ready for
shipment when he reported for work on Monday morn-
ing.13
12 The record fails to reveal the number of man-hours of work lost per
day or week as a result of such subcontracting
13 While Respondent may have contracted out work on large oilers as
suspected by H Bowling, I cannot find that was done as the Bowlings
worked 12-hour shifts Monday through Thursday, and were not in the
plant on Fridays when Crabtree and Grubbs were working In any event,
no subcontracting violation is alleged in the complaint
711
On 21 October, Betty Arms was recalled by Respond-
ent to produce an order for a firm named Deflecto Cor-
poration. The circumstances surrounding her recall have
been discussed, supra.
On 27 November, Respondent sent all its stamping
customers but Emquip a copy of a letter placed in the
record as General Counsel's Exhibit 11.14 The message
conveyed to its customers by such letters was that as of
that date Respondent was phasing out its stamping oper-
ations and would process "in-house" orders, but would
not accept new orders.
Respondent and the Union had scheduled a negotiating
session for 2 December. When Tomlinson appeared at
the meeting, he handed Union Business Representative
Trader copies of documents placed in the record as Gen-
eral Counsel's Exhibits 7, 8, and 9. General Counsel's
Exhibit 7, a document dated 14 November 1985 ad-
dressed "To Whom It May Concern," and signed by
Tomlinson and Respondent Co-owner Hopkins, 15 states:
After spending several months looking at the
present state of this business, we have decided to
make appropriate changes that brings the business
more in line with the current state of the economy
and the best interests of the company.
The goal of management is to combine marketing
and manufacturing interests in such a way as to
direct the company toward product development,
sales and marketing. All "in-house" metal stamping
that does not directly relate to prototype develop-
ment, proving of tools and production samples, will
be phased out. The only exception to this will be
the infrequent stamping of a few oiler parts. In
other words, contract metal stamping will be
phased out as rapidly as possible. Virtually all parts
manufacturing will be done by outside sources and
we will do -only minor inspection, assembly and
shipping here.
At the end of the reorganization, the total
number of people that will be required will consist
of one employee in the shop area, one employee in
the tool room, and a "yet to be determined"
number of employees in the office.
Thank you.
Through General Counsel's Exhibit 8, Respondent noti-
fied the Union and its employees who ". . the one em-
ployee in the shop area, and one employee in the tool
room" would be, as the document is a letter which noti-
fied Arms, Harold Bowling, and Joe Bowling that they
were laid off effective 2 December; that they would be
paid through the 2 December workweek; and that their
insurance would be continued in force during December
1985 and January 1986 In addition to providing Trader
with a copy of General Counsel's Exhibit 9, Tomlinson
read the document in its entirety to those attending the
meeting. Summarized, the document, which was au-
14 Koers testified Emquip was sent a copy of the letter in December
when it was learned no copy was sent to it on 27 November
11 Tomlinson testified the memo was typed on 14 November but
signed at an unstated subsequent date
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
thored by Tomlinson, sets forth various problems inher-
ent in the operation of a stamping shop; observes that
Respondent had neither the machinery, trained person-
nel, nor the capital to compete effectively; states that
Tomlinson's training-and health precluded him from con-
tinuing to manage a stamping operation; and concluded,
stating, inter alia:
My situation is this. My stamping customer base
is shrinking. I have no competent engineering
people to back me up, and I have not been able to
find anyone with the correct mix of experience and
interests in the last three years. Finally, the cash is
not available to make massive changes in equipment
and organization that would be required to stay
competitive with other upscale contract stamping
houses. I, am simply spread too thin and I have
reached my physical limit. A company our size re-
volves around the owner(s) abilities and interests
By necessity, his strengths must set the company's
direction, and it is his strongest traits that sets com-
pany goals.
It is my intention to reorganize the company in
such a way that I can reduce external pressures on
myself to the point where I feel that they are at a
manageable level. I cannot be two tool and die
makers, and I am exhausted trying.
It is my plan to suspend contract metal stamping.
We will suspend the production of all of our own
product line's (stock .oilers) component parts, except
for those that cannot be done by outside sources. I
will let someone else worry about the manufactur-
ing problems and I will do the complaining.
