NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,537, ESSBAR EQUIPMENT COMPANY and SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION 19., (Oct. 31, 1994), National Labor Relations Board, (Oct 31, 1994)

ESSBAR EQUIPMENT COMPANY and SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION 19.

315 NLRB No. 58.Case No. 4-CA-21299. October 31, 1994 Bruce C. Nasdor, Administrative Law Judge..

Before Gould, Stephens and Cohen.

Peter Berrochi, for General Counsel. Frederick M. Walton, for Respondent. Dennis P. Walsh, for Charging Party.

Discrimination--Pretextual Nature of Reason--Layoff of Unionists.--An employer discriminated against two employees by laying them off and, thereafter, refusing to reinstate them, based upon their support for a union. Although the employer attempted to justify its actions on the basis of economic considerations, that defense was found to be pretextual because the employer had never laid a full-time employee off in 22 years, even through slow economic periods. Section 8(a)(3).

Back reference: ¶4095.1745.

Supervisors--Fact Finding--Tests of Status.--On the facts, an employee was a statutory supervisor for an employer because he independently directed employees’ field work, had the authority to grant time off and was paid far more than other employees, including a bonus, company car and a paid vacation. Section 2(11).

Interference--Coercive Remarks--Threats and Questioning.--Once an employer discovered that its employees were engaging in union organizing activities, it committed several unfair labor practices designed to interfere with the employees’ union support. These unlawful acts included interrogating employees regarding their union activities, telling an employee not to speak to union representatives and threatening job loss for union contact. Section 8(a)(1).

Back reference: ¶3770.082.

From Text of Board’s Decision

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, [1] and conclusions and to adopt the recommended Order as modified.

1. We agree with the judge that Marty Detweiler is a supervisor. In particular, we note that Detweiler independently directs the work of the Respondent’s field employees when they deliver and install kitchen equipment. Detweiler gives field employees Wykpisz and Andruzzi their assignments, instructs them where to report to work, verifies field employees’ hours, and solves problems that arise on the jobsite. Detweiler also gives instructions to Wykpisz and Andruzzi and is responsible for their field work. Further, as found by the judge, junior employees Wykpisz and Andruzzi require direction and, if Detweiler is not their supervisor, there would be no one to responsibly direct the field operation.

Detweiler also has the authority to grant employees time off, as established by uncontradicted evidence that he granted Andruzzi a day off without consulting higher management.

Finally, Detweiler’s wages and benefits substantially exceed those of other field personnel. He is paid $12 per hour compared with $7 for Wykpisz and Andrizzi, and, unlike other field personnel, he receives a bonus, use of a company vehicle and credit card, and a paid vacation.

On these facts, we agree with the judge that Detweiler is a supervisor under Section 2(11) of the Act.

2. The Respondent relies on Ideal Macaroni, [1991-92 CCH NLRB ¶16,470] 301 NLRB 507 (1991), in support of its argument that Wykpisz and Andruzzi were laid off for valid economic reasons, and not because of their union activities. We reject the Respondent’s economic defense.

In Ideal Macaroni, the employer more than doubled its work force in response to a new promotional campaign and because of operational problems it was experiencing with newly installed, state-of-the-art packaging equipment. Once the promotional campaign concluded, and the operational problems ceased, there was a concomitant drop in orders and manpower needs. In response, the employer laid off some of its newly hired employees including the alleged discriminatees. On these facts, the Board agreed with the employer’s claim that the discriminatees would have been laid off even in the absence of their union activity.

The Respondent asserts that here, as in Ideal Macaroni, the layoff of Wykpisz and Andruzzi was the lawful result of reduced manpower needs caused by a slowdown in its business. The Respondent claims that this reduction is reflected in the decline in its accounts receivable for the period from August to October 1992. Although the Respondent did experience a dropoff in its account receivable during this period, an examination of its accounts receivable for the period starting in August 1990 indicates that the Respondent experienced frequent rises and fall in its accounts receivable and that there was nothing unusual about the decline that occurred immediately prior to the layoff. [2]

Further, unlike Ideal Macaroni, Wykpisz and Andruzzi were hired as part of the Respondent’s regular work force, and not to meet a temporary demand. Indeed, the Respondent’s employee complement for several years has consisted of at least three full-time employees. Finally, in 22 years the Respondent has never laid off a regular full-time employee, even during slow periods.

In these circumstances, we find that the Respondent failed to establish that Wykpisz and Andruzzi would have been laid off for legitimate business reasons, even in the absence of their Union activities. Rather, as found by the judge, we conclude that the Respondent violated Section 8(a)(3) and (1) by laying off these employees.

3. The General Counsel except to the judge’s failure to find specifically that the Respondent violated Section 8(a)(1) by telling an employee that the Respondent did not want him talking to the Union. In the section of his decision entitled “Alleged Unfair Labor Practices,” the judge discusses Wykpisz’ testimony that Vice President Michael Lawrence told him that he (Lawrence) did not want them talking to the Union. Although, the judge credits Wykpisz’ testimony, he does not discuss this incident specifically in his “Conclusion and Analysis” section. The judge, however, does find in his “Conclusions of Law” that the Respondent violated the Act by telling employees not to talk to the Union. He also includes a provision in his order covering this violation. In these circumstances, we conclude that the judge’s failure to include this violation in the “Conclusion and Analysis” section was inadvertent. In any event, we find that the Respondent violated Section 8(a)(1) by telling Wykpisz not to talk to the Union.

4. The General Counsel also excepted to the judge’s reference in his remedy and order to the “discharge” of Wykpisz and Andruzzi and to the judge’s failure to make specific findings in his conclusions of law and order that Respondent unlawfully laid off and failed to recall the discriminatees. We find that the portions of the remedy, order, and notice that refer to the “discharge” should refer to “layoff” and “failure to recall the employees.” The conclusions of law, order, and notice shall be modified accordingly to reflect that the Respondent unlawfully laid off and failed to recall employees Wykpisz and Andruzzi.