Petition for Writ of Certiorari — JAMCO v. National Labor Relations Board

Supreme Court brief1991

Ask Donna

What actually matters in this document.

Text

6 0 . , 8 . 1 : tia ? a

eee ) MAY es 1991

| OFFICE OF THE CLERK

IN THE

Supreme Court of the Wnited States

OcTOBER TERM, 1990

—

JAMCO, GOHNSON ARCHITECTURAL METAL COMPANY),

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

y™

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

”"

PETITION FOR WRIT OF CERTIORARI

MCcNEILL STOKES

Counsel of Record

FRANKEL, HARDWICK,

TANENBAUM & FINK, P.C.

Suite 400

359 East Paces Ferry Road

Atlanta, Georgia 30305

(404) 266-2930

Attorney for Petitioner

May 1991

Lex Publishing Company, 2161 Monroe Dr., Atlanta, Georgia 30324 (404) 875-5140

a ee ee ee

vd er

QUESTION PRESENTED

1. Should a reviewing court defer to the phantom

credibility choices of an administrative fact finder when

questions of law control?

LIST OF INTERESTED PARTIES

The following were parties to the proceeding in the

Eleventh Circuit Court of Appeals:

National Labor Relations Board, (Respondent)

(hereinafter “Board” or “NLRB”) and Johnson Architec-

tural and Metal Company (Petitioner) (hereinafter

“JAMCO” or “Employer”).”

* Petitioner JAMCO has no parent or subsidiary.

iil

TABLE OF CONTENTS

I I cscs enn tunannsanensnnnesssavesnesanevenensseseen i

LIST OF INTERESTED PARTIEG...............:scsssssessscsssssesseesseee ii

IL sccnnnrenasaissancccavecessniansscsosnsenescanovses iii

DE IIE EB cs sass sensecsscssenssessvenesesneersnssenceocsonenes Vv

I sch ldncabondvebawessnescescnveccenenscecnssovones 1

FOEPEMIIMAL, STATEMENT ..........cccsscscssrsccssssrsesssussseses 1

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED. ..........cccccsceseeeseseseseseeees 2

REIT EE SU BOI CORIIIN cen csecccndcncnnevscsnsncnsnsnnsnsososenssnsesses 3

EXISTENCE OF JURISDICTION BELOW ..............c:ceeceeeeee: 7

REASONS FOR GRANTING THE WRIT.........cccccseseeeees 7

li ieneeschdhantichasdcaenadninnninnanscanaanaseacanene 7

aha seine sbcantsennennsanensantasansnnensannsnen 9

A. THE FIFTH AMENDMENT’S GUARANTEE OF

DUE PROCESS AND THE NATIONAL LABOR

RELATIONS ACT’S MANDATE OF JUDICIAL

REVIEW SHOULD PROTECT AGAINST ARBI-

TRARY ADMINISTRATIVE DECISIONS

WHICH IGNORE CONTROLLING LEGAL

QUESTIONS AND ARE INTENTIONALLY DE-

CIDED ON “CREDIBILITY” ISSUES OF FACT IN

ORDER TO EVADE APPELLATE REVIEW....... 9

B. DURING A UNION ELECTION CAMPAIGN

AN EMPLOYER MAY LEGALLY LAYOFF EM-

PLOYEES IN RESPONSE TO ECONOMIC NE-

CESSITY ON THE OBJECTIVE BASIS OF SE-

SUT ENETIEEE 1 veincsnrscssscicsivniensnenichaivhiisteiesnsabeiiesilineingietilidetinson 11

C THE BOARD CANNOT UPHOLD AN

ADMINISTRATIVE LAW JUDGE’S FINDING

OF AN EMPLOYER’S THREAT TO CLOSE ITS

DOORS BASED ON “CREDIBILITY” WHEN

THE ALJ RELIED ON AN ERRONEOUS

CONCLUSION TO MAKE HIS FINDING.......... 14

D. A REVIEWING COURT SHOULD REVIEW AN

ADMINISTRATIVE AGENCY’S DECISION

AND REVERSE PHANTOM CREDIBILITY

FINDINGS THAT ARE NOT BASED UPON

SUBSTANTIAL EVIDENCE IN THE RECORD

AND WHERE QUESTIONS OF LAW CON-

Cais Siciniinreinerinisiitatiinniidamsnieaiitinisiaieinianibipimiiiiichinimuanien 17

PENNE Ui onsessscithicntnicchetshiepnasieniebanataisnbasieliennccakaibidesnihiaiionesiats 19

FRE IE cetennicsneicssnicnieiniaiiniidaenniieninnneaimibtnnsnnamannieen la

1. Order Granting Application for Enforcement of

an Order of the National Labor Relations Board

dated February 22, 1991, National Labor

Relations Board v. JAMCO_ (Johnson

Architectural Metal Company), United States

Court of Appeals for the Eleventh Circuit, No.

2 Decision, Order, and Direction of Second

Election dated June 12, 1989, Johnson

Architectural Metal Company (JAMCO) and

Glaziers, Architectural, Metal and Glass

Workers, Local 1940, Case Nos. 10-CA-22910;

ai anitaeia cia ccacamnataatindnaurediostonadigesnnisnibtebl 2a

Record Excerpts of Hearing Testimony dated

February 10 and 11, 1988, Johnson Architectural

Metal Company (JAMCO) and Glaziers,

Architectural, Metal and Glass Workers, Local

1940, Case Nos. 10-CA-22910; 10-RC-13540: Ray

Maynard; Randy Gene Dennis; David Edell;

Albert Bell; Aaron J. Hege; James Donald

IIE cuincneccnapanimannanennninntpeeumannnenmnnisicnaihatian 53a

TABLE OF AUTHORITIES

Cases

American Ship Bldg. Co. v. NLRB,

Be EB. BID CUBGB) .ceccececncsnsenessessorccanorcesrscansssscnncvonesssosnees 11

Citizens to Preserve Overton Park v. Volpe,

GBI UG. GOB CUGT1) wn crcrcsarcinrsssssccsescscosesrecscccecccensscececsseveneee 18

Consolidated Edison Co. v. NLRB,

Be EB. TO CUI va evncccececicenssecsscsercosesenersesececensenensnsocesenes 10

Custom Recovery, Division of Keystone Resources v.

NLRB,

S97 P.O 1041 (Stir Cir. 1979)....ccecrccorscsccceescssnscnssssnsnsesees 16

Dawson Carbide Industries, Inc. v. NLRB,

762. F.20 G4 (6th Cir. 1986) .........cccrecorercsesersossseesscrseveeseeces 12

Jones Ceiling, Inc.,

Be Peete GED CIDER) case rsceccesecrsscscsceerecncsnncecsescanvensencess 12

NLRB v. Arkansas Grain Corp.,

SOS B.A 1ST (BUR Cie. 19GB) ...cercrcercccrccesececsorsnsscssecseseesens 10

NLRB v. Atlanta Coca-Cola Bottling Company,

Se Be re UIA GIR. TDG TD nnn ceneccerscecsnsecnrencscrsncarcnssnnnvee 12

NLRB v. Deauville Hotel,

Fe Wain COME CUTE Ce. TSG) nw cnrssceorecoscrecccsoserereessoessees 10

NLRB v. Florida Citrus Canners Cooperative,

S21 F.2d S41 (Stir Cir, 19635)..........cscroccessrecsecscsnsecvseneveeseees 17

NLRB v. Transway, Inc.,

410 F.2d 368 (Sth Cir. 1969)............ccssssssrcsesseressssssesenenes 16

Ona Corporation v. NLRB,

72D FBG TES CUT Cir. 19BE) .......recccerrccccccrsserssecesssesees 9, 16

vii

Serv-Air, Inc. v. NLRB,

395 F.2d 557 (10th Cir. 1968), cert. denied,

ISI Ge De OT eR ROR ONCE 12

Triangle Sheetmetal Works, Inc.,

FN ET CTO canteiececnssevicncbavenesersresessnnvimnncnintomne 13

Universal Camera Corp. v. NLRB,

EEO esnccrsernensteneectenneessennisannnrenenensenee 9,17, 18

Constitution, Statutes, and Regulations

IE Es STN eS

a et Fe I icitteticeenaitesslaniianiancneisiinsicasanaiaiaiaeniseanansion

SET a RR IO IA aN BENE et

ee ITI ccciesacescecaninntinenavanebiiéstienmaiantinadiiannesbnmussinisen

Br ae ae rN testnnsndinieniicantaniithainintinniemennnicendamneaaieninnns

a erase TEN PUNE OhActicsincsnnsicesacescunsiackonshedsnmtichanislintiies dpsicioo 7,9

No.

IN THE

Supreme Court of the United States

Octoser TERM, 1990

JAMCO, (JOHNSON ARCHITECTURAL METAL COMPANY),

Petitioner,

Vv.

NATIONAL LABOR RELATIONS S3OARD,

Respondent.

”™

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

”™

OPINIONS BELOW

The decision of the Eleventh Circuit Court of Appeals sought

to be reviewed in this case is reported without opinion at 927 F.2d

614 and is reproduced in its entirety at p. 1a in the Appendix to this

Petition. The Decision of the National Labor Relations Board and

the findings of the Administrative Law Judge Hutton S. Brandon

(hereinafter the “ALJ”) are published at 294 N.L.R.B. 80 and are

reproduced in their entirety beginning at p. 2a in the Appendix to

this Petition.

JURISDICTIONAL STATEMENT

The opinion and judgment of the Eleventh Circuit Court of

Appeals was entered on February 22, 1991. This Petition has been

timely filed in accordance with Rule 13.1 of the Rules of this Court.

This Court's jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS INVOLVED

U.S. Const. Amend. V.

No person shall be ... deprived of life, liberty or

property, without due process of law.

29 U.S.C. § 158(a)(1)

It shall be an unfair labor practice for an em-

ployer to interfere with, restrain or coerce em-

ployees in the exercise of the rights guaranteed

in section 157 of this title.

29 U.S.C § 158(a)(3)

It shall be an unfair labor practice for an em-

ployer by discrimination in regard to hire or

tenure of employment or any term or condition

of employment to encourage or discourage

membership in any labor organization.

29 U.S.C. § 160(f)

Any person aggrieved by a final order of the

Board granting or denying in whole or in part

the relief sought may obtain a review of such

order in any United States Court of Appeals in

the circuit wherein the unfair labor practice in

question was alleged to have been engaged in...

[t]he findings of the Board with respect to ques-

tions of fact if supported by substantial evidence

on the record considered as a whole shall in like

manner be conclusive.

STATEMENT OF CASE

JAMCO is a construction contractor specializing in

architectural metal, caulking and glazing. In August of

1987, JAMCO was actively engaged in three large con-

struction jobs in the Atlanta area: the Concourse 5 project,

the Lenox Hotel project and the IBM Tower project. By

early September 1987, the IBM Tower project was nearing

completion and work had been phased down

substan‘*ially. The Lenox Hotel job was virtually shut

down as a result of a contractual dispute between the

general contractor and the owner. In response to

JAMCO’s reduced workload in the Atlanta area, JAMCO

determined in late August to lay off five (5) employees.

In late summer of 1987, as JAMCO’s Atlanta projects

were phasing down, the Glaziers Architectural, Metal and

Glassworkers Local Union 1940 (hereinafter “Union”) be-

gan an organizational campaign among JAMCO’s em-

ployees. On August 5, 1987, the Union filed with the

Board a petition for a union election, which was granted.

On October 14, 1987, the Union lost the election by a vote

of 39 employees against and 13 in favor of representation,

with 7 challenged ballots. The Union objected to the elec-

tion, alleging that JAMCO discriminatorily laid off four

(4) employees and had unlawfully threatened to close its

operations, all of which unfairly influenced the election

results.

The Union complained that the four (4) layoffs were

discriminatory in that they allegedly targeted union

sympathizers. The Board found that the layoffs were

economically necessary and that the individuals were

selected for layoff strictly on the basis of seniority.

However, the Board concluded that the layoffs were

discriminatory in that they were motivated by anti-union

sentiment. The Board’s holding that the layoffs were

motivated by anti-union animus arises out of ar

unfounded conclusion that JAMCO changed its layoff

policy and because of remarks about the Union allegedly

made by a JAMCO supervisor as he distributed the layoff

notices.

JAMCO had conducted only one previous layoff. In

that layoff, JAMCO employees had been employed at dif-

ferent work sites and had varying levels of skill and ex-

perience. For these reasons, JAMCO considered an

employee’s ability to perform the work in addition to

seniority when selecting which employees would be laid

off. (Appendix at 41a.) In this situation, however, the pool

of JAMCO employees subject to layoff all had equivalent

levels of skill and experience to perform the work.

Therefore, JAMCO identified employees for this layoff

solely on the objective basis of seniority with the

company. (Appendix at 36a.)

JAMCO used its computer base to generate a

company-wide seniority list to determine which five (5)

employees had been with the company for the least

amount of time. (Appendix at 35a.) Because one of the

five (5) employees quit prior to the layoff, JAMCO only

laid off the remaining four (4) identified. The Board

found that JAMCO’s method of selection was prompted

by anti-union animus because JAMCO changed its layoff

policy. (Appendix at 42a.)

The Board also based its finding of anti-union ani-

mus on conciliatory remarks allegedly made by a JAMCO

supervisor, Ray Maynard, while distributing the layoff

notices. Allegedly, Maynard remarked that the laid off

employees might be rehired after “this Union business

was over.” (Appendix at 36a.) The ALJ determined that

this remark was significant evidence that the layoff

selections were motivated by anti-union animus because

neither Maynard nor the other JAMCO supervisor,

Randy Dennis, present with him when the layoff notices

were distributed, denied that the remarks were made.

(Appendix at 39a.) In fact, both Maynard and Dennis did

deny making these remarks. (Appendix at 53a-56a.)

