NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,432, AERO INDUSTRIES, INC. and UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC., (Aug. 17, 1994), National Labor Relations Board, (Aug 17, 1994)
AERO INDUSTRIES, INC. and UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC.
314 NLRB No. 123.Case Nos. 3-CA-15570, -15688, -15758, -15920, -16065 and 3-RC-9570. August 17, 1994 Howard Edelman, Administrative Law Judge..
Before Gould, Stephens and Devaney.
Ron Scott, for General Counsel. Robert Landes, for Respondent. E. Joseph Giroux, for Union-Petitioner.
Discharges--Forced Quit--Foreseeability of Quitting.--An employer’s final warning to a known unionist for faulty work did not rise to the level of a constructive discharge so as to render the employer liable for an unfair labor practice. Although the employee became enraged because he received the warning and quit the following day, the employer’s actions in dealing with the situation did not create an intolerable working condition warranting a finding that the employee was constructively discharged. Section 8(a)(3).
Back reference: ¶4075.321.
Interference--Coercive Remarks--Employer’s Antiunion Campaign.--Once an employer discovered that its employees were engaged in a union organizing effort, the employer committed numerous unfair labor practices designed to interfere with the employees’ right to select a bargaining representative. These coercive unlawful acts included interrogating employees regarding union activities, requesting employees to monitor other employees’ union activities, threatening loss of employment because the union filed charges, by telling union supporters that they should quit their jobs and by engaging in surveillance of the employees’ union activities. Section 8(a)(1).
Back reference: ¶3770.0511.
Discrimination--Antiunion Motives--Chilling Employee Union Support.--In an attempt to chill its employees’ support for a union organizing campaign, an employer committed several unfair labor practices that discriminated against union activists. These unlawful acts included discharging a union supporter, reassigning employees to less desirable work, laying off union supporters and refusing to recall certain employees from layoff for various discriminatory reasons. Section 8(a)(3).
Back reference: ¶4010.408.
Discrimination--Fact Finding--Participation in NLRB Proceeding.--On the facts, an employer discriminated against certain employees by refusing to recall them from layoff because they gave testimony before the NLRB, because a close relative of an employee gave NLRB testimony and because an employee attended NLRB proceedings as a spectator. Section 8(a)(4).
Unilateral Changes by Employer--Work Conditions--Layoffs, Insurance, Wage Increase.--By making certain changes in its employees’ work conditions and bypassing their union without notifying the union or affording it an opportunity to bargain over the changes, an employer violated its bargaining duty. These new employer-implemented conditions included laying off employees without notice, dealing directly with employees regarding hours of work, suspending health care coverage and granting wage increases. Section 8(a)(5).
Back reference: ¶3135.483.
From Text of Board’s Decision
The Board has considered the decision and the record in light of the exceptions [1] and briefs and has decided to affirm the judge’s rulings, findings, [2] and conclusions as modified below and to adopt the recommended Order as modified and set out in full below. [3]
The 8(a)(1) and (3) Allegations Regarding Tom Griswold
Although we agree with the judge that the Respondent’s refusal to accept Tom Griswold’s withdrawal of his resignation violated Section 8(a)(1) and (3) of the Act, [4] we do not agree with his finding that the Respondent also violated the Act by constructively discharging Griswold.
The evidence credited by the judge shows that, shortly before his shift ended on August 9, Plant Manager Hindman handed Griswold a written final warning for faulty work. After some discussion, Griswold refused to sign the warning and told Hindman he would quit because of it. At that point, Hindman told Griswold that he would talk with Robert Dart, the Respondent’s president, about the possibility of “pulling” the warning letter.
The next morning, April 10, Griswold, still upset about the warning, became further irritated when his supervisor, Bailey, denied his request for time off. [5] Shortly thereafter, Griswold asked Bailey for a copy of the warning. Later that same morning, Griswold was observed walking among the machines “chanting” that this would be his last day, that he had gotten in his year, that this was it, and that they would be calling him from the front office. Bailey cautioned Griswold about this conduct. When Griswold’s chanting continued, he was summoned to Hindman’s office.
