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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 814

## Text

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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

a
—

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

”"
wr

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

i
QUESTION PRESENTED

1. Should a reviewing court defer to the phantom
credibility choices of an administrative fact finder when
questions of law control?

ii
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
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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

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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-

iv

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

Vv

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

vi

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
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SET a RR IO IA aN BENE et
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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

An
~~

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).

2

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.

3
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

5

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,

6

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.

7

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-

8

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.

9

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

10

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.

11

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

12

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-

13

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

14

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.

15

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

16

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-

18

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

19

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

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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.

la

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.

2a

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).

3a

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.

(c) Discriminatorily selecting employees for layoff or
otherwise discriminating against employees in order to

4a

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.

(c) Remove from its files any reference to the
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,

5a

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.”

6a

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

7a

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

8a

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.

9a

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

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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

on

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-

3a

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.

(c) Threatening its employees that they will lose
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.

(c) 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 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.

Recor

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2146%3A1. Public record. Not legal advice.