I plan to spend my time on promotional projects
and marketing. Any new additions.to the line will
be made on a non-rush basis
Due to the new, drastic reduction in volume of
internal production, employee requirements will be
miminal . We will keep the shop foreman-who has
exhibited a willingness to accept responsibility and
has demonstrated his all-around talents in a shop-
and we will retain the tool maker, who is important
as long as we have any machines left in the compa-
ny
All other employees will be phased out as stamp-
ing and machine shop jobs are phased out.
During the 2 December meeting, Trader claimed that
Harold and Joe Bowling had the ability to perform the
required work in the pressroom and the toolroom, and
they should be retained as they were senior to Crabtree
and Grubbs. Trader testified he asked Tomlinson if he
was saying the Bowlings did not have the ability to per-
form the remaining work, and claims Tomlinson said
"no." Tomlinson's position was that he intended to retain
Crabtree because he was the foreman, and he intended to
retain Grubbs as he was the only employee capable of
building dies.
Respondent and the Union next met on 6 December.
After handing Tomlinson a document placed in the
record as General Counsel's Exhibit 12, Trader asked
Tomlinson to reconsider his position on retaining less
senior people to perform bargaining unit work. Respond-
ent failed to alter its position . The body of the document
delivered at the meeting states.
In response to your letter dated November 14,
1985, addressed to "To Whom It May Concern,"
provided to me, the undersigned, in the negotiating
session of December 2, 1985, this is to advise you
that this Local Union goes on record to request the
names of those individuals and/or companies who
will be performing the stamping of products pres-
ently being performed by your company and/or the
bargaining unit employees.
Also we are requesting the name(s) of the "out-
side sources" who will be doing the parts manufac-
turing.
This Local Union is going on record to protest
your Company subcontracting work that was previ-
ously performed by bargaining unit employees of
Stamping Specialties, Inc.
This Local Union is protesting your actions as
outlined in the letter of November 14, 1985 in its
entirety. -
Trader testified he requested during the 6 December
meeting that agreement be reached on a time and date
for continuation of negotiations. He indicated he re-
ceived no response, and testified Respondent has not re-
sponded to the above-described letter dated 5 December
1985.
During the 40 years it has been in existence, Respond-
ent has always made a profit, and it has experienced few
layoff situations. Employee Harold Bowling, who was
hired in 1962, recalled that he and another employee
were laid off for about 3 weeks in 1965. He claims that
seniority was observed during that layoff and he recalled
none after that prior to 9 September 1985. Tomlinson,
who joined Respondent on a full-time basis 11 years ago,
testified that he recalled that all of the Respondent's
female employees were laid off for a period in 19751 6
and were subsequently recalled in early 1976, and that a
few people were laid off for a couple weeks in 1978 or
1979. He claims ability to perform the work, rather than
seniority, was the criteria utilized during the layoffs to
determine who would work. 17
Discussion
The 9 September Layoff
The General Counsel's burden under Wright Line18
was to establish that the union activities of the employ-
16 Tomlinson testified the female employees perform no set-up work
but all the male employees perform set-up to some extent He claimed
less senior males were retained at the time of the 1975 layoff because
they had a wide range of work skills
17 The General Counsel urges me to discredit Tomlinson's testimony
concerning layoffs Noting the record reveals that Shirley Collins and
Betty Arms were both hired in 1973, and were not called as witnesses to
refute Tomlinson's claim that all female employees were laid off in 1975,
and that Tomlinson exhibited favorable demeanor when describing the
layoffs, I credit his testimony concerning the layoffs he described
18 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert
denied 455 U S 989 (1982)
STAMPING SPECIALTY CO
ees laid off on 9 September were a "motivating factor"
in Respondent's decision to terminate them. If the Gener-
al Counsel sustained that burden, as I find he did, Re-
spondent's evidentiary burden was to show that it would
have laid off the employees in the absence of such pro-
tected activities. For the reasons set forth below, I find
Respondent satisfied that burden
The General Counsel's first task was to prove that
Mike Bowling, Richard Plummer, Eugene Gann, Bobby