In Hindman’s office, Hindman asked Griswold whether there was “anything they could do to correct it.” Griswold repeated his request for a couple of days off to calm down. Hindman offered the time off. At that point, Griswold said “that wouldn’t do any good” and stated that he was quitting.
Hindman responded to Griswold by telling him that his attitude “sucked” and that “he couldn’t allow him to go back out with such attitude because he was too much of an influence on the rest of the people.” Hindman once again asked Griswold if he was serious about quitting. Griswold replied that he felt he was being “harangued” and, as a result, he was quitting. [6]
A constructive discharge occurs when an employee quits because his employer has deliberately made working conditions unbearable for him. Two elements must be proven: “First, the burdens imposed upon the employee must cause, and be intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign. Second, it must be shown that those burdens were imposed because of the employee’s union activities.” [7] The mere existence of discrimination is not sufficient to warrant finding the abandonment of employment to be a constructive discharge. [8]
In finding that Griswold was constructively discharged, the judge recognized that, unlike most cases in which the Board has found a constructive discharge, no affirmative change in Griswold’s working conditions had occurred before he quit. He relied by analogy on American Licorice Co., 299 NLRB 145 (1990). In that case, the employer refused the request of an employee, for a transfer to another shift so that she could care for her children. In finding a constructive discharge when the employee quit, the Board found that the employer had deviated from its usual policy of permitting employees to transfer from one shift to another where vacancies then existed. The Board also noted that the refusal was discriminatorily motivated. Here, the judge found that the Respondent’s issuing Griswold a final warning on April 9 gave rise to an analogous situation, because that warning represented a departure from the Respondent’s established disciplinary practice of a verbal warning, followed by two written warnings, the last of which is “final.” The judge also noted that it had been a year since Griswold’s last warning.
We view the departure from practice in the two cases as fundamentally different, both from the viewpoint of the employer and the employee. Unlike the employer in American Licorice, supra, who knew at the time it rejected the employee’s request for a shift transfer that she would be required to choose between leaving her children home alone or quitting her job (299 NLRB at 149), the Respondent here had no knowledge at the time it issued the warning to Griswold that he would decide to quit. Further, American Licorice’s action forced the employee to make an immediate decision on continuing her employment; by contrast, Griswold could have gone on working as before.
Although the Respondent’s issuance of the final warning to Griswold may not have been in accord with its above-described disciplinary practice, it cannot reasonably be found that the Respondent should have foreseen that he would quit because of that warning. [9] Similarly, no matter how reasonable Griswold’s fear of future discharge by the Respondent might have been, it does not permit him to elevate, unilaterally, the issuance of the warning into an unlawful discharge in the circumstances here. [10] In short, we do not find that the Respondent’s action rose to the level of creating an intolerable working conditions that warrant a finding that Griswold was constructively discharged. [11]
The Layoffs
The judge found tht the Respondent violated Section 8(a)(1), and (3), and (4) by laying off employees on August 10, November 26, December 28, 1990 and January 22, 1991. [12] In so finding the judge relied on credited evidence that showed a pattern of conduct by the Respondent calculated to discourage support for the Union, to retaliate against employees for cooperating with the General Counsel or resorting to Board processes, to divide its employees along pro- and anti-union lines, and to send the message to the employees that the Union and its supporters were responsible for the layoffs. Although acknowledging that the Respondent was experiencing economic difficulties during the period of the layoffs, the judge rejected the respondent’s economic defense. He found that the Respondent’s records showed a sustained period of production following the August 10 layoff, that each layoff was followed by brief periods of recall, that the Respondent’s evidence indicated a “phenomenal jump [as he described it]” in total sales for November 1990, and that the Respondent did not offer any documentary evidence of a decline in customer orders. In all respects, we affirm the judge’s findings regarding the layoff for the reasons stated by him and those set forth below.