The Union further complained that JAMCO unlaw-

fully influenced election results by threatening that

JAMCO would close, move, or change its name if the

employees elected Union representation. This allegation

arose from comments by Dave Edell, a JAMCO Project

Manager, during an informational meeting with JAMCO

employees at which Edell commented on the closing of a

unionized competitor. The Board’s finding of unlawful

threats is based solely on the contradicted testimony of a

single JAMCO employee, James Fletcher. The ALJ stated

that he credited Fletcher’s testimony because the ALJ

found no specific denials that Edell made the alleged

threats. (Appendix at 27a.) The record reveals, however,

that several witnesses denied that Edell ever made the

unlawful statements (Appendix at 57a-60a.), and Fletcher

on cross examination admitted that the only closing Edell

mentioned was that of Pittsburgh Plate Glass (hereinafter

“PPG”), a unionized competitor. The Board acknowl-

edged the evident contradiction but proceeded to uphold

the ALJ’s unfounded credibility choice. (Appendix at 2a-

3a; Note 2.)

Administrative Law Judge Hutton S. Brandon con-

ducted a hearing on the complaint on February 10 and 11,

1988. On April 4, 1988, the ALJ issued his decision that

JAMCO had committed unfair labor practices in violation

of Sections 8(a)(1) and (3) of the National Labor Relations

Act (hereinafter the “Act”), and recommended a second

election. (Appendix at 49a.)

Adopting the recommended order of the ALJ with

some modifications, on June 12, 1989 the Board issued its

Decision, Order and Direction of Election, ordering

JAMCO to cease and desist from violations of the Act and

to take specified affirmative actions, and ordering the

election results to be set aside and a second election to be

conducted. (Appendix at 2a-8a.)

On April 23, 1990, the Board filed with the Eleventh

Circuit Court of Appeals an application for enforcement

of its June 12, 1989 order. JAMCO filed an answer to the

enforcement action denying that it had violated the Act

or had committed any unfair labor practice and request-

ing that the application be dismissed. On February 22,

1991, the Eleventh Circuit Court of Appeals issued a per

curiam decision which read, in its entirety, “A review of

the record reflects sufficient evidence to uphold and en-

force the order of the Board. Questions of credibility are

peculiarly within the purview of the fact finder. En-

forced.” (Appendix at 1a.) On March 14, 1991, JAMCO

filed a suggestion for Rehearing En Banc. The Eleventh

Circuit denied the suggestion on April 26, 1991.

JAMCO has filed this Petition For a Writ for

Certiorari on the grounds that it committed no unfair

labor practices in connection with the layoffs or with

Edeli’s remarks.

EXISTENCE OF JURISDICTION

The Eleventh Circuit Court of Appeals had jurisdic-

tion over this matter pursuant to 29 U.S.C § 160(e).

REASONS FOR GRANTING THE WRIT

SUMMARY OF ARGUMENT

A fundamental tenant of our nation’s constitution

and of the statutory administrative and appellate

procedures of the Act is the ability of a citizen to receive a

due process hearing and obtain a reasoned decision

which is subject to meaningful appellate review. U.S.

Const. Amend. V; 29 U.S.C. § 160(f). This fundamental

concept is being eroded by the now common practice of

administrative agencies and their administrative law

judges to couch their opinions on credibility issues

instead of the legal issues involved, thus essentially

“appeal-proofing” their decisions. This is precisely what

happened in this case.

The Board based its opinion in this case on credibility

when, in fact, the controlling issues were questions of

law. First, it is a question of law whether the Employer

had a right to conduct an economically necessitated layoff

on the objective basis of seniority during the pendency of

a Union election. The ALJ and the NLRB found that the

layoff was economically warranted and that the decision

to implement a layoff was not unlawful. However, the

ALJ and the Board transformed a legal issue of the right

of the Employer to layoff on seniority into an irrelevant

“credibility” issue of Union witnesses.

Second, it is a question of law as to whether the

NLRB’s decision could be founded on the ALJ’s erro-

neous finding that the Employer made no specific denials

of a Union witness’ testimony that, on an isolated

occasion, the Employer threatened it would close its doors

if the Union was selected. In fact, this alleged threat had

been vigorously denied by two witnesses for the Em-

ployer and contradicted by the “credible” Union witness’

own testimony on cross-examination. Despite his erro-

neous finding that the alleged threat had not been denied,

the Board upheld the ALJ's decision solely on the basis of

his determination regarding the credibility of one Union

witness. The Board cannot legally base its decision on a

finding by the ALJ regarding “credibility” when the ALJ

expressly based his decision solely upon the erroneous

fundamental legal question of whether the Employer had

contested the statement.

The Eleventh Circuit Court of Appeals summarily

upheld the Board’s decision in a two-sentence per curiam

decision which expressly stated that the appellate court

was deferring to the fact finder’s credibility determina-

tions. (Appendix at 1a.)

Our system of checks and balances will deteriorate if

administrative agencies are permitted to continue dis-

guising questions of law as “credibility” issues in order to

avoid meaningful scrutiny by appellate courts who often

“rubber stamp” the credibility determinations of adminis-

trative agencies. It is submitted that this in an appropriate

case to grant certiorari to so that the United States

Supreme Court may revisit the scope of judicial review of

administrative decisions in light of this practice which

abuses due process and evades judicial scrutiny.

DISCUSSION

A. THE FIFTH AMENDMENT’S GUARANTEE OF

DUE PROCESS AND THE NATIONAL LABOR

RELATIONS ACT’S MANDATE OF JUDICIAL

REVIEW SHOULD PROTECT AGAINST

ARBITRARY ADMINISTRATIVE DECISIONS

WHICH IGNORE CONTROLLING LEGAL QUES-

TIONS AND ARE INTENTIONALLY DECIDED ON

“CREDIBILITY” ISSUES OF FACT IN ORDER TO

EVADE APPELLATE REVIEW.

The issue before this Court is not the credibility of

witnesses but the substantive and fundamental due pro-

cess affording parties in agency litigation the right to have

legal issues decided upon the law. By couching its unfair

labor practice findings in the guise of “credibility,” the

Board has effectively insulated a legally insufficient deci-

sion from the scrutiny of the appellate court.

The standard of judicial review under the Act is

whether there is substantial evidence in light of the

record taken as a whole to support the Board’s findings of

fact. Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951);

29 U.S.C. § 160(f). In determining whether substantial evi-

dence supports an agency’s findings, reviewing courts

exhibit great deference to the credibility choices of an

administrative law judge. Ona Corporation v. NLRB, 729

F.2d 713 (11th Cir. 1984). This is what happened in the

case at hand. The Board deferred to the credibility deter-

minations of the ALJ as did the Eleventh Circuit Court of

Appeals. In fact, The Eleventh Circuit’s per curiam opin-

ion simply stated: “A review of the record reflects suffi-

cient evidence to uphold and enforce the order of the

Board. Questions of credibility are peculiarly within the

purview of the fact finder. Enforced.” (Appendix at ia.)

This case illustrates the trend in proceedings before

the Board, whereby legal issues are not squarely decided at

the administrative level because the agency cloaks its

findings with “credibility” choices knowing that an appel-

late court is not likely to probe the sufficiency of the evi-

dence supporting such determinations. The legal merits

of the dispute become buried beneath the phantom

credibility choices of the Board.

Although certain deference may be afforded to the

Board, “Congress did not intend that [this Court should]

abdicate [its] judicial function and merely rubber stamp

the Board’s rulings.” NLRB v. Deauville Hotel, 751 F.2d

1562 (11th Cir. 1985). To do so robs an employer of its due

process right of judicial review and puts the power of a

court in the hands of an administrative agency, in viola-

tion of the Act; see NLRB v. Arkansas Grain Corp., 392

F.2d 161 (8th Cir. 1968). A reviewing Court has an obliga-

tion under the Act to ensure that the Board’s finding has

substantial evidentiary support. Substantial evidence

means such evidence as would lead a reasonable mind to

accept the Board’s conclusions. Consolidated Edison Co.

v. NLRB, 305 U.S. 197, 229 (1938). Enforcement of the

Board’s order in this case will have the pernicious effect

of denying substantive due process of law in favor of def-

erence to the credibility determinations of the adminis-

trative trier of fact that obscured the controlling questions

of law.

B. DURING A UNION ELECTION CAMPAIGN AN

EMPLOYER MAY LEGALLY LAYOFF EMPLOYEES

IN RESPONSE TO ECONOMIC NECESSITY ON THE

OBJECTIVE BASIS OF SENIORITY.

The Board erred as a matter of law when it failed to

reverse the ALJ’s finding that four (4) layoffs conducted by

JAMCO prior to the election were discriminatory and

thus unlawful. A layoff only violates the Act if it is moti-

vated by anti-union animus. American Ship Bldg. Co. v.

NLRB, 380 U.S. 300 (1965). In this case the Board found

that the layoff was motivated by economic necessity and

was not unlawful. During the period preceding the lay-

offs, JAMCO worked on three large projects in the At-

lanta, Georgia area. Most of these projects were beginning

to phase down at the time the organizing election began.

The ALJ had no trouble in determining that the layoffs at

issue were prompted by economic considerations.

(Appendix at 38a-39a.) Therefore, the layoffs only violate

the Act if JAMCO selected the employees for layoff on the

basis of the employees’ pro-union sentiments.

The Board acknowledges that JAMCO based its selec-

tion of whom to layoff strictly on seniority. (Appendix at

38a, 41a.) The Board’s position is that the layoff violated

the Act because JAMCO had based a previous layoff

selection on two factors, ability to perform the work and

seniority. (Appendix at 41a.) The selection of employees

to be laid off in the present case was not a change in policy

by the Employer. All employees had the ability to perform

the work and had, in fact, been performing the work.

Therefore, the Employer was following past practice

when it laid off the four (4) employees solely on the

objective basis of seniority. The ALJ and the Board

erroneously concluded that laying off on the basis of

seniority was a change in policy and evidenced JAMCO’s

anti-union animus. (Appendix at 41a.)

The ALJ seized upon Union witness statements that

they were selected for layoff because of their relationship

to the Union. These statements were vigorously denied

by the Employer’s managers who were alleged to have

made them. See infra p. 13. However, this credibility issue

is not controlling. What is controlling was that the

Employer did follow its past practice of laying off

according to seniority when all employees were deemed

qualified to do the required work. The Union supporters

selected for layoff were the least senior employees. It is a

settled question of law that pro-union sentiments cannot

protect an employee from economic layoff. See Serv-Air,

Inc. v. NLRB, 395 F.2d 557 (10th Cir. 1968), cert. denied,

393 U.S. 840 (1968).

Absent a change in policy evidently motivated by

anti-union animus, an employer may legally select em-

ployees for layoff on the basis of strict seniority. Jones

Ceiling, Inc., 263 N.L.R.B. 469 (1982). JAMCO was legally

entitled to conduct a layoff because of the economic ne-

cessity created by the phase down of its operations in late

summer of 1987. An economic layoff will justify the dis-

charge of employees, including union members, even if

the employer has knowledge of the employee’s protected

union activity. For example, in Dawson Carbide Indus-

tries, Inc. v. NLRB, 782 F.2d 64 (6th Cir. 1986), the Board

found that the employer’s economic decline justified a

layoff. Similarly, in NLRB v. Atlanta Coca-Cola Bottling

Company, 293 F.2d 300 (Sth Cir. 1961), the Fifth Circuit

Court of Appeals took judicial notice of the fact that dur-

ing the time period in question, the United States had

suffered from a recession. Considering the record as a

whole, including the employer's testimony regarding de-

clining sales, the Court held that the layoff was lawfully

motivated by economic reasons. See also Triangle Sheet-

metal Works, Inc., 238 N.L.R.B. 517 (1978) (Board reversed

administrative law judge and found no discriminatory

discharge in light of employer’s overall economic decline

and objective selection of employees for layoff).

In this case, the Employer’s anti-union animus is

“proved” by conciliatory remarks allegedly made by

JAMCO supervisors while distributing the layoff notices.

Purportedly, a JAMCO supervisor told one of the laid off

employees that he might be rehired “once this Union

business was over.” (Appendix at 36a.) The ALJ

erroneously found that this remark was never rejected by

said supervisor. (Appendix at 38a-39a.) In fact, the

supervisor expressly stated, “I have never said anything

about Union activities as far as they [the laid off

employees] go.” (Appendix at 54a.) Further, a second

JAMCO supervisor present at the time the employees

were laid off, confirmed that no comments regarding

Union activities were made at the time of the layoff.

(Appendix at 55a-57a.) These alleged comments were the

issue seized upon by the ALJ to support his decision based

on “credibility.” In fact, this credibility issue of anti-

union animus toward the laid off employees is

immaterial to the controlling legal issue that the

Employer was entitled to conduct an economic layoff on

the basis of seniority and that these employees were

automatically selected for layoff because of their lack of

seniority. The Board is obviously using credibility choices

in an effort to sustain its holding when its holding is not

warranted by law. By deferring to such unsupported

credibility choices, the standard of appellate review is

being reduced from “substantial” evidence to “any

credibility” evidence.

C THE BOARD CANNOT UPHOLD AN ALJ’S FIND-

ING OF AN EMPLOYER’S THREAT TO CLOSE ITS

DOORS BASED ON “CREDIBILITY” WHEN THE

ALJ RELIED ON AN ERRONEOUS CONCLUSION

TO MAKE HIS FINDING.

During the time of the organizational campaign, a

JAMCO supervisor made a statement at a meeting with

some employees referring to the recent closing of a local

unionized competitor, PPG. Many of the employees pre-

sent had previously worked for or competed against PPG

and were curious about the closing. (Appendix at 57a.)

The ALJ found that this statement was evidence of an

unlawful threat that JAMCO weuld close its doors if its

workers unionized. The ALJ expressly based this finding

on the fact that there had been no specific denial that the

manager made the alleged threats.