Jones, Betty Arms, and Shirley Collins engaged in pro-
tected conduct and that Respondent was aware of their
activities and sentiments. Respondent does not argue in
this case that it had no knowledge of the above-named
employees' support of the Union. In addition to clearly
revealing that each of the named employees signed union
authorization cards and voted for union representation
during the 20 June election, the instant record reveals:
Tomlinson observed the prounion employees keep their
distance from antiunion employees Grubbs and Barrier
during the organizational campaign ; Tomlinson and
Crabtree heard Grubbs and Barrier voice their support
of the Company during employee meetings; the Union's
6 May letter gave Respondent notice that the first four
named employees were on its organizing committee; and,
finally, Tomlinson admitted during his testimony that he
was of the opinion after the election that Grubbs and
Barrier had cast the "No" votes. It is clear, and I find,
that each of the employees terminated on 9 September
supported the Union and that Respondent was aware of
their advocacy
Having established that the employees laid off were
union advocates and that Respondent was aware of their
sentiments; the General Counsel adduced evidence
which reveals that Tomlinson threatened, when he
learned the Union was attempting to organize its em-
ployees, to close the facility and to turn it into a ware-
house or move it to California because the Teamsters
were not going to tell him how to run the business; that
Tomlinson evidenced his particular displeasure with
Harold and Joe Bowling by leaving the A M General
letter with a note on it on Joe Bowling's desk; that Re-
spondent's business had been uniformly profitable over
the years, and that layoffs had been rare, that oiler sales
had been steady during times material herein, that the six
above-named prounion employees were laid off on 9
September, while antiunion employees Grubbs and Bar-
rier were retained; that two of the six employees, Mike
Bowling and Plummer, manufactured oilers; and that
Grubbs was junior in seniority to Arms, Collins, Jones,
and Mike Bowling, while Barrier was junior to every
employee working at the facility. By adducing the facts
set forth, I find the General Counsel established, prima
facie, that Arms, Collins, Mike Bowling, Jones, Gann,
and Plummer were laid off on 9 September 1985 for dis-
criminatory reasons.
Turning to Respondent's defense that economic cir-
cumstances dictated that it effectuate the 9 September
layoff, I note, at the outset, that the Union apparently
took no action with respect to that layoff until it filed
the initial charge in this case (Case 25-CA-I7687) on 12
December 1985, more than 3 months after the layoff.
Indeed , the record fails to reveal that Business Repre-
713
sentative Trader challenged Respondent in any way con-
cerning the 9 September layoff at any of the negotiation
sessions which were held subsequent to the layoff. The
Union's failure to act, although it had members working
at the facility who were aware of the workload, causes
me to give considerable weight to Tomlinson's claim that
while oiler sales, and Mr . Button sales remained relative-
ly stable throughout 1985, orders for customer stampings
started to drop off in late 1984, and had slipped by late
August or early September to the point that one job or
order was all the Company had to keep employees in the
pressroom busy. Tomlinson's testimony is supported by
the composite placed in evidence as Respondent's Exhib-
it 2, which reveals that stamping sales (excluding Mr.
Button) dropped from $59,378 in July to $29,302 in
August and thereafter continued to drop until they
reached $18,996 during the month of November 1985.
Tomlinson testified in early September he decided he
could fill the orders the Company had by laying every-
one off but the working foreman, Crabtree, the Bowling
brothers, and his tool and die maker, Grubbs. Significant-
ly, the General Counsel offered no evidence which
would reveal that Respondent was unable to fill the
orders it received during the months of September, Oc-
tober, or November 1985, with the individuals retained
on and after 9 September. I am convinced, and find, that
Respondent has shown the 9 September layoff was dic-
tated by economic circumstances.
The General Counsel contends that, assuming ar-
guendo, economic circumstances dictated that a layoff be
effectuated on 9 September. Respondent nevertheless
violated Section 8(a)(3) by failing to lay off according to
seniority, and by, instead, retaining Grubbs and transfer-
ring Barrier to an office job outside the unit. I find the
contention to be without merit for several reasons.