The Respondent’s exceptions and brief contend that, in reaching his finding, the judge failed to analyze aspects of its economic defense and that he merely concluded that the “economic defense fails to overcome the strong prima facie case ....” The Respondent asserts that, “even assuming that there were orders, the records establishes clearly that Aero had no money and/or ‘credit’ available to purchase raw materials need to make tool boxes.” It relies largely on “Section 7 [accounts payable/receivable]” and “Section 8 [cash on hand]” of its “control book” to support its contention. [13] Specifically, the Respondent claims that, with respect to the August 10 layoff, it “ran out of money” while waiting for its customeers to pay and thus it could not meet its payroll. It also claims that its suppliers would not sell its steel “C.O.D.” As for not giving its employees advance notice that layoff was coming, it asserts that this was consistent with its practice of having a meeting with its employees at which the layoff was announced, and that the decision to have a layoff on August 10 was made on August 10. concerning the November 16 layoff, it again states that it had no money to meet the payroll, and that it had purchased materials on credit. The December 28 layoff, it asserts, was expected to be for 2 weeks because of a tight pre-Christmas financial situation, but was reduced to 1 week on the receipt of unexpected payments. The January 22 layoff it attributed to “finances,” “producing quality and ... productivity ....”
We find the Respondent’s proffered reasons for the layoffs to be unpersuasive. Regarding the August 10 layoff, for example, the Respondent’s control book shows that it had more “cash on hand” at the end of July and August 1990 than at the end of 10 of the previous 16 months. [14] The cash-on-hand figures for July and August 1990 also were substantially higher than those for 5 of the 6 months in the period between March and August 1989; yet no layoff occurred in that 1989 period. [15]
The Respondent’s reliance on monthly cash-on-hand figures for the timing of the four layoffs is also undermined by the intervening recalls that occurred during the 6-month period in which layoffs occurred. The Respondent did not show a pattern of progressive layoffs corresponding to a downward spiral of economic conditions. Instead, the Respondent alternated between laying off and recalling significant numbers of employees throughout the period, notwithstanding that the cash flow problems that purportedly necessitated the layoffs still appeared to be present when the recalls were made. In such circumstances, the raw figures for cash on hand each month offer little correlation to these fluctuating employment patterns.
The variance between accounts payable and accounts receivable in the control book likewise offers no clear support for the Respondent’s contentions that its financial difficulties necessitated the four layoffs. After using the August layoff as an example, we find that the Respondent’s records show it had a slightly more negative variance, i.e., more payables than receivables, in August 1989 than in August 1990; yet no layoffs occurred in August 1989. The record also shows that the Respondent recorded seven consecutive negative monthly variances ending in August 1989 without prompting a layoff but that prior to the August 10, 1990 layoff, three of the six monthly variances had been positive, i.e., more receivables than payables.
Finally, we note that the Respondent’s control book, on which it so heavily relies, shows that “finished goods” production for the second half of the 1990 compared favorably with the “finished goods” production for the first half of the year. Further, the record discloses that there was no decline in orders for the period of August-December 1990 from the earlier part of the year. Both of these circumstances indicate that the economic picture portrayed by the Respondent for the last 5 months of 1990 as justification for the three layoffs occurring there was not significantly different from the first 7 months in which no layoffs occurred. Indeed, the highest “finished goods” productions for 1990 was registered in September, and October’s production for such goods was above the median figure for the year. The Respondent has offered no reasonable explanation for the need to have layoffs in August, November, and December and not at any other time of the year. In addition, the control book shows a significant increase in total sales in November, thereby casting further doubt on the necessity for a layoff in that month, if not December as well. All of these matters, like the cash flow and accounts payable/receivable discrepancies discussed previously, suggest that as found by the judge, reasons other than economic considerations precipitated the 1990 layoffs. Similarly, the Respondent’s reasons for the January 1990 layoff do not withstand scrutiny. Those reasons amount to bare assertions unsupported by documentary or other reliable evidence.
In light of the foregoing, we agree with the judge that theRespondent has not provided a convincing explanation for the pattern of layoffs here. In sum, we agree, for reasons stated by the judge, that the General Counsel made out a prima facie case that the Respondent’s animus against its employees’ union activites and their role in the filing and processing of cases before the Board was a motivating factor in the layoffs. Also, for reasons stated by the judge and the additional reasons set out above, we agree that the Respondent did not establsh that it would, in any event, have implemented those layoffs for economic reasons. [16] Accordingly, we agree with the judge that the Respondent violate Section 8(a)(1) (3), and (4) as well as 8(a)(5), by the layoffs on August 10, November 16, December 28, and January 22.
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