On the other hand, however, I find no specific

denials by [|[AMCO]’s witnesses on the record of

Fletcher's testimony to the effect that if the

Union were selected [JAMCO] would close,

move, or change its name. (Appendix at 39a.)

To the contrary, the record as a whole before the ALJ

clearly shows that several witnesses denied that the Em-

ployer’s manager made unlawful statements (Appendix

at 57a-60a.), and that the only closing he mentioned was

that of the unionized competitor.

The Board acknowledged this glaring error; yet, it

failed to reverse or modify the ALJ’s finding; rather it up-

held the ALJ’s findings based upon alleged “credibility”

choices.

We adopt the [AL]J]’s finding that Project Man-

ager Edell violated the Act by telling the em-

ployees that [J[AMCO] would close, move, or

change its name if the employees selected the

Union. In adopting, however, we find it unnec-

essary to rely upon the [ALJ]’s statement that

there were no specific denials by [JAMCO]’s wit-

nesses of employee Fletcher’s testimony on the

point. Instead, we base our finding that Edell

actually made such a statement on the [AL]]’s

specifically crediting Fletcher's “believable tes-

timony” and his reliance on Edell’s admitted

references to the closing of PPG, another union

contractor. (Appendix at 2a, 3a; Note 2.)

(emphasis added).

Here the basis for the ALJ’s decision is a lapse in the ALJ's

memory or mistake as there were numerous denials that

the allegedly unlawful statements were made. A

reviewing court should legally and properly disregard

credibility choices where the record as a whole shows that

they were based on an erroneous assumption as in this

case.

Furthermore, the record shows that Fletcher

contradicted his own testimony on cross-examination,

acknowledging that Edell’s remarks that “they” would

“Close the doors” referred to the unionized competitor,

not JAMCO. (Appendix at 60a-61a.) Thus, by ignoring the

ALJ’s error, the Board transformed the self-contradicted

testimony of one Union witness into evidence sufficient

to sustain the Board’s finding of an unfair labor practice

by JAMCO. (Appendix at 2a, 3a; Note 2.) Reviewing courts

have an obligation to look beyond such insufficient

credibility determinations.

(T]he Fifth Circuit has delineated certain situa-

tions in which the Court will not be bound by

the ALJ’s credibility determinations. [citations

omitted] First, the ALJ’s credibility finding will

be disregarded if it is inherently unreasonable or .

self-contradictory. [citations omitted] Second,

the reviewing court is “not compelled to re-

strict” credibility choices “based on an inade-

quate reason, or no reason at all.” [citation

omitted]

Ona Corporation v. NLRB, 729 F.2d 713, 719 (11th Cir.

1984) (holding AL]’s credibility determination was self-

contradictory and unsupported by the evidence).

Similarly, in Custom Recovery, Division of Keystone

Resources v. NLRB, 597 F.2d 1041, (Sth Cir. 1979) the

court held:

Although this court generally gives great defer-

ence to the credibility resolutions of the finder

of fact, see NLRB v. Transway, Inc., 410 F.2d 368,

370 (Sth Cir. 1969), when the theory of credibility

is faulty, then the credibility resolution itself

must fall. Id. at 1045.

In Custom, the court held that the administrative

law judge credited one witness’ version of the alleged

unlawful interrogation more than that of another

witness due to a mistakenly perceived inconsistency in

1 nee

the second witness’ testimony. Because there actually was

no contradiction in the second witness’ testimony, the

court held that the judge and the Board were wrong in

discrediting the testimony and that the finding of

unlawful interrogation was not supported by substantial

evidence in the record as a whole. See also NLRB v.

Florida Citrus Canners Cooperative, 311 F.2d 541 (5th Cir.

1963) (petition for enforcement denied where basis for

credibility finding was erroneous and finding of unfair

labor strike not supported by substantial evidence in the

record).

The Board’s finding that JAMCO illegally threatened

that it would close, move or change its name is based

solely on a legally insufficient “credibility choice” by the

ALJ. Careful review of the record as a whole reveals that

the Board’s credibility choice is legally unwarranted.

D. A REVIEWING COURT SHOULD REVIEW AN

ADMINISTRATIVE AGENCY’S DECISION AND

REVERSE PHANTOM CREDIBILITY FINDINGS

THAT ARE NOT BASED UPON SUBSTANTIAL

EVIDENCE IN THE RECORD AND WHERE QUES-

TIONS OF LAW CONTROL.

In Universal Camera Corp. v. NLRB, 340 U.S. 474

(1951), this Court held that any evidence in the record

which detracts from a decision of an administrative

agency must be taken into account by the reviewing court.

[A] reviewing court is not barred from setting

aside a Board decision when it cannot conscien-

tiously find that the evidence supporting a deci-

sion is substantial, when viewed in the light

that the record and its entirety furnishes, includ-

ing the body of evidence opposed to the Board’s

review. Id., at 488.

Universal Camera was decided in response to a leg-

islative mandate that courts must scrutinize more care-

fully the reasonableness and fairness of the Board’s deci-

sions. In that opinion, this Court recognized that review-

ing courts should permit themselves to respond to what

they perceive as the requirements of justice under the cir-

cumstances presented rather than allow themselves to be

imprisoned by formulas such as blind deference to credi-

bility determinations. Thus, while an agency’s decisions

may be given a presumption of regularity, the reviewing

court is required to give the agency’s action “a thorough,

probing, in-depth review.” Citizens to Preserve Overton

Park v. Volpe, 401 U.S. 402 (1971).

A reviewing court should not allow the Board to

sweep away significant controlling legal arguments as

graphically demonstrated by this case. The legal issue of

the Employer’s right to select employees for an economi-

cally-necessitated layoff based upon their seniority should

control, not the phantom credibility issue of statements

by Union sympathizers who were selected for layoff due

to their lack of seniority. Further, the Board is not free to

ignore legally erroneous findings by the ALJ that various

statements were not denied, when in fact they were. The

Board cannot legally put its imprimatur on the ALJ's

credibility findings when his decision was based upon an

erroneous foundation.

The disguising of legal issues as credibility issues

must receive more judicial scrutiny than the simple per

curiam opinion issued by the Court of Appeals in this

case, that “Questions of credibility are particularly within

on) cil Mettawa chin

the purview of the fact-finder.” (Appendix at la.) It is

submitted that, in this case, the questions of credibility

should be within the purview of a reviewing court. It is

time that the United States Supreme Court revisit the

issue of how courts should go about their review of

agency decisions in light of the now common practice of

couching controlling legal questions as phantom

credibility issues, a practice which is becoming the darling

of the administrative law judges and their agencies.

CONCLUSION

JAMCO respectfully requests that this Court grant

Petitioner's Writ for Certiorari because substantial

questions of law arise where arbitrary administrative

decisions are insulated from judicial review under the

cloak of “credibility choices” by the trier of fact.

Respectfully Submitted,

MCNEILL STOKES

Counsel of Record

FRANKEL, HARDWICK,

TANENBAUM & FINK, P.C.

Suite 400

359 East Paces Ferry Road

Atlanta, Georgia 30305

(404) 266-2930

Attorney for the Petitioner

May 23, 1991

ies

APPENDIX

< }

P :

. ;

t *

‘

2 . >

‘ x ;

3a :

_ _

. : .

aS ob

. <

- 4

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 90-8377

NLRB Nos. 10-CA-22910, 10-RC-13540

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

versus

JAMCO (JOHNSON

ARCHITECTURAL METAL COMPANY),

Respondent.

APPLICATION FOR ENFORCEMENT OF AN ORDER OF

THE NATIONAL LABOR RELATIONS BOARD

(February 22, 1991)

Before FAY and JOHNSON, Circuit Judges, and PECK’,

Senior Circuit Judge.

PER CURIAM:

A review of the record reflects sufficient evidence to

uphold and enforce the order of the Board. Questions of

credibility are peculiarly within the purview of the fact

finder.

Enforced.

* Honorable John W. Peck, Senior U.S. Circuit Judge for the Sixth

Circuit, sitting by designation.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

JAMCO (JOHNSON

ARCHITECTURAL METAL COMPANY)

Cases 10-CA-22910

and 10-RC-13540

GLAZIERS, ARCHITECTURAL, METAL &

GLASS WORKERS LOCAL UNION 1940

DECISION, ORDER, AND DIRECTION

OF SECOND ELECTION

(June 12, 1989)

On April 4, 1988, Administrative Law Judge Hutton

S. Brandon issued the attached decision. The Respondent

filed exceptions and a supporting brief.

The National Labor Relations Board has delegated 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 brief and has decided

to affirm the judge's rulings, findings,? and conclusions as

' The General Counsel and the Charging Party did not except to the

judge’s various dismissals of certain complaint allegations.

2 The Respondent has 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.

modified and to adopt the recommended Order as

modified.

Amended Conclusions of Law

We adopt the judge's finding that Project Manager Edell violated

the Act by telling the employees that the Respondent would close,

move, or change its name if the employees selected the Union. In

adopting, however, we find it unnecessary to rely on the iudge’s

statement (at sec. 11,B,4, par. 9) that there were no specific denials by

the Respondent's witnesses of employee Fletcher's testimony on the

point. Instead, we base our finding that Edell actually made such a

statement on the judge's specifically crediting Fletcher’s “believable

testimony” and his reliance on Edell’s admitted references to the

closing of PPG, another union contractor. Further, in light of the clear

threat of loss of jobs involved in Edell’s unlawful statement, we find it

unnecessary to pass on the judge's further finding that Edeil also

unlawfully threatened employees with the loss of jobs by telling them

that the election of the Union would result in fewer jobs for the

Respondent’s employees because metal frame work would be assigned

to the ironworkers.

In addition to finding an unlawful threat of plant closure,

Member Cracraft would affirm the judge’s finding that the

Respondent's statement that the ironworkers would be brought in to

handle the metal frames and the Respondent’s employees who were

then doing metal frames would go to the bench in the event the

Union won the election was an unlawful threat of job loss in violation

of Sec. 8(a)(1).

Given the judge's crediting on demeanor grounds of employees

Kerr and Harris over Supervisors Maynard and Dennis, we further

find it unnecessary to rely on the judge’s statement at sec, II, C, 2, par. 2

that Maynard and Dennis failed to contradict Kerr’s testimony that

Maynard had said that their recall from layoff would probably be after

“this Union business” was over.

In adopting the judge’s findings on unlawful interrogation,

Member Cracraft does not rely on Sunnyvale Medical Clinic, 277

NLRB 1217 (1985).

1. Substitute the following for Conclusion of Law 3.

“3. By coercively interrogating an employee regard-

ing his union membership or activities; and by threaten-

ing to close, move, or change its name if its employees

selected the Union to represent them, the Respondent

engaged in, and is engaging in, unfair labor practices

within the meaning of Section 8(a)(1) of the Act.”

2. Substitute the following for Conclusion of Law 6.

“6. The Union’s Objections 1 and 7 have merit and

are sustained, while Objections 3, 6, and 9 are without

merit and are overruled and Objection 8 need not be

passed on.”

ORDER

The National Labor Relations Board adopts the rec-

ommended Order of the administrative law judge as

modified and set forth in full below and orders that the

Respondent, JAMCO (Johnson Architectural Metal Com-

pany), Atlanta, Georgia, its officers, agents, successors, and

assigns, shall

1. Cease and desist from

(a) Coercively interrogating employees regarding

their membership or activities on behalf of Glaziers, Ar-

chitectural, Metal & Glass Workers Local Union 1940, or

any other labor organization.

(b) Threatening its employees that it will close its fa-

cility, move, or change its name if they select the above-

named or any other labor organization to represent them.

otherwise discriminating against employees in order to

discourage their activities on behalf of the above-named

or any other labor organization.

(d) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of the

rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Offer Roman Modest, Mitchell Kerr, Charles

Russell, and Robert Harris immediate and full

reinstatement to jobs occupied by them prior to any

discrimination against them or, if those jobs no longer

exist, to substantially equivalent positions, without

prejudice to their seniority or other rights and privileges

previously enjoyed, and make them whole with interest

for any loss of earnings and other benefits suffered as a

result of the discrimination against them in the manner

set forth in the remedy section of the decision.

(b) Preserve and, on request, make available to the

Board or its agents for examination and copying, all pay-

roll records, social security payment records, timecards,

personnel records and reports, and all other records nec-

essary to analyze the amount of backpay due under the

terms of this Order.

unlawful discharges and notify the employees in writing

that this has been done and that the discharges will not be

used against them in any way.

(d) Post at its facility in Atlanta, Georgia, and all job-

sites where it is currently doing business and employing

employees in the unit described in Case 10-RC-13540,

copies of the attached notice marked “Appendix.” Copies

of the notice, on forms provided by the Regional Director

for Region 10, after being signed by the Respondent's au-

thorized representative, shall be posted by the Respon-

dent immediately upon receipt and maintained for 60

consecutive days in conspicuous places including all

places where notices to employees are customarily posted.

Reasenable steps shall be taken by the Respondent to en-

sure that the notices are not altered, defaced, or covered

by any other material.

(e) Notify the Regional Director in writing within 20

days from the date of this Order what steps the Respon-

dent has taken to comply.

IT IS FURTHER ORDERED that the compiaint is

dismissed insofar as it alleges violations of the Act not

specifically found.

IT IS FURTHER ORDERED that the Union's Objec-

tions I and 7 are sustained, that Objections 3, 6, and 9 are

overruled, that the election conducted on October 14,

1987, is set aside, and that Case 10-RC-13540 is severed

from Case 10-CA-22910 and remanded to the Regional

Director for Region 10 to conduct a new election when

the Regional Director deems it appropriate.