First, I note that the General Counsel has failed to
show that Respondent altered its normal practice in
layoff situations at the time of the 9 September layoff
While he sought, through the testimony of H. Bowling,
to establish that Respondent followed seniority when it
laid off H. Bowling and another employee 20 years ago,
I have credited Tomlinson's testimony which reveals that
the criteria utilized to decide who would be selected for
layoff in more recent years has been ability to perform
available work rather than seniority.
Second, I conclude that the record supports Respond-
ent's contention that Grubbs and Barrier were retained
on 9 September because they were best qualified to per-
form the work available. The General Counsel's conten-
tion that Grubbs should not have been retained because
Arms, Collins, Jones, and Mike Bowling were more
senior is quite weak as the record fails to reveal that any
of the named employees possessed any expertise in the
sharpening, the repair, or the building of dies. The
record reveals that when Respondent utilizes its presses
it needs, at miminum, an employee who can sharpen and
repair dies. Grubbs has performed those functions at the
facility since some time in 1984 In my view, Respondent
has shown adequate reason for retaining him on 9 Sep-
tember. ,
714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
While Respondent's retention of Barrier; the least
senior employees in the facility on 9 September, justifi-
ably causes one to suspect that Tomlinson was favoring
Barrier because he had supported the Company at the
time of the election, Tomlinson testified he retained Bar-
rier because, he needed an assistant for Koers in the
office -and Barrier possessed the qualification for the job
as he was-a high school graduate and he had gained sev-
eral years sales experience by managing a battery firm in
the Indianapolis area. While the General Counsel argues
that any of the employees laid off on 9 September could
have performed the sales job given to Barrier on 9 Sep-
tember, Tomlinson testified he did not consider those
employees because none of them had graduated from
high school. Noting that Union Representative Trader
did' not object to Tomlinson's proposal to transfer Bar-
rier to a nonunit job and the fact that the General Coun-
sel has failed to show that any of the employees laid off
on 9 September were qualified to fill the position, I find
he has failed to show that Respondent violated Section
8(a)(3) by giving Barrier, rather than one of the employ-
ees laid off on 9'September, the office sales position.
In sum , for the reasons stated, I find that Respondent
has shown that it would have laid off employees Arms,
Collins, Jones, Mike Bowling, Gann, and Plummer on 9
September even if they were not known by it to have
joined or supported the Union.19
The 2 December Terminations
As indicated above, Respondent terminated the em-
ployment' of Joe Bowling, Harold Bowling, and Betty
Arms on 2 December 1985. Each of the employees had
joined the Union and had voted for it during the elec-
tion. Indeed, Joe Bowling had instigated the organization
campaign and had served as the Union's observer at the
election and was the union steward at the time he was
terminated. Tomlinson's above-described conversations
with the Bowling brothers in early May and his subse-
quent handling, of the A M General letter matter reveal
he harbored marked animus against the Bowling brothers
because of their support of the Union. While he dis-
played no open animosity toward Arms, he admittedly
suspected after the election that she was also a union
supporter. It is clear, and I find, that Joe Bowling,
Harold Bowling, and Betty Arms were union supporters
and Respondent was aware of their advocacy
During the hearing, the General Counsel established
that Joe Bowling had worked,for Respondent for 30
years. During that period, he had performed every func-
tion related to the manufacture of stampings and oilers.
He credibly testified he was capable of sharpening dies
and repairing dies and that he had made an undisclosed
number of dies prior to 1972. For some period preceding
his termination he supervised the construction of oilers
and directed Mike Bowling and Richard Plummer in the
performance of their oiler manufacturing functions. Simi-
19 In reaching such a conclusion, I have considered Harold Bowling's
fragmeritary testimony which was to the effect that he suspects Crab-
tree's wife has been sewing carpet on oiler rollers since the election
Absent a complaint allegation concerning that matter, I am not disposed
to make any findings concerning it as the record reveals that Respondent
contracted out similar work to Diane Koers' mother prior to the election
larly, Harold Bowling, who had been employed by Re-
spondent for some 24 years at the time of his' termina-
tion, was shown to have been intimately familiar with all
phases of Respondent's operation. The record reveals
that Tomlinson recognized Harold Bowling's expertise
by making him the shop foreman, and Tomlinson admits
he accepted Harold's resignation of his supervisory posi-
tion reluctantly in April 1985. Significantly, the record
reveals that Harold Bowling spent a considerable portion
of his working time in the operation of the presses which
produce the Mr. Button stampings during that period
which extended from April until 2 December 1985. Like
his brother, he is capable of sharpening dies. While the
record fails to reveal the full extent of Arms' capabilities,
Tomlinson indicated during his testimony that Arms is
an excellent machine operator. He particularly empha-
sized the fact that she is an exceptional operator on
single-piece parts jobs.
It is undisputed that prior to 2 December some 27 or
28 man-hours per day were required to produce the
oilers manufactured by Respondent. During his testimo-
ny, Tomlinson claimed that Robert Grubbs, the tool and
die worker who was retained because he alone possessed
the requisite tool and die skills required to keep the fa-
cility's presses operating, has accomplished all the oiler
work performed at the facility since 2 December. Tom-
linson indicated during his testimony, however, that for
years Respondent has sent dies, particularly large ones,
to a firm across the street from his plant for repair, and it
has had the same firm build a number of dies. Signifi-
cantly, the record reveals Respondent's oiler sales ranged
from $21,671 to $28,013 during the period extending
from June through November 1985, and that during the
4-month period extending from December 1985 through
March 1986, they have ranged from $22,892 to $26,578
Similarly, the record reveals that the production and sale
of Mr. Button stampings , items produced in the press-
room, have continued during the past 2 December
period to be essentially the same as the production expe-
rienced during the months of the preceding year. Finally,
the record reveals that while the production and sales of
stampings other than Mr. Button stampings have
dropped off precipitously beginning in August 1985, Re-
spondent was still producing a significant number of
stampings for others during December 1985 and Febru-
ary 1986, as sales during those months were $17,331 and
$10,173, respectively. Unaccounted for are the stampings
utilized by Respondent to manufacture the component
parts for its oiler products.
In sum , the evidence summarized above, considered in
conjunction with the antiunion animus expressed by
Tomlinson after Respondent's employees sought and ob-
tained union representation, and the animosity he direct-
ed toward the Bowling brothers in particular, warrants
an inference that the union activities of Joe Bowling,
Harold Bowling, and Betty Arms were a "motivating
factor" in Respondent's decision to terminate them on 2
December.
Respondent's defense is bottomed upon a contention
that it was lawfully entitled to retain Crabtree as he is a
member of management and a supervisor, and that it was
STAMPING SPECIALTY CO.
lawfully- entitled to retain Grubbs because he was needed
to perform the tool and die work that is required if the
presses are to be operated. I find both contentions to be
without merit.
While the record does not precisely reveal what work
tasks Crabtree has performed since 2 December, it does
reveal that prior to that time his function was to deter-
mine what stampings were to be manufactured and to
assist bargaining unit employees by helping them set up
the presses and machinery necessary to accomplish pro-
duction. Since Respondent has continued since 2 Decem-
ber to produce stampings in the pressroom, and Crabtree
is the only individual working there, it necessarily fol-
lows that he is, and has been since 2 December, perform-
ing work previously performed by bargaining unit em-
ployees Harold Bowling and Betty Arms. Since the
Union has continuously indicated since 2 December that
it objects to Respondent's Crabtree's performance of bar-
gaining unit work, I find, in accord with the General
Counsel's contention, that Respondent cannot rebut his
prima facie proof of violation of Section 8(a)(3) of the
Act by showing that it has engaged in conduct which
would appear to have violated Section 8(a)(5) of the Act.
In the circumstances, I find that Respondent has failed to
show that it would have terminated Harold Bowling and
Betty Arms in the absence of their participation in union
activity.