> If this Order is enforced by a judgment of a United States court of

appeais, the words in the notice reading “POSTED BY ORDER OF THE

NATIONAL 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.”

DIRECTION OF SECOND ELECTION

A second election by secret ballot shali be held

among the employees in the unit found appropriate,

whenever the Regional Director deems appropriate. The

Regional Director shall direct and supervise the election,

subject to the Board’s Rules and Regulations. Eligible to

vote are those employed during the payroll period ending

immediately before the date of the Notice of Second

Election, including employees who did not work during

that period because they were ill, on vacation, or tem-

porarily laid off. Also eligible are employees engaged in

an economic strike that began less than 12 months before

the election date and who retained their employee status

during the eligibility period and their replaceiments.

Those in the military services may vote if they appear in

person at the polls. Ineligible to vote are employees who

have quit or been discharged for cause since the payroll

period, striking employees who have been discharged for

cause since the strike began and who have not been re-

hired or reinstated before the election date, and employ-

ees engaged in an economic strike that began more than

12 months before the election date and who have been

permanently replaced. Those eligible shall vote whether

they desire to be represented for collective bargaining by

the Glaziers, Architectural, Metal & Glass Workers Local

Union 1940.

To ensure that all eligible voters have the opportu-

nity to be informed of the issues in the exercise of their

statutory right to vote, all parties to the election should

have access to a list of voters and their addresses that may

be used to communicate with them. Excelsior Underwear,

156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co., 394

U.S. 759 (1969). Accordingly, it is directed that an eligibility

list containing the names and addresses of all the eligible

voters must be filed by the Employer with the Regional

Director within 7 days from the date of the Notice of

Second Election. The Regional Director shall make the

list available to all parties to the election. No extension of

time to file the list shall be granted by the Regional Direc-

tor except in extraordinary circumstances. Failure to

comply with this requirement shall be grounds for setting

aside the election whenever proper objections are filed.

Dated, Washington, D.C.

June 12, 1989

James M. Stephens, Chairman

Mary Miller Cracraft, Member

Dennis M. Devaney, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

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 Reiations Act and has or-

dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize

To form, join, or assist any union

To bargain collectively through representatives of

their own choice

To act together for other mutual aid or protection

To choose not to engage in any of these protected

concerted activities.

WE WILL NOT coercively interrogate our employees

regarding their membership in, or activities on behalf of,

Glaziers, Architectural, Metal & Glass Workers Local

Union 1940, or any other labor organization.

WE WILL NOT threaten to close, move, or change our

name if employees select the above-named or any other

labor organization to represent them.

WE WILL NOT discriminatorily select our employees for

layoff or otherwise discriminate against them because of

their union activities.

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce employees in the exercise of

rights guaranteed them by Section 7 of the Act.

WE WILL offer Roman Modest, Mitchell Kerr, Charles

Russell, and Robert Harris immediate and full re-

instatement to their former jobs or, if those positions no

longer exist, to substantially equivalent positions, with-

out prejudice to their seniority or other rights and privi-

leges, and WE WILL make them whole with interest for

any loss of pay they suffered as a result of the discrimina-

tion against them.

WE WILL remove from our files any reference to the

discharges of Roman Modest, Mitchell Kerr, Charles Rus-

sell, and Robert Harris and notify the employees in writ-

ing that this has been done and that the discharges will

not be used against them in any way.

JAMCO JOHNSON ARCHITECTURAL

METAL COMPANY)

(Employer)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material. Any questions

concerning this notice or compliance with its provisions

may be directed to the Board's Office, 101 Marietta Street,

NW., Suite 2400, Atlanta, Georgia 30323-2400, Telephone

404-331-2886.

10a

Mt cite 2 aE

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

ATLANTA BRANCH OFFICE

(April 4, 1988)

JAMCO JOHNSON ARCHITECTURAL METAL

COMPANY)

and CASE 10-CA-22910

GLAZIERS, ARCHITECTURAL, METAL &

GLASS WORKERS LOCAL UNION 1940

JAMCO (JOHNSON ARCHITECTURAL METAL

COMPANY)

Employer

and CASE 10-RC-13540

GLAZIERS, ARCHITECTURAL, METAL &

GLASS WORKERS LOCAL UNION 1940

Petitioner

Gaye Nell Hymon, Esq., for the General Counsel.

Paul L. Styles, Jr., Esq., (Blackburn, Schuster, King &

King), of Atlanta, GA for the Charging Party-

Petitioner.

McNeill Stokes and John Underwood, Esqs., (Stokes,

Shapiro, and Wedge) of Atlanta, GA, for the

Respondent-Employer.

DECISION

Statement of the Case

HUTTON S. BRANDON, Administrative Law Judge.

This matter was tried at Atlanta, Georgia on 10 and 11

lla

February 1988. The charge was filed by Glaziers, Architec-

tural, Metal & Glass Workers Local Union 1940, herein

called the Union, on 5 October 1987,’ and amended 30 Oc-

tober and 4 November. The complaint issued on 23

November alleging that Jamco (Johnson Architectural

Metal Company), herein called Respondent or the Com-

pany, violated Section 8(a)(3) and (1) of the National La-

bor Relations Act, herein called the Act. The issues pre-

sented are whether Respondent, (a) unlawfully interro-

gated employees regarding their union activities, (b)

made various unlawful threats to employees to discour-

age their union support, (c) made unlawful promises to

employees regarding wage increases and insurance bene-

fits to dissuade them from supporting the Union, and (d)

discriminatorily discharged four employees on 4 Septem-

ber because of their activities on behalf of the Union and

other concerted activities.

The record shows relative to representation case Case

10-RC-13540 that the petition was filed by the Union on 5

August. Following a representation case hearing on 21

August, a Decision and Direction of Election issued on 15

September and an election was held on 14 October. Of ap-

proximately 59 eligible voters there were 13 votes for, and

39 against, representation with 7 challenged ballots. The

Union timely filed nine numbered objections to the elec-

tion on 26 October, and as noted, the Regional Director

found the objections were largely coextensive with the

allegations in the complaint in Case 10-CA-22910, and, in

an Order Directing Hearing and Consolidating Cases, is-

sued on 4 December, ordered that the representation case

1 All dates hereafter are in 1987 unless otherwise indicated.

12a

be consolidated with the unfair labor practice case for

hearing.2

On the entire record including my observation of the

demeanor of the witnesses, and after consideration of the

briefs filed by the General Counsel, and Respondent, and

the oral argument of the Charging Party made at the hear-

ing. I make the following:

Findings of Fact

I. Jurisdiction

Respondent is a Georgia corporation with an office

and place of business in Atlanta, Georgia where it is en-

gaged in the erection of curtain walls, stone work, caulk-

ing and glazing. During the calendar year preceding is-

suance of the complaint Respondent purchased and re-

ceived at its Atlanta, Georgia jobsites, materials and sup-

plies valued in excess of $50,000 directly from suppliers

located outside the State of Georgia. The complaint al-

leges, Respondent’s answer admits, and I find that Re-

spondent is an employer engaged in commerce within

the meaning of Section 2(6) and (7) of the Act. The com-

plaint also alleges, Respondent also admits, and I further

find that the Union is a labor organization within the

meaning of Section 2(5) of the Act.

Il. The Alleged Unfair Labor Practices

A. Background

Respondent, at the times material herein, was en-

gaged in the building and construction industry installing

2 The withdrawal of Objections 2, 4, and 5 by the Union was approved

in the Order Directing Hearing.

13a

and glazing metal framed curtain walls, with construc-

tion jobs in the Atlanta, Georgia metropolitan area as

well as in Florida, Tennessee, and North Carolina. The

Atlanta jobs including the IBM Tower, Corporex, Con-

course 5, and Lenox hotel, are large multi-storied com-

mercial structures. In Florida Respondent was engaged in

work at the North Carolina National Bank building in

Tampa. Different work crews were employed at each of

these locations with each location or job headed by a job

superintendent. Hiring of employees was customarily

done at each project, but Respondent had in the past

maintained a corp of skilled employees which it trans-

fered between projects as old jobs were completed and

new ones begun.

Respondent’s employees historically had been un-

represented, and the record reveals no prior attempts by

employees at union representation. The record also fails

to reveal precisely when the Union organizational cam-

paign involved in this case began, but it implies that it

began with Respondent’s employment of Johnnie Lam-

bert. Lambert testified herein for the General Counsel that

he was hired by Respondent on 24 July, apparently at the

IBM Tower jobsite and worked for one week during

which time Lambert obtained signatures on union au-

thorization cards from an unspecified number of em-

ployees. Lambert was discharged by Respondent about 31

July, and although his discharge was alleged to be dis-

criminatory by the Union in the initial and first amended

charge herein, no such allegation is contained in the last

amended charge or the complaint allegations. The dis-

charges which were alleged in the complaint to be dis-

criminatory and which were litigated are discussed below

14a

following discussion of the alleged independent viola-

tions of Section 8(a)(1) of the Act.

B. The Alleged Independent Violations of Section 8(a)(1)

of the Act.

1. The Conduct of Ray Mayrard

At all material times Ray Maynard was employed by

Respondent as its job superintendent on the Concourse 5

site in North Atlanta. The complaint alleges that on 5

August Maynard interrogated employees concerning

their Union membership, activities and desires. Roman

Modest, an alleged discriminatee in this case, testified in

support of this allegation that he sought a job from May-

nard on 4 August at the Concourse 5 jobsite. Modest was

briefly interviewed by Maynard, and as the two were

headed toward Maynard’s truck, an unidentified air con-

ditioning worker commented to Maynard that he should

hire Modest, that Modest was a good worker. Maynard

then asked Modest if he were affiliated with a union, and

Modest responded that he was trying to get on with the

Union but that they were not taking any new members.

Modest in fact was a member of the Union and had been

since 1984. Following his hiring Modest participated in

the Union’s organizational effort and testified at the hear-

ing in the representation case on 21 August.

The General Counsel and Charging Party argue that

Maynard’s questioning Modest about his Union affilia-

tion was unlawful. Maynard, while a witness, did not

deny the question Modest attributed to him. Accordingly,

and because Modest’s testimony was clear, straightfor-

ward, and specific, I credit such testimony and find May-

nard asked the question claimed by Modest. Not all ques-

15a

tioning of an employee regarding unions by a supervisor

is unlawful. See Sunnyvale Medical Clinic, 277 NLRB

1217 (1985); Rossmore House, 269 NLRB 1176 (1984).

Maynard’s question was not accompanied in this instance

by any remark remotely suggesting any opposition to the

Union. Indeed, while not giving an entirely truthful re-

sponse to Maynard, Modest was not deterred from at least

indicating his union sympathy by telling Maynard that he

had tried to get into the Union. Moreover, Modest testi-

fied that he completed his application for employment

with Respondent by voluntarily indicating thereon

which prior jobs he had worked on were union or

nonunion. Finally, Modest was obviously hired notwith-

standing his revelation of an effort to join the Union.

Under these circumstances, I view Maynard’s question

was casual and innocuous, and more related to, if any-

thing, ascertaining Modest’s experience than to his po-

tential as a union organizer or supporter. I find May-

nard's question under the circumstances had no tendency

to coerce, and I find Respondent did not violate Section

8(a)(1) of the Act by such question.

The complaint also alleges that Maynard on or about

1 October threatened employees on the Concourse 5 job-

site that it would be futile for the employees to select the

Union as their collective bargaining representative by say-

ing Respondent would not “go Union” under any cir-

cumstances. No evidence was adduced on this allegation,

however, and it will be recommended that this complaint

allegation be dismissed.

2 Conduct Attributed to Tony Faulkner

Tony Faulkner was employed by Respondent as its

job superintendent on the IBM Tower. The complaint

l6a

Petits. ditdiine:

alleges that Faulkner interrogated an employee regarding

his Union membership on the IBM jobsite on or about 29

July. Proof of the allegation rests on the testimony of

Lambert who related that after he had been working on

the job a couple of days, having been employed 24 July,

Faulkner approached him and asked him if he was

Union. Lambert replied that he belonged to the Operating

Engineers. Faulkner then further inquired why Lambert

was not working out of the union hall and Lambert

replied that he didn’t want to. Lambert expressed uncer-

tainty about Faulkner’s further response. While it ap-

peared clear that Faulkner said Respondent was “not

union,” Lambert was unsure whether Faulkner added

that Respondent wasn’t “going union” or whether he

said Respondent “didn’t want a Union.”

Faulkner in testifying for Respondent admitted that

he asked Lambert questions about whether “he was carry-

ing any kind of book or a card or anything for a reference

on how long he had been a member of a union or any-

thing as far as experience-wise.” He further admitted that

Lambert replied he carried an Operator's card, and that

Faulkner had asked why he wasn’t operating equipment

rather then glazing. Faulkner claimed that his questions

were made in the context of trying to establish the extent

of Lambert’s glazing experience, since Lambert had

demonstrated by his work that he was not an experienced

glazier. In this regard, Faulkner testified that he had asked

Lambert, at the same time, the names of any companies

for which Lambert had previously preformed glazing

work.

Weighing the testimony of Lambert against that of

Faulkner I credit the former. Lambert impressed me as

17a

candid while Faulkner at times appeared evasive.

Moreover, I note that Faulkner did not specifically deny

Lambert’s testimony to the effect that Faulkner said

Respondent was “not Union.” That added remark was

inconsistent with an innocent question about union

membership as an indicator of past experience. Further,

the timing of Faulkner’s questions, coming as they did

only a few days after Lambert had been hired, are more in

keeping with an effort to ascertain union proclivity or

activity than to determine the extent of Lambert’s

experience. In light of this, and considering Faulkner's

further concession that sometime during Lambert's brief

one week of employment with Respondent Faulkner

learned he was a union organizer, I conclude that it was

more probable that Faulkner’s questions were not

innocuous. I find it more likely they were designed to

discover or verify Lambert’s Union proclivities.

Considered in context with Faulkner’s notation to

Lambert that Respondent was not union I find Faulkner's

questions tended to restrain or coerce employees in

violation of Section 8(a)(1), as alleged. An employee

questioned under the circumstances found would not

likely overlook the implication that union support

would engender Respondent’s displeasure with ail its

ramifications.

The complaint also alleges that Faulkner on or about

12 October threatened employees at the Concourse 5 job-

site that Respondent would close its plant if employees

joined the Union or engaged in union activities. No evi-

dence was adduced in support of this allegation. Accord-

ingly, dismissal of this complaint ailegation will be rec-

ommended.

18a

Wa cesses isce 0 nk nko

3. The Unlawful Conduct Attributed to Albert Bell

a. The Supervisory Status of Bell

Albert Beli at the material times herein was em-

ployed by Respondent at its NCNB jobsite in Tampa,

Florida. The complaint alleged, and Respondent denied,

that Bell was a supervisor, and that on or about 1 October

he unlawfully promised Respondent’s Tampa employees

increased benefits if they refrained from union activities.

Respondent contends that Bell was only a leadman and

an eligible employee as found in the Regional Director's

Decision and Direction of Election in Case 10-RC-13540.

Respondent at the hearing asserted that the General

Counsel is precluded from taking a position inconsistent

with the Regional Director’s decision by claiming herein

that Bell is a supervisor within the meaning of the Act. I

find no merit to Respondent’s contention. It is well set-

tled that a representation case finding that an individual

is not a supervisor is not binding in a subsequent unfair

labor practice proceeding involving as here, a violation of

Section 8(a)(1) of the Act, as opposed to an 8(a)(5)

allegation which would be deemed to be “related” to the

representation case findings and any resulting certifica-

tion. See Williamson Memorial Hospital, 284 NLRB No.

5, (29 May 1987); Serv-U-Stores, Inc., 234 NLRB 1143

(1978); Greenbriar Hotel, 216 NLRB 721, 723 (1975). How-

ever, the Regional Director's decision and the record in

the representation case, of which I have taken adminis-

trative notice, have been considered by me in addition to

the evidence presented before me in the unfair labor

practice proceeding in determining Bell's supervisory

status.

19a

Bell, in his testimony before me, described himself as

the foreman on the Tampa job, having been employed by

Respondent for about five years. While Bell denied that

he did any hiring and firing, he conceded that under the

direction of A. J. Hege, job superintendent, Bell scheduled

work and kept the work time of employees in a notebook.

Any disputes about the accuracy of the time kept was re-

solved between Bell and the employee involved. He

further conceded, and other record evidence supports the

fact, that he granted time off to employees without going

through Hege. Although, as noted, he did not directly

hire or fire employees, Bell made recommendations to

Hege regarding such actions, and he estimated that Hege

followed his recommendations on hiring 75 percent of

the time. However, Bell related that Hege "screens" the

hirings.

Bell testified he attends periodic meetings, usually

bimonthly, between the job superintendent, Hege, and

project manager Dave Edell. Further, in the absence of

Hege, Bell as representative of Respondent, attends meet-

ings between the job’s general contractor and subcontrac-

tors. An estimate in the record by employees James

Fletcher that Bell only worked with tools along with the

employees only 20 percent of the time was not specifically

contradicted by Beil. Moreover, Bell admitted that Re-

spondent had about four other “foremen” over a total of

about 20 employees who “reported” to Bell as “head

foreman,” and that he with the other foremen distributed

the work load to the employees.

Section 2(11) of the Act defines a supervisor as “any

individual having authority to layoff, recall, promote,

discharge, assign, reward, or discipline other employees,

20a

TEA fin 068

vs ith A ses

ei ll 9 Neely Oe wlan Poy EH

Ri iaicteiet ice sic saeis ten

or responsibly to direct them, or to adjust their grievances

or to effectively recommend such action, if in connection

with the foregoing the exercise of such authority is not of

a merely routine and clerical nature, but requires the use

of independent judgment.” Possession of one of these

enumerated powers is sufficient to establish supervisory

status. N.L.R.B. v. Edward G. Budd Mfg. Co., 169 F.2d 571,

576 (6th Cir. 1948), cert. denied 355 U.S. 908 (1949). I find

Bell to be a supervisor. The evidence herein specific to

Bell as opposed to leadmen generally whether or not also

called "foremen,” fully establishes that Bell kept the time

by which employees were paid. Further, he adjusted any

grievances on the accuracy of the time independently of

the job superintendent. Moreover, Bell even disciplined

employees by docking them a specified amount of time

for tardiness which he determined. It is further clear that

Bell independently assigned work, and substituted for the

project superintendent in his absence even in meetings

with the general contractor. In this respect, the record

fully establishes that degree of discretion in control of

employees which warrants the finding of Bell's supervi-

sory status.

b. The Conduct of Bell

The General Counsel’s contention that Bell made

unlawful promises is based upon the testimony of Tampa

employees Rudolph Guthrie and James Fletcher. Ac-

cording to Guthrie, around the first of October Bell ap-

proached him and Fletcher who were working together

on the job and told the two that he realized that they were

doing “frustrating work,” and that “We're not promising

you,” and “We're not trying to buy your vote or anything

like that,” but that “We're going to see what we can do

21a

about getting you more money.” Fletcher generally cor-

roborated Guthrie’s testimony, but added that Bell had

previously told the employees that raises would be frozen

until “this,” an apparent reference to the Union

campaign, was all over with. Bell, further according to

Fletcher told him and Guthrie that they weren't supposed

to give any raises, but "were going to try to see what we

can do for you guys.”

Bell did not address, and thus did not deny, the re-

marks regarding raises attributed to him by Guthrie and

Fletcher. Thus, Guthrie and Fletcher are credited on this

point. There was no evidence, however, that they were

actually granted a wage increase prior to the election or

even after the election. The promise of benefits by an

employer during an election campaign may constitute a

subtle but nevertheless unlawful inducement if its pur-

pose is to impinge of the employees freedom of choice in

selecting union representation. See NLRB v. Exchange

Parts Co., 375 U.S. 405 (1964). Based an Guthrie’s testi-

mony Bell made a point of stressing that he was not

promising either man he would be successful in

attempting to secure a raise for them. The timing of Bell’s

remark obviously implies the promise of a raise based on

union considerations notwithstanding his assertion that

no promise was being made. On the other hand, and

considering Respondent’s prior announcement that

wages would be frozen during the union campaign there

is no other evidence suggesting that Bell’s statements

were intended to be more than an effort to encourage

employees who, by Fletcher's testimony, Bell recognized

were carrying more than their share of the work. Further,

Bell did not condition his efforts toward a wage increase

22a

for the two on the outcome of the election or their

support of the Union if in fact they did so support it.

Under all these circumstances, I find it difficult to

conclude that Bell’s remarks constituted a promise of

benefits to discourage union support despite his specific

averments to the two employees to the contrary.

Accordingly, I find Bell’s remarks did not constitute a

promise of benefits to discourage union support in vio-

lation of Section 8(a)(1) of the Act as alleged.

4. The Statements Attributed to Dave Edell

The complaint as amended at the hearing, alleged

that Dave Edell, project manager for Respondent, for the

Tampa job, on or about 9 October, at the Tampa jobsite,

threatened employees it would be futile for them to select

the Union since Respondent would not sit down and ne-

gotiate with the Union, that employees would lose jobs if

they engaged in Union activities, and that Respondent

would close if employees joined or engaged in Union

activities. Again the General Counsel relied upon the

testimony of Guthrie and Fletcher to prove the allega-

tions. Their testimony, discussed below, is mutually cor-

roborative in some, but not all, respects.

According to Guthrie’s testimony, Edell spoke to as-

sembled Tampa employees a week before the election and

told employees that Respondent did not want to “go

union,” and that they were not going to go union. Edell

added that if the employees wanted to go Union, fine,

they could do so, but that Respondent would not sit down

and negotiate. Further, Edell stated that all the Union

wanted was their jobs working with the metal frames and

explained that the Iron Workers Union would be brought

in to handle the metal frames, that the Iron Workers

23a

members sitting on the bench would “come in,” and the

Respondent’s employees who were then doing the metal

frame work would go on “the bench.”

Unlike Guthrie, Fletcher did not attribute any re-

mark to Edell in the meeting to the effect that Respon-

dent would not sit down and negotiate with the Union.

Indeed, on cross-examination Fletcher testified he didn’t

hear Edeil say that Respondent would not bargain or

“anything like that”. However, he did relate that Edell

said it was Respondent's policy not to be union and that

Respondent would “either close the doors or we will

move to another location, or we will change our name.”

Moreover, Edell added that the Iron Workers would do

all the metal work, and that Respondent “probably won’t

need half of you guys, because all you guys would be do-

ing is setting glass.” Edell concluded saying, “The I !nion

doesn’t need any more men,” and “The Union wants

your jobs.”

According to Fletcher, Edell referred to Pittsburgh

Plate Glass Company (PPG), observed that it was the “only

signed” union contractor in Atlanta, remarked “You all

know what PPGs fixing to do,” and said "They're fixing to

sell out or close the doors.”? While not entirely clear from

Fletcher's testimony it appears he believed the reference

to PPG was made in the context of Edell’s claim that the

Union only wanted the jobs of Respondent’s employees.

Edell, who was conceded by Respondent to be its

agent although not a supervisor within the meaning of

> Fletcher conceded that it was already common knowledge among

employees that PPG was “fixing to either close the doors or go out of

business.”

24a

the Act, testified that he did in fact have a meeting with

the Tampa employees, but placed it on Monday, 12 Octo-

ber. According to Edell, the meeting was intended to be a

question and answer session, and he conceded that he -

made remarks regarding the closing of PPG and about the

Iron Workers. Regarding the former he testified it was

discussed because it was a matter of interest to

Respondent’s employees, but he was initially vague with

respect to how the subject was raised and the extent of his

remarks on the matter. With respect to the Iron Workers,

Edell failed to relate exactly what he told the employees,

but he testified herein that it was his understanding that

in the curtain wall business work was split between the

Iron Workers and the Glaziers, with Iron Workers

assuming work responsibility for anything involving

metal [frames] and that Glaziers has responsibility for

glazing. Edell was not specifically asked, and thus did not

specifically deny, the statement attributed to him by

Guthrie to the effect that Respondent would not negotiate

with the Union.

Bell testified that he attended the meeting at which

Edell spoke. He denied that Edell said that Respondent

would not negotiate with the Union. Although he veri-

fied the discussion regarding PPG at the meeting his rec-

ollection of the context was that since PPG was closing

Respondent would be “filling the void.” Bell, a former

business agent of a local Glaziers Union in Tampa, also

confirmed that Edell referred to the Iron Workers and

testified that Edell said that the Iron Workers, who do the

metal work, “would probably do most of the work, if

there was an election.”

Job superintendent Hege also testified regarding the

meeting of 12 October and generally supported Bell’s ver-

sion of the remarks regarding PPG made at the meeting.

He likewise testified that to his knowledge nothing was

said to the effect Respondent would not negotiate with

the Union. On cross-examination Hege admitted that

Edell had said that in a jurisdictional dispute the Iron

Workers could “take work away from them.”

Although many other employees were identified as

attending the 12 October meeting, no party herein sought

to have them testify regarding Edell’s remarks and assist

the trier of fact in resolving the credibility conflicts out-

lined in the testimony set forth above. These conflicts

must be resolved upon the basis of the record as it

presently stands, considered as a whole, as well as upon

the demeanor of the witnesses. Initially, it is to be ob-

served that Guthrie and Fletcher were employees of Re-

spondent at the time of the hearing, and therefore were

giving testimony adverse to their employer which could

serve to put their jobs at risk. These circumstances serve

to enhance their credibility. See Georgia Rug Mill, 131

NLRB 1304, 1305 at fn. 2 (1961). Considering this, and be-

cause both in demeanor gave the appearance of attempt-

ing to testify honestly and accurately, I would be inclined

to credit them where their testimony is mutually corrob-

orative or uncontradicted. However, each attributed re-

marks to Edell not heard by the other with Guthrie stat-

ing Edell said Respondent would not sit down and nego-

tiate with the Union and Fletcher saying that Edell said

Respondent would close and move if the Union was

elected. Since Fletcher did not support Guthrie on the is-

sue, and also because I find persuasive Bell’s emphatic

26a

Raa latndllad eeN ecaan al aa

denial that Edell said Respondent would not negotiate

with the Union, | find Edell did not make the remark

claimed by Guthrie. Accordingly, I find no threat not to

negotiate as such, and no violation of Section 8(a)(1) in

this respect.

On- the other hand, however, I find no specific de-

nials by Respondent’s witnesses on the record of

Fletcher's testimony to the effect that if the Union were

selected Respondent would close, move, or change its

name. Accordingly, Fletcher's believable testimony, en-

hanced by Edell’s admitted references to the closing of

PPG, another Union contractor, is credited. On Fletcher’s

credited testimony, I find that Edell did by his remarks

threaten that Respondent's operation would be closed in

the event of Union organization in violation of Section

8(a)(1) of the Act.

All the witnesses agree that Edell alluded to the Iron

Workers and indicated that the election of the Union

would result in a loss of jobs to Respondent's employees

by virtue of assignment of the metal frame work to the

Iron Workers. There was no evidence presented that such

a consequence would legally follow the Union's election.

Respondent contends, in effect, that the remarks of Edell

regarding the Iron Workers were an expression of opin-

ion of the possibility of jurisdictional disputes arising

between the Iron Workers and Glaziers Unions. Hege and

Bell both testified that historically there have been dis-

putes between the two unions regarding the metal work

associated with glazing of the type done by Respondent,

and that such disputes were common knowledge in the

industry. As further evidence of such disputes Respon-

dent in its brief cited a number of Board decisions in Sec-

27a

tion 8(b)(4)(D) cases involving jurisdictional disputes

between these two unions necessitating Board resolution

of the disputes under Section 10(k) of the Act.