Turning to the toolroom and the production of oilers,
work performed and directed by Joe Bowling prior to 2
December, I note that three men (Joe Bowling, Mike
Bowling, and Richard Plummer) assisted on occasions by
the tool and die maker, Grubbs, assembled the oilers and
components prior to 9 September. During the period ex-
tending from 9 September to 2 December, Joe Bowling
and Grubbs accomplished the work. Apparently,
Grubbs, known by Respondent to be a company support-
er rather than a union advocate, has spent virtually all
his working time in the manufacture of oilers since 2 De-
cember 1985. Noting that the oiler production since 2
December has remained about the same as that experi-
enced before that date, I am compelled to conclude that
Tomlinson, as he indicated on 2 December, has-contract-
ed out some of the work entailed in the production of
oilers which was previously performed by bargaining
unit employees. As revealed, supra, the Union requested
the names of the "outside sources" who would be manu-
facturing parts for Respondent in its letter dated 5 De-
cember, and it noted therein that it protested Tomlin-
son's avowed intention to subcontract bargaining unit
work.
During the hearing, the General Counsel sought to
show that Joe Bowling is as accomplished in tool and die
work as Grubbs. J Bowling testified he could sharpen
dies, repair them, and make new dies. He admitted, how-
ever, that he had not made a die since 1972, and that
since 1972 he has worked primarily on oilers. On the
other hand, Tomlinson claimed during his testimony that
Grubbs is without a peer at the facility and his training
as a machinist and his on-the-job training in the sharpen-
ing, repair , and building of dies he has received while
working at Respondent renders him more qualified than
Joe Bowling at die work. Assuming, arguendo, Grubbs is
715
more highly skilled on dies than J. Bowling, that fact
would appear to be rather meaningless here because
Grubbs has spent virtually all his time working on oilers
rather than presses since 2 December. Additionally, the
record reveals that Respondent frequently farms out the
work of making and repairing dies-the functions which
Grubbs may perform more effectively than J. Bowling.
In sum, I conclude that Respondent has failed to show
that it had a justifiable reason for terminating Joe Bowl-
ing on 2 December 1985. Apparently about 27 man-
hours per day are still required to manufacture the oilers
and components. Moreover, the record clearly reveals J.
Bowling was more proficient in the manufacture of oilers
than Grubbs. Grubbs' qualifications as a tool and die
maker were, in my opinion, merely advanced as a pretext
to disguise Respondent's intention to utilize Grubbs in
oiler work rather than in his area of specialty. Moreover,
if, as the record would appear to suggest, Respondent
has contracted out work previously performed by J.
Bowling, such conduct would support the General
Counsel's contention rather than Respondent's claim that
it would have terminated J. Bowling in the absence of
his participation in protected conduct. In sum , I find Re-
spondent has failed to show that it would have terminat-
ed Joe Bowling in the absence of his participation in pro-
tected conduct.
For the reasons stated, I find that by terminating the
employment of Harold Bowling, Joe Bowling, and Betty
Arms on 2 December 1985, Respondent violated Section
8(a)(1) and (3) of the Act.
D. The Alleged 8(a)(5) Violations
The complaint alleges that Respondent refused to bar-
gain with the Union and thereby violated Section 8(a)(5)
of the Act by (1) failing to give notice of the 9 Septem-
ber and 2 December 1985 layoffs, failing to bargain over
the decision(s) to effectuate such layoffs, and failing to
bargain concerning the effects of such layoffs on employ-
ees; and (2) bypassing the Union and dealing directly
with employees through Mark Tomlinson's November
conduct (concerning the Deflecto order).
I have found, supra, that Respondent did not, through
Tomlinson's October discussion with Joe Bowling, seek
to bypass the Union and deal directly with employees.
The remaining allegations are discussed below.
Respondent contends it gave the Union adequate
notice of the 9 September layoff and it cannot be held to
have violated the Act by refusing to bargain over the ef-
fects of the layoff upon employees because the Union
made no request that it do so. It contends it had no legal
-obligation to notify the Union of its 2 December action
because its decision to go out of the stamping business
was made "purely for economic reasons" and under the
rationale of First National Maintenance Corp. v. NLRB,
425 U.S. 666 (1981), such decisions are not mandatory
subjects of bargaining. Additionally, it contends it did, in
fact, bargain with the Union concerning the 2 December
layoff.
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The 9 September Layoff
The record evidence which I have credited reveals the
9 September layoff was one in which management's deci-
sion to effectuate the layoff turned upon labor costs. In
such situations, where an employer's employees are rep-
resented by a union, the employer is legally obligated to
notify the union and to offer to bargain prior to imple-
menting the layoff Peat Mfg. Co., 261 NLRB 240 (1982).