I find Edell’s remarks constituted more than an ex-

pression of opinion that jurisdictional disputes might be

encountered if the Glaziers [sic] were elected. Rather, I

view his remarks as a direct threat of loss of jobs for his

own testimony implies that he viewed the splitting of the

work between the two unions with Iron Workers getting

the metal work in curtain wall construction as an in-

evitable consequence of the Glaziers’ [sic] election. His

remarks therefore lead employees to believe that a loss of

jobs would follow selection of the Glaziers. There was

clearly no showing that such a loss would be based upon a

jurisdictional agreement between the two unions. Nor

was there any explanation that any division of the work

would have to follow Respondent’s voluntary assign-

ment of the metal work to the Iron Workers or that it be

awarded by the Board to Iron Workers following a 10(k)

hearing and after the Board had found reasonable cause

to believe there had been a violation of Section 8(b)(4)(D)

of the Act. Obviously, awards flowing from a 10(k) hear-

ing are not predictable, since the Board must weigh many

factors in making an award including the employer's

prior assignment of the work. Such factors vary from case

to case. Accordingly, there are too many imponderables

left unexplained to the employees, and of which they

could not otherwise be expected to be aware, which would

preclude them from fairly understanding or evaluating

Edell’s remarks as other than a direct threat, particularly

when considered in the context of the threat of closure

found to have been made by Edell in the same

28 a

“discussion.” Cf. Gino Moreno Enterprises, 287 NLRB No.

145 (29 Feb 1988); Eagle Comptronics, Inc., 263 NLRB 515

(1982).

Respondent argues further that even if Edell’s re-

marks on jurisdictional disputes constitute a misrepre-

sentation of law it is not an objectionable or unlawful

misrepresentation, citing Tri-Cast. Inc., 274 NLRB 377

(1985). In Tri-Cast the Board held that it would not over-

turn election results based on an employer's misrepresen-

tation of employee rights. Because I have found Edell’s

remarks were a direct unlawful threat of loss of work

rather than a simple misrepresentation I conclude Tri-

Cast is inopposite.

Edell’s reference to the Iron Worker's under alli the

above noted circumstances where the Glaziers were

seeking exclusive representation of the unit employees

clearly threatened the loss of jobs by employees flowing

from selection of the Union. I therefore find Edell’s re-

marks constituted the threat of job loss alleged in the

complaint, and I find such remarks violated Section 8(a)

(1) of the Act as alleged.

5. The Alleged Promises of Dependent Insurance

Coverage

The complaint alleged that Respondent on or about 1

September at both its IBM jobsite in Atlanta and at its

Tampa jobsite through job superintendents Leroy

Faulkner and A. J. Hege, promised employees dependent

insurance coverage if they refrained from joining, or en-

gaging in activities on behalf of the Union. Evidence re-

garding such a promise by Leroy Faulkner was never ad-

duced. However, it is clear from the testimony of Douglas

29a

Davis, Respondent’s comptroller, that Respondent on 12

August did grant employees the option for dependent in-

surance coverage with Respondent paying one-half the

cost of such coverage. The announcement of this option

was made to all employees on 12 August one week

following the filing of the petition in the representation

case. However, Davis testified that George Johnson, Sr.,

Respondent’s President, decided that Respondent would

offer its employees dependent insurance coverage, and di-

rected Davis in early June to solicit quotes from several

insurance firms for employee dependent coverage. Davis

did so completing the process in late July. At that time,

according to Davis, it was determined that none of the

quotes received were better than that offered by the

insurance carrier Respondent was then using. The offer

of dependent coverage was not immediately im-

plemented, and, as a result of the filing of the representa-

tion case petition Respondent found it necessary to check

with its counsel concerning implementation. As noted,

Respondent announced the dependent coverage offer to

all employees at all jobsites on 12 August. The only evi-

dence adduced at the hearing corroborating Respondent's

solicitation of quotes was a plan quote submitted to Re-

spondent by State Mutual Insurance Company dated 23

June. There was no corroboration of Davis’ claim regard-

ing the time when the decision was made to offer em-

ployees partially paid dependent coverage.

With respect to a promise of dependent insurance

coverage by Hege at Tampa, Guthrie testified that a few

days prior to the 14 October election in a meeting with

employees on the Tampa jobsite the employees were

“wanting to know about group insurance for their fami-

as ie

lies,” and Hege responded that “it was in the process,”

and "they were seeing what they could do about getting

group insurance.” It is not entirely clear that Fletcher

attended the meeting referred to by Guthrie, and he did

not otherwise attribute any specific remarks regarding

dependent insurance coverage to Hege. On the other

hand he did testify that at meeting of employees with

Edell within a couple of weeks of the election, “they,”

apparently referring to Edell, said they were going to get

dependent coverage for the employees. Elsewhere in his

testimony Fletcher testified that on one occasion when

Edell was on the job and bought dinner for the men the

question of dependent coverage was raised by an

employee and Edell responded “Well, we’re checking on

some things and that’s one of them.” Fletcher could not

establish the date of Edell’s remark, but testified it was

made at the time the Tampa employees were not aware

that a representation case petition was filed. It seems

reasonable to conclude therefore, that the Tampa

employees were also not aware of any union activity

effecting them at the time since it is clear that the unit the

Union had sought in the representation case had not

included employees outside those employed by

Respondent in the Atlanta area.‘

Edell did not testify regarding any statements made

concerning dependent insurance coverage. Hege in his

testimony acknowledged that the question of dependent

insurance coverage came up many times “even before the

* Although the Union did not seek initially to include the Tampa

employees in the unit it appears that based upon organizer Lambert’s

testimony in the representation case Lambert visited the Tampa jobsite

on 7 August.

3la

thing came up on a vote.” Hege further testified “we gave

them the answer, ‘It’s being worked on.”. He was vague

about exactly when he first learned that dependent cover-

age was implemented and said generally that it was before

the election and after "notification" of the election.

The absence of any degree of consensus concerning

the timing of alleged promises of dependent coverage

makes it exceedingly difficult to determine with any accu-

racy when Hege and Edell referred to the Respondent

“working on” the insurance question. It seems reascnable

to conclude, and I so conclude, that neither Hege or Edell

would have said Respondent was “working” on the

matter after the point in time on 12 August when Re-

spondent announced the offer of dependent coverage by

distribution of a letter to employees with their paychecks.

This conclusion appears consistent with Fletcher's testi-

mony that the employees did not know at the time of

Edell’s remarks whether a representation petition had

been filed. In light of this conclusion, I find the testimony

of Guthrie and Fletcher (and that of Hege and Edell for

that matter) unreliable to the extent it indicates that Hege

and Edell told employees after 12 August that Respondent

was “working” on dependent insurance coverage. It is

likewise unreliable, I find, in establishing that Hege and

Edell made such remarks between the time of Re-

spondent’s acquiring knowledge of the union campaign

and the time on 12 August when the offer of dependent

coverage was made.5 Accordingly, I am unable to con-

5 The record does not reveal exactly when Respondent became aware

of the union campaign although it apparently was around the time of

Lambert's discharge in late July. Further, it does not show exactly when

the union activity started, although it suggests it was contemp-

32a

ON eS ea eo etre cee

clude that either Hege or Edell made an unlawful

promise of benefit to employees at the Tampa jobsite in

order to interfere with employee union activity. More-

Over, since it has not been established that the “promises”

were made following the filing of the representation pe-

tition and within the critical objections period prior to the

election, I cannot find that such alleged “promises”

constituted objectionable conduct.

The fact remains, however, that Respondent did

grant a benefit in the form of partially paid dependent in-

surance coverage to employees after it was aware of the

union activity and the filing of the petition. However,

Respondent’s actual grant of dependant insurance cover-

age was not alleged in the complaint as a violation, anc

while the circumstances of the announcement and grant

of its benefit was set forth on the record no amendment

of the complaint was urged by the General Counsel.

Moreover, in the Charging Party’s closing argument Re-

spondent’s grant of this benefit was only alluded to as

“Suspicious” and no illegality finding urged. The General

Counsel's brief also does not attack the granting of the

benefit, and Respondent's brief does not argue the issue of

the legality of the grant itself. Under these circumstances,

I find it unnecessary to make any specific conclusion

Oraneous with Lambert’s employment on 24 July. There was thus a

period of three weeks at least between the time when both Guthrie and

Fletcher were empioyed on 1 July and the advent of union activity

when Edell and Hege could have made the remarks about “working”

on the dependent insurance coverage. Such remarks during this

period would be entirely consistent with Davis’ testimony that during

this period Respondent was seeking quotes on the insurance coverage.

33a

regarding the legality of Respondent's grant of partially

paid dependent insurance coverage to employees.

C. The Layoffs

1. The Evidence

It is undisputed that Respondent on 4 September at

its Concourse 5 jobsite in the Atlanta area terminated or

laid off four employees, Roman Modest, Mitchell Kerr,

Robert Harris, and Charles Russell. The complaint alleges

that these four were discharged because of their member-

ship in, and activities on behalf of the Union. Respon-

dent's defense is that the layoffs or terminations were

based upon economic considerations, and that the selec-

tions for layoff were based strictly on seniority.

Respondent's records showed that Modest and Harris

were hired on 3 August. Kerr was hired on 31 July, while

Russell was hired on 25 August by job superintendent

Maynard at Kerr's request, Kerr explaining that he and

Harris needed a “riding partner” for their commute to the

job from their North Georgia homes. Modest’s union

background has already been noted. Further, Modest

testified that following employment by Respondent he

participated in the Union campaign, and gave testimony

on behalf of the Union at the 21 August representation

case hearing. Kerr was also active for the Union and

testified he had been sent by the Union to seek a job with

Respondent. In addition, Kerr solicited and obtained a

union authorization card from Russell dated 27 August.

Harris had been a union member prior to his em-

ployment by Respondent, and following such employ-

ment, according to Harris’ testimony which was uncon-

tradicted in this regard, he was seen by Maynard posting

34a

aaa aa

union literature on the jobsite. Further, like Kerr, Harris

had been sent by the Union to seek employment with

Respondent with the instruction that he should be a “role

model” employee. He conceded in his testimony that his

pay was supplemented by the Union. Finally, Harris also

testified for the Union at the representation case hearing.

Kerr's testimony was that on 4 September he was

working on the job with Harris when Maynard and

Randy Dennis, project manager for Respondent on the

Concourse 5 job, the construction of a 34 story building,

came up to the floor on which Kerr and Harris were

working. Maynard came over and told them that he was

going to have to lay them off because “they” found out

that the union hall sent Kerr and Harris down there to

get a job. Maynard further stated that the matter was out

of his hands. Harris protested loudly but Maynard re-

peated that it was out of his hands. Harris’ testimony is

generally consistent with that of Kerr. Harris added,

however, that he had earlier heard “hints” from Maynard

that there would be a layoff.

Kerr further testified that immediately after being

advised of the layoff by Maynard he walked over to the

* Maynard had told employees earlier in the morning that a layoff was

possible. However, Maynard testified he didn’t know at that time

which employees would be laid off. Davis explained in his testimony

that seniority dates had to be pulled from Respondent's computer and

no one previously knew who were the least senior employees in the

ove~all unit including several jobsites. Although Respondent may not

have known prior to the computer run precisely all the least senior

employees, | am persuaded Respondent, and George Johnson, Sr., in

particular, who closely supervised hiring in August, was generally

aware of who had been most recently hired.

35a

gang box with Maynard to empty his tool belt. The two

discussed the matter further, and Kerr asked Maynard

how long he figured they would be laid off. Maynard

replied that he would try to get them back to work as soon

as he could, but that it would probably be after “this

Union business” was over.

Modest’s testimony concerning the layoff was simply

that Maynard separately told him he had been chosen to

be laid off and said the reason was for lack of work. He

further testified that he had learned from another con-

tractors employee the day before that Respondent would

be laying off employees. What Russell was told regarding

his layoff was not revealed since Russell did not testify.

However, Russell, Harris, Modest, and Kerr all received

separation notices showing “Lack of Work” as the reason

for separation.

It is undisputed that Respondent had a substantial

amount of work left to perform on the Concourse 5 job,

and that it proceeded to perform work on the job with

additional employees transferred from other jobsites. It is

likewise undisputed that Respondent had found no fault

with the work of the four laid off employees. Indeed,

Maynard admitted that Kerr and Harris were probably

above average in their work compared with employees

retained. On the other hand, it is clear and undisputed

that the four alleged discriminatees were in fact the least

senior employees on Respondent's work force in the At-

lanta area at the time of the layoff. Respondent concedes,

however, that it had not followed strict seniority in past

layoffs.

Under the Board’s decision in Wright Line, 251

NLRB 1083 (1980), modified 662 F.2d 899 (1st Cir. 1981),

36a

Na ee so i en i Re ar ik Satins CPR

cert. denied 455 U.S. 989 (1982) the General Counsel is re-

quired in attempting to establish an 8(a)(3) and (1) viola-

tion to “make a prima facie showing sufficient to support

the inference that protected conduct was a motivating fac-

tor in the employer's decision [to terminate an employee].

Once this is established, the burden will shift to the em-

ployer to demonstrate that the same action would have

taken place even in the absence of protected conduct.”

Wright Line, supra, at 1089 (footnote omitted). By show-

ing that the four employees laid off had been engaged in

union activity, that Respondent was aware of that in-

volvement as reflected in Maynard’s alleged comment to

Kerr and Harris that Respondent had learned they had

been sent by the Union, that Respondent harbored union

animus as revealed in the 8(a)(1) violations found herein,

that Maynard stated the layoff selections were based on

union concerns (at least with respect to Kerr and Harris

and, inferentially, Modest and Russell since it was neces-

sary to lay them off to reach Kerr’s seniority level), that

Respondent had substantial work left to be done on the

Concourse 5 job at the time of the layoffs, and that Re-

spondent had not followed strict seniority in past layoffs,

the General Counsel, I conclude, has established the re-

quired prima facie case that the layoff selections were

based on union considerations in violation of Section

8(a)(3) and (1) of the Act. The burden therefore shifts to

Respondent demonstrate establish that the layoffs would

have taken piace, and the layoff selections would have

been the same, even in the absence of union activity gen-

erally or the specific activities of those selected for layoff.

The Respondent justifies the layoff based on eco-

nomic reasons as related in the testimony of comptroiler

37a

Davis. Thus, Davis testified that in early September work

was winding down on Respondent’s IBM Tower job, and

during a regular project manager's meeting on 1 Septem-

ber the IBM Tower job superintendent Tony Faulkner

advised Johnson, that he could no longer keep five of his

men busy. It was, according to Davis, common practice to

shift employees from one location to another. Thus,

other job superintendents were queried whether they

could use extra men. None could. Accordingly, Johnson

made the decision to layoff five men, and while Respon-

dent concedes that it had not followed strict seniority in

past layoffs, Johnson after consulting with his counsel de-

cided the layoff should follow strict seniority. Davis by ex-

amining Respondent's records prepared a list of Respon-

dent’s least senior employees on 3 September. Johnson

chose the four alleged discriminatees and one other in-

dividual. The separations were thereafter effected on 4

September although it was discovered that the fifth indi-

vidual set for layoff, M. A. Johnson who worked on the

IBM job and had a seniority date of 12 August, had al-

ready quit.

2. Arguments and Conclusions

Davis’ testimony regarding the necessity for a layoff

was not contradicted. Further, a compilation of hours

worked by Respondent’s Atlanta employees prepared by

Davis confirms that the total employee hours expended

on the IBM job began winding down in late June, and

while the total hours varied somewhat from week to

week, a substantial drop in excess of 200 man hours took

place between the week ending 4 September and 11

September. Thereafter, the total hours continued to de-

crease until the job was completely finished in late De-

38a

cember. There was a similar decrease in total hours in Re-

spondent’s other work sites over the same period except

for the Concourse 5 site which showed only a 17 man

hour drop between 4 and 11 September and an increase of

from 120 to over 200 man hours in the following weeks.

Based upon Davis’ uncontradicted and otherwise credible

testimony and the unrebutted figures regarding the over-

all decrease in hours on all jobs I must conclude the evi-

dence is sufficient to establish that the decision to imple-

ment a layoff was warranted. Accordingly, I find that the |

decision to implement a layoff was not unlawful.

There remains the issue of whether the selections for

layoff were discriminatorily motivated in violation of

Section 8(a)(3) and (1) of the Act as the General Counsel

and Charging Party argue. The resolution of at least one

aspect of this issue rests upon whether Kerr and Harris

are credited over Maynard and Dennis. Having evaluated

the demeanor and testimony of these four witnesses con-

sidered in the context of the record as a whole I credit the

former two over the latter. Both Kerr and Harris im-

pressed me as sincere and candid witnesses making an

honest attempt to factually and accurately relate what had

transpired at the time of their layoffs. Moreover, while

Maynard and Dennis denied that Maynard told either

Kerr or Harris that Respondent had found that the Union

had sent them down to get the jobs, both Maynard and

Dennis failed to contradict Kerr's testimony at the gang

box that Maynard said that their recall from layoff would

probably be after “this Union business” was over. This

undenied remark clearly reveals. that union

considerations were a factor in the layoff selections and

tends to support the testimony of Kerr and Harris

39a

regarding what they were told was the basis for their

layoff selection. I also noted in this regard that while

Dennis claimed in his testimony that it was Harris who

made the statement to Maynard and Dennis that he was

being laid off because of their relationship to the Union,

Dennis made no claim that either he or Maynard

specifically disavowed Harris’ assertion.

Crediting Kerr and Harris, and noting Respondent’s

concession that it had not strictly followed seniority in

prior layoffs, I must conclude that Respondent has failed

to demonstrate in the face of the General Counsel’s prima

facie case that Respondent would have selected the al-

leged discriminatees for layoff even in the absence of

their union involvement.’ I find therefore that Respon-

dent violated Section 8(a)(3) and (1) of the Act as alleged.*

7 While there was no evidence that Respondent was specifically

aware of Russell’s union sympathies or that he had signed a union

authorization card, it could reasonably conclude that he was a likely

union supporter by virtue of his employment at the request of Kerr, a

known union “plant,” and his riding to work with Kerr and Harris. In

any event, even if Respondent was not aware of Russell’s union

inclinations, he was nevertheless the object of unlawful

discrimination. It is well settled that an employer's discharge of

uncommitted or neutral employees during a union campaign in order

to “cover” or facilitate discriminatory conduct against “targeted” union

employees is vioiative of Section 8(a)(1) and (3) of the Act. See Dawson

Carbide Industries, 273 NLRB 382, 389 (1984).

* The fact that Respondent attempted to recall the discriminatees in

December, and did recall Kerr, does not detract from this conclusion.

Since the complaint herein had already issued at the time of the

claimed recall efforts, it is not clear that such efforts were not

responsive only to the complaint rather than demonstrating the

absence of any discrimination in the initial layoffs.

40a

oo eee He ah date

Even if I were to credit the testimony of Maynard

and Harris that Kerr and Harris were not told that they

were selected for layoff because Respondent found they

had been sent to the job by the Union, I would still find

their layoffs unlawful. This is because Respondent in

using seniority as the sole criteria for the layoffs here was

not being consistent with its past practice in making layoff

selections. In the past seniority had only been one of a

number of factors considered in selecting individuals for

layoffs. Moreover, the change to a strict seniority system

in the case sub judice was, based on Davis’ testimony,

specifically responsive to the union campaign among Re-

spondent'’s employees. Thus, while Respondent has

shown that it's past practice was also to shift employees

between jobsites to avoid layoffs, there was no evidence

submitted that it would have specifically selected the four

discriminatees for layoff here if seniority had not been the

sole criteria utilized for their layoff selection. Respondent

asserts that seniority was selected as the fairest and most

objective standard to use in the layoffs here, and less

likely to raise objections from the Union than the more

subjective standards previously used. Thus, Respondent

argues it was compelled to select employees for layoff by

seniority. It also argues that the Board's decision in Jones

Ceilings, Inc., 263 NLRB 469 (1982) supports its position

here. In Jones Ceilings the employer in the face of a

union election petition selected one of its three truck

drivers for layoff on the basis of seniority after consulting

with its attorney. The Board found the layoff to be justi-

fied and the basis for layoff selection was not pretextual or

unlawful. In reaching this conclusion the Board found

other evidence in the case insufficient to show a connec-

tion between the layoff selection and the union activity.

4la

Jones Ceilings and other cases cited in Respondent's brief

in which seniority was found to be a nondiscriminatory

basis for layoff, are distinguishable from the instant case

for unlike here the cited cases do not appear to have

involved a clear departure from prior practice.

Accordingly, it must be concluded, and I so conclude,

that the layoffs were a direct consequence of a change in

the basis for layoff selection which change was a direct re-

sponse to union activity. The four were for this further

reason, and in the absence of evidence that they would

otherwise have been selected for layoff, the objects of dis-

crimination which tended to discourage membership in a

labor organization in violation of Section 8(a)(3) and (1)

of the Act.

III. The Objections to the Elections

Objection 1

The Union’s Objection number 1 to the election

complains of the discriminatory layoffs of Harris, Kerr,

Modest, and Russell on 4 September. Having found

above that such layoffs were in fact discriminatory I find

that this objection has merit and shall recommend that it

be sustained.

Objection 3

In this objection the Union asserted that Respondent

granted additional insurance coverage to employees

during the pendenancy of the representation petition. As

* Dawson Carbide Industries, supra; A.J. Schmidt Co., 269 NLRB 579

(1984); Femco Machine Company, 238 NLRB 816 (1978); Triangle Sheet

Metal Works, Inc., 238 NLRB 517 (1978); Alberts, Inc., 213 NLRB 686

(1974).

42a

already noted the complaint does not allege an unlawful

grant of a benefit in the form of additional insurance cov-

erage, only an unlawful promise of such. The evidence

regarding Respondent's grant to employees the option for

dependent insurance coverage has, however, already

been discussed. Based on Davis’ testimony,

uncontradicted in this regard and which I find credible, it

is clear that Respondent was in fact “working on”

dependent insurance coverage for employees prior to the

advent of the union campaign. It is clear and well settled

that an employer faced with a union campaign among its

employees must proceed in the same manner as it would

have done had the Union not been conducting its

campaign. See e.g. Russell Stover Candies, Inc., 221 NLRB

441 (1975); Gerbes Super Market, Inc., 213 NLRB 803, 810

(1974). Since I find credible Davis’ testimony also that

Respondent had already decided to offer employees

dependent coverage prior to the Union campaign and

that such offer was delayed only because of the search for

the lowest possible rates, I conclude that Respondent in

offering dependent insurance coverage to employees on

12 August was simply effectuating a decision already

made. I therefore find the offer was not designed to

interfere with the election and did not have that effect. I

‘shall recommend that this objection be overruled.

Objection 6

The Union’s Objection 6 asserts that Respondent

promised permanent employment to employees if they

would reject the Union as their exclusive bargaining rep-

resentative. This claim is not coextensive with any alle-

gation of the complaint, and no independent evidence

was adduced by the Charging Party to substantiate it. Ac-

43a

cordingly, no merit is found to this objection and it will

be recommended that it be overruled.

Objection 7

Objection 7 states that Respondent threatened to start

another company to operate nonunion if the employees

voted for representation. This contention appears to be

coextensive with the complaint allegation that Respon-

dent would close its “plant” if the employees engaged in

Union activities, and is supported by the credited testi-

mony of Fletcher regarding statements of Edell already

discussed above to the effect Respondent would close,

move, or change its name if employees organized. |

‘ound such remark to constitute an unlawful threat vi-

olative of Section 8(a)(1). Conduct which violates Section

8(a)(1) is a fortiori conduct which interferes with an elec-

tion. Dal-Tex Optical Co., Inc., 137 NLRB 1782, 1786 (1962).

I therefore find merit to this objection and shall recom-

mend that it be sustained.

Objection 8

The Union contends in this objection that Respon-

dent threatened employees with discharge and loss of jobs

if the Union were designated the collective-bargaining

representative. The objection appears to be coextensive

with the complaint allegation concerning remarks

attributed to Edell by Guthrie and Fletcher previously

discussed. I found such remarks by Edell alluding to loss

of work to the Iron Workers as a result of organization by

the Union constituted an unlawful threat violative of

Section 8(a)(1). I likewise find it to constitute

objectionable conduct occurring within the critical period.

Accordingly, merit is found to this objection and I shall

recommend that it be sustained.

Objection 9

The Union’s Objection 9 is a “catch all” objection re-

ferring only to “other acts and conduct” of the Respon-

dent and outlines no specific actions on the Respondent's

part. No independent evidence was adduced in support of

this objection concurring within the critical period be-

tween the filing of the petition and the holding of the

election. Accordingly, no merit is found to this objection

and it will be recommended that it be overruled.

Conclusions of Law

1. Respondent is an employer engaged in commerce

within the meaning of Section 2(6) and (7) of the Act.

2. The Union is a labor organization within the

meaning of Section 2(5) of the Act.

3. By coercively interrogating an employee regarding

his Union membership or activities; by threatening to

close, move or change its name if its employees selected

the Union to represent them, and by threatening its em-

ployees with the loss of jobs if they selected the Union to

represent them, Respondent engaged in, and is engaging

in, unfair labor practices within the meaning of Section

8(a) (1) of the Act.

4. By discriminatorily laying off Roman Modest,

Mitchell Kerr, Charles Russell, and Robert Harris on 4

September 1987, because of their union activities and in-

volvement, Respondent engaged in, and is engaging in

unfair labor practices within the meaning of Section

8(a)(3) and (1) of the Act.

45a

5. The unfair labor practices set forth in paragraphs 3

and 4 above affect commerce within the meaning of Sec-

tion 2(6) and (7) of the Act.

6. The Union’s Objections Nos. 1, 7, and 8, have

merit and must be sustained, while Objections Nos. 3, 6,

and 9 are without merit and must be overruled.

7. Except as found in paragraphs 3 and 4 above, the

General Counsel has failed to establish by a preponder-

ance of evidence that Respondent violated the Act in any

other manner alleged in the complaint.

The Remedy

Having found that Respondent engaged in certain

unfair labor practices, I find it necessary to order it to cease

and desist therefrom and to take certain affirmative ac-

tion designed to effectuate the purposes of the Act.

Having further found that Respondent discrimina-

torily laid off its employees Roman Modest, Mitchell

Kerr, Charles Russell and Robert Harris because of their

union activities, it will be recommended that Respondent

be ordered to reinstate them to the positions they held

prior to their layoffs, or, if those positions no longer exist,

to substantially equivalent positions, and make them

whole for any loss of earnings and benefits suffered by

them as a result of their discriminatory layoffs. Backpay is

to be computed in the manner set forth in F. W. Wool-

worth Co., 90 NLRB 289 (1950), with interest as computed

in New Horizons for the Retarded, 283 NLRB No. 181 (28

May 1987).'!° Any dispute as to when any of the discrimi-

natees returned to work or whether Respondent made a

valid offer to return them to work can best be resolved at

the compliance stage of this case.