I conclude Respondent failed to fulfill either obligation.
While I have credited Tomlinson's claim that he tele-
phoned Trader and made some undescribed remark con-
cerning a layoff, it is clear that Tomlinson, who had ap-
parently formulated his plans for the 9 September layoff
before calling Trader, did not inform Trader when the
layoff was to occur or who would be involved. Such in-
formation was provided for the first time to employees
on 5 September . Significantly , no communication be-
tween Respondent and the Union occurred at that time,
and Trader eventually was provided details concerning
the layoff when he spoke with Union Steward Joe Bowl-
ing. In the circumstances described, it is clear that by the
time Trader actually learned of the layoff, he was faced
with a "fait accompli " Florida-Texas Freight, 203 NLRB
509 (1973), enfd. 487 F.2d 1275 (6th Cir. 1974). While
the Union admittedly failed to request bargaining over
the effects of the 9 September layoff, such a request
would have clearly been futile in the circumstances
which existed after the Union finally gained knowledge
of what had been done. Peat Mfg. Co, supra. According-
ly, I find that by failing to give the Union adequate ad-
vance notice of the 9 September layoff which would
afford it an opportunity to bargain concerning the
manner in which it was to be effectuated and its effect
upon employees, Respondent violated Section 8(a)(1) and
(5) of the Act as alleged. .
The 2 December Layoff
It is not necessary for me to determine here whether
Respondent could have effectuated a layoff on 2 Decem-
ber 1985 , which was lawful under the rationale of First
National Maintenance Corp., supra, as interpreted by the
Board in Otis Elevator Co., 269 NLRB 891 (1984), be-
cause I have found that , in fact, Respondent engaged in a
subterfuge on that date to rid itself of its last three
known union adherents and thereby violated Section
8(a)(3) of the Act The remedy I recommend , infra, is re-
instatement with backpay rather than a requirement that
Respondent bargain concerning the matter.
CONCLUSIONS OF LAW
1. Stamping Specialty Co., Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By implementing a layoff of employees on 9 Sep-
tember 1985 without giving the Union advance notice
and affording it an opportunity to bargain concerning the
layoff and its effect on employees, Respondent violated
Section 8(a)(1) and (5) of the Act.
4 By discharging employees Harold Bowling, Joe
Bowling, and Betty Arms on 2 December 1985 because
they joined or supported the Union, Respondent violated
Section 8(a)(1) and (3) of the Act.
5. Respondent has committed no unfair labor practices
not expressly found in this Decision.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discharged employees
Harold Bowling, Joe Bowling, and Betty Arms in viola-
tion of Section 8(a)(1) and (3) of the Act, I recommend
that Respondent be ordered to reinstate them to their
former or substantially equivalent positions of employ-
ment , making them whole for any loss of earnings and
other benefits resulting from their discharge. The amount
of backpay shall be computed in the manner set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in Flor-
ida Steel Corp., 231 NLRB 651 (1977).20 Consistent with
the Board's decision in Sterling Sugars, 261 NLRB 472
(1982), it will also be recommended that Respondent be
required to expunge from its records and files any refer-
ences to the discharges of Harold Bowling, Joe Bowling,
and Betty Arms, and notify them in writing that this has
been done and that evidence of the unlawful discharges
will not be used for future personnel actions against
them.
Finally, while the General Counsel requests that a "vi-
sitorial clause" be included in any Order issued in this
case, I note the Board has declined to include such
clauses in cases which do not appear to pose complicated
compliance problems. See, for example, Cherokee Heating
Co., 278 NLRB 399 (1986). In my view, the Order in this
case will pose no significant compliance problems, and
provisions set forth in the Order which require the Re-
spondent to preserve and make available to the Board
described records necessary to analyze the amount of
backpay due the discriminatees will suffice. Accordingly,
the request for a "visitorial clause" is denied.
[Recommended Order omitted from publication.]
20 See generally Isis Plumbing Co , 138 NLRB 716 (1962)