On the foregoing findings of fact and conclusions of

law, and on the entire record, I issue the following rec-

ommended:

ORDER"

Respondent, Jamco (Johnson Architectural Metal

Company), Atlanta, Georgia, its officers, agents, succes-

sors, and assigns, shall:

1. Cease and desist from:

(a) Coercively interrogating employees regarding

their membership or activities on behalf of Glaziers, Ar-

chitectural, Metal & Glass Workers Local Union 1940, or

any other labor organization.

(b) Threatening its employees that it will close its fa-

cility move or change its name if they select the above-

named or any other labor organization to represent them.

their jobs if they select the above-named or any other

labor organization to represent them.

10 Under New Horizons, interest is computed at the “short-term

Federal rate” for the underpayment of taxes as set out in the 1986

amendment to 26 U.S.C. Sec. 6621.

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s

Rules and Regulations, the findings, conclusions, and recommended

Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the

Board and ali objections to them shall be deemed waived for all

purposes.

47a

(d) Discriminatorily selecting employees for layoff or

otherwise discriminating against employees in order to

discourage their activities on behalf of the above-named

or any other labor organization.

(e) In any like or related manner interfering with,

restraining or coercing employees, in the exercise of the

rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act:

(a) Offer Roman Modest, Mitchell Kerr, Charles

Russell, and Robert Harris immediate and full

reinstatement to jobs occupied by them prior to any

discrimination against them, or if those jobs no longer

exist, to substantially equivalent positions, without

prejudice to their seniority or other rights and privileges

previously enjoyed, and make them whole for any loss of

earnings and other benefits suffered as a result of the

discrimination against them in the manner set forth in

“The Remedy” section of this decision.

(b) Preserve and, on request, make available to the

Board or its agents for examination and copying, all pay-

roll records, social security payment records, timecards,

personnei records and reports, and all other records nec-

essary to analyze the amount of backpay due under the

terms of this Order.

sites where it is currently doing business and employing

employees in the unit described in Case 10-RC-13540,

copies of the attached notice marked “Appendix.”'?Copies

of the notice on forms provided by the Regional Director

for Region 10, after being signed by Respondent's

authorized representative, shall be posted by Respondent

immediately upon receipt and maintained for 60 consec-

utive days in conspicuous places including all places

where notices to employees are customarily posted. Rea-

sonable steps shall be taken by Respondent to ensure that

the notices are not altered, defaced, or covered by any

other material.

(d) Notify the Regional Director of Region 10 of the

Board in writing 20 days from the date of this Order what

steps Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaint be

dismissed insofar as it alleges violations of the Act not

specifically found.

IT IS FURTHER ORDERED that the Union’s Objec-

tions 1, 7, and 8 be sustained, that Objections 3, 6, and 9 be

overruled, that the election conducted on 14 October 1987

be set aside, and that case 10-RC-13540 be severed from

Case 10-CA-22910 and remanded to the Regional Director

for Region 10 to conduct a new election when the Re-

gional Director deems it appropriate.

2 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

NATIONAL LABOR RELATIONS BOARD” shall read “POSTED

PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF

APPEALS ENFORCING AN ORDER OF THE NATIONAL LABO

RELATIONS BOARD.” ;

49a

Dated at Washington, D.C. 4 April 1988

/s/

Hutton S. Brandon

Administrative Law Judge

“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 or-

dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights:

To organize

To form, join, or assist any union

To bargain collectively through representatives of

their own choice

To act together for other mutual aid or protection

To choose not to engage in any of these protected

concerted activities.

WE WILL NOT coercively interrogate our employees

regarding their membership in, or activities on behalf of

Glaziers, Architectural, Metal & Glass Workers Local

Union 1940, or any other labor organization.

WE WILL NOT threaten to close, move, or change our

name if employees select the above-named or any other

labor organization to represent them.

WE WILL NOT threaten employees with a loss of jobs if

they select the above-named or any other iabor or-

ganization to represent them.

WE WILL NOT discriminatorily select our employees for

layoff or otherwise discriminate against them because of

their union activities.

5la

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce employees in the exercise of

rights guaranteed them by Section 7 of the Act.

-__WE_WILL offer Roman Modest, Mitchell Kerr, Charles

Russell, and Robert Harris immediate and full

reinstatement to their former jobs, or, if those positions

no longer exist, to substantially equivalent positions,

without prejudice to their seniority or other rights and

privileges and WE WILL make them whole for any loss

of pay they suffered as a result of the discrimination

against them.

JAMCO JOHNSON

ARCHITECTURAL METAL COMPANY)

Employer

Dated: By:

(Representative) (Title)

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE

DEFACED BY ANYONE

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material. Any questions

concerning this notice or compliance with its provisions

may be directed to the Board’s Office, 101 Marietta Tower,

101 Marietta St., N.W., Suite 2400, Atlanta, Georgia 30323.

Telephone: (404) 331-2886.

52a

RECORD EXCERPTS

February 10-11, 1988

Record, Johnson Architectural Metal Company (JAMCO)

and Glaziers, Architectural, Metal and Glass Workers,

Local 1940, Case Nos. 10-CA-22910; 10-RC-13540, pp. 356-58

(testimony of Ray Maynard).

356

Q: Well, who did you talk to? Who are the four

employees?

py Mitch, Bo, Roman, and Chuck, | believe it

was.

Q: Okay. Did you have anybody with you?

A: Yes. Randy Dennis was present.

Q: Randy Dennis. Would you tell the

conversation that you had with — concerning the

conversation with Randy Dennis and Bo. Just tell what

happened?

A: Okay. We had a layoff based strictly on

seniority. These guys had the less seniority. We had men

coming from another job that were to replace them. And

I was instructed to lay them off based on seniority. And

that’s what I did.

Q Did you talk to Bo and Mitch —

A: I talked to Bo and Mitch. They were working

on a floor. I came up to them. And I’d had a meeting

previously to explain that morning what was going on, so

there wouldn’t be any surprises.

53a

And as I walked up on the floor, Bo — “Oh, no, it’s

me.” And I don’t know if you’ve seen Bo or not, but you

know how Bo is.

357

I explained to them that they had less seniority and |

was going to have to lay them off. And I’d hire them back

as soon as we picked back up. What I could do for them.

And, you know, he got a little upset. So did Mitch.

They exchanged a few words with me. And I instructed

them to get their tools and go on. There wasn’t anything

they could do. And I gave them my number and stuff.

They could call me. And that was about it.

Q: That morning, you didn’t know who the less

senior employees were going to be, is that right?

A: No, I didn’t. No, I didn’t. I knew that these

fellows were the last ones that I’d hired. But as far as

company wide, I really didn’t know.

Q Did you ever say that it had anything to do

with union activity, when you were talking to Bo or

Mitch? |

A: I have never said anything about union

activity, as far as they go.

Q Okay. Did you follow the same course of

action in the other two employees?

A: Well, yeah, Chuck, too. And Roman had left

early that day. And when he returned, I told him

the same thing. It was a layoff. And seniority. And lack

355

of work.

Q Was Randy Dennis with you at all times?

When you were talking to Bo Harris?

A: Yes, he was.

Q: Close enough to hear?

A: Sure was. Through the entire time until they

left the job.

Record, Johnson Architectural Metal Company (JAMCO)

and Glaziers, Architectural, Metal and Glass Workers,

Local 1940, Case Nos. 10-CA-22910; 10-RC-13540, pp. 376-

78 (testimony of Randy Gene Dennis).

376

Q: Concourse Five. Did you have occasion to

accompany Mr. Ray Maynard on September the 4th when

he notified some employees concerning a layoff?

A: Yes, I did.

Q Would you just — were you close enough to

hear all of his conversation?

A: Yes, I was.

Q Would you state what he said? Particularly

first with the ones of Mitchell — I can’t recall them.

377

Q. Who were the two employees together?

A: It was Mitch or Gary, and Bo Harris.

55a

Q: Okay. Would you just state what was said to

Bo Harris? And Mitch was at the same locality?

A: Yes. They were working together side by side.

Q Would you tell what happened? What was

stated?

A: We walked up on the floor. And they were

together. And Ray came up to them and told them that

they were being laid off because we had people coming

from IBM over to take their place because of the low

seniority that they held.

About that time, Bo just starts putting his hands up

in the air and that. And Gary kind of walked away. And,

you know, Bo was just up — he was totally upset with the

situation.

Then we walked down tc the gang box. And they put

the tools that they were using up. And at that time, Mitch

asked Ray — he wanted to talk to somebody. And he gave

Doug Davis’ name and the office number.

And when they left, everybody shook hands. And

told them if we possibly could bring them back, that we

would.

Q Did you hear Ray Maynard saying anything at

| 378

all about union activity during that conversation?

A: No, sir.

Q Were you close enough to have heard it if he

said it?

A: Yes, I was. If any — you know, Bo was the one

that was saying, you know, about the union and that.

And that he said that’s why he was being laid off. But that

wasn’t anything what we said.

Record, Johnson Architectural Metal Company (JAMCO)

and Glaziers, Architectural, Metal and Glass Workers,

Local 1940, Case Nos. 10-CA-22910; 10-RC-13540, pp. 256-57

(testimony of David Edell).

256

Q: Can you recall a discussion about PPG?

A: Oh, yes. Most of our management, including

257

myself and our employees at the job, had worked with

PPG at one time. I’d say half of our field crew there had

worked with PPG. And PPG in most areas are union.

And they had announced that they were closing all

of their branches at the end of the year, end of ’87. And we

discussed that because it was some interest to our

employees.

Record, Johnson Architectural Metal Company (JAMCO)

and Glaziers, Architectural, Metal and Glass Workers,

Local 1940, Case Nos. 10-CA-22910; 10-RC-13540, pp. 281-82

(testimony of Albert Bell).

281

JUDGE BRANDON: ... Did Mr. Edell say at that meeting

that the Employer, JAMCO, would not negotiate with the

union?

57a

282

THE WITNESS: No, sir. I think if he had said that,

A.J. Hege, which is the supervisor —

JUDGE BRANDON: Well, I don’t need to know a

guess.

THE WITNESS: No, sir. He did not say that. No sir.

JUDGE BRANDON: All right. Did he say that

JAMCO would not sign a contract with the union?

THE WITNESS: No sir. He did not say that.

JUDGE BRANDON: Did he say anything like either

one of those things?

THE WITNESS: No, sir. He did not.

Record, Johnson Architectural Metal Company (JAMCO)

and Glaziers, Architectural, Metal and Glass Workers,

Local 1940, Case Nos. 10-CA-22910; 10-RC-13540, pp. 298-99

(testimony of Albert Bell).

298

Q: Okay. Who brought up the question of the

company going out of business and opening up under a

different name?

A: Opening up under a different name?

Q: Yeah. And with a new crew of employees.

299

A: To the best of my knowledge, that — that

question never came up.

Q: You don’t recall that question coming up?

58a

A: The question never came up. If it came up,

myself and A.J. Hege would — has been around unions

for thirty years.

And myself, .who’s been involved in the union

negotiations. I think a red flag would automatically gone

up. And we probably would have pulled Mr. Edell aside

and told him he couldn’t say that. Because that would

have been circumventing the union.

So if that question had have came up, I think we

both — I would have remembered that question. That

never came up.

Record, Johnson Architectural Metal Company (JAMCO)

and Glaziers, Architectural, Metal and Glass Workers,

Local 1940, Case Nos. 10-CA-22910; 10-RC-13540, pp. 310-11

(testimony of Aaron J. Hege).

310

Q Tampa, Florida. Do you recall a meeting

approximately two days prior to the election in which Mr.

David Edell had a question and answer period with the

employees on the job site?

A: I do, yes.

Q Were you at that meeting?

A: I was, yes.

Q: Wouid you just tell the Court, the Judge,

what happened?

A: Well, we stood around there and had a talk

with the boys and asked them if there was any questions

they would like to ask of JAMCO.

59a

Se Tr tn - -

We discussed about PPG's closing the doors at the

end of the year, 1987. They were closing down their

operations in the area.

And, of course, I’m a former employee of PPG,

311

and I was interested in it because — to know what the

company would — would happen to the company.

And there’s other things that came up. You know,

what — someone said, “Well, what’s JAMCO going to

do?” “Well, we’re going to stay in business.”

And talked about what our project was — or what we

were — our projection was to stay in business. We’re

going to try and satisfy the employees, and keep the

relationship with the employees.

And they went on and asked a few questions. I don’t

recall of all the questions that was asked. But we tried to

ask them and answer them in a manner that would be

satisfactory.

And I guess went on to say that JAMCO would

negotiate with the union if that’s the way they felt like

they wanted to go.

And I don’t know of anything else that was directed

as saying that JAMCO would not negotiate with the

union, because there was nothing said about that to my

knowledge.

Record, Johnson Architectural Metal Company (JAMCO)

and Glaziers, Architectural, Metal and Glass Workers,

Local 1940, Case Nos. 10-CA-22910; 10-RC-13540, pp. 95-96

(testimony of James Donald Fletcher).

60a

Q: Excuse me. I’m trying to just understand a

little bit of the way this thing went. Mr. Edell says, “Look,

they only have one glazier — glazing company signed up

on a contract in Atlanta.” I mean, and everybody assumed

that was PPG.

A: No. He made that statement.

Q: Okay. PPG was signed up. That's true.

A: Yes, sir.

Q: And that was accurate.

A: Also, as far as the closing’s concerned, PPG —

the Orlando branch, as far as I know, didn’t close. But

PPG, the contracting division was up for sale. All of the

contracting divisions were up for sale, which would be —

Atlanta had a contracting division, and Orlando had a

contracting division. And they were up for sale.

Q: All right.

A: To a buyer. They were either going to sell the

whole unit, or sell each one of them as a different

unit, the contracting division. And they had made the

statement that there was no buyer for the one in Atlanta,

that they would close the doors.

Q: All right. And the closing time that you

referred to was in conjunction with PPG’s situation, is

that right?

A: True.

6la

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.