Crafts Precision Industries

National Labor Relations Board - Board Decisions

Dec 20, 1991

305 N.L.R.B. 894 (N.L.R.B. 1991)

894
305 NLRB No. 125
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 We adopt the judge’s findings that Case 1–CA–27070 should not
be deferred and that the 8(a)(3) and (1) allegations with respect to
the layoffs of employees Nguyen, Crowley, Le, Ha, and Pham
should be dismissed for the reasons stated by the judge.
3 All dates are in 1989 unless otherwise indicated.
4 These memoranda were not referred to by the judge but are con-
tained in the record as G.C. Exhs. 3 and 4.
5 In finding an unlawful threat, the judge relied on Mid-South Bot-
tling Co., 287 NLRB 1333 (1988). That case is distinguishable on
the facts. In that case the respondent employer announced that it
would never let a union in the facility and made repeated and fre-
Crafts Precision Industries, Inc. and Lodge No.
1836 of District 38, International Association of
Machinists & Aerospace Workers, AFL–CIO.
Cases 1–CA–26573 and 1–CA–27070
December 20, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 29, 1991, Administrative Law Judge Mar-
tin J. Linsky issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs. The Respondent also filed an an-
swering 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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 only to the extent consistent with this Deci-
sion and Order.
1. We reverse the judge’s finding that the statement
made by John Pappas, the Respondent’s owner and
chief executive officer, to the Union’s chief steward,
Thomas McCullough, on June 26, 1989,3 violated Sec-
tion 8(a)(1).
The parties’ collective-bargaining agreement cov-
ering the Respondent’s employees at its Canton, Mas-
sachusetts facility did not provide for working fore-
men. In June, during the contract term, Pappas asked
the Union to agree to modify the agreement to provide
for working foremen. The Union agreed to allow
Pappas to present his proposal to the unit employees,
who would then vote on whether they wished to mod-
ify the agreement. Pappas subsequently met with em-
ployees to explain his proposal and further told them
that if they did not agree to the modification he had
other options available. That statement was not alleged
to be unlawful.
On June 26, Pappas approached McCullough and
expressed his displeasure that the employee vote on the
Respondent’s working foremen proposal would not
take place at the facility. McCullough refused to
change the location of the vote. According to
McCullough’s version of the conversation, which was
credited by the judge, Pappas then reiterated to
McCullough what he had told the employees, that he
had other options available if the employees rejected
the proposal. He went on to mention as examples the
elimination of the polycrystalline diamond (PCD) de-
partment or scrutiny of jobs in the carbide department,
and that the result would mean layoffs.
The judge found Pappas’ statement to be a threat of
layoffs or other dire consequences if the employees did
not agree to modify the collective-bargaining agree-
ment. We disagree. As the Respondent’s written
memoranda to the Union and unit employees makes
clear, it considered its proposed working foreman orga-
nizational structure essential in order to increase man-
agement efficiency.4 The confidential memo to the
Union states management’s view that the current level
of performance under the existing structure was re-
sponsible for the steady loss of business activity. Thus,
the Respondent was clearly putting forward its pro-
posal as a means to accomplish an economic objective
aimed at turning around its undisputed loss of business
activity. In this context, we agree with the Respondent
that Pappas’ articulation of other legitimate means
available to accomplish the Respondent’s lawful eco-
nomic objectives is more reasonably construed as a re-
alistic prediction of the possible consequences if the
employees rejected the Respondent’s option of improv-
ing efficiency through adoption of the working fore-
man system. Without more, the evidence is insufficient
to establish a threat in violation of Section 8(a)(1). The
General Counsel, although showing that Pappas was
angered by McCullough’s refusal to change the loca-
tion of the vote, has not shown that Pappas’ expla-
nation of possible alternatives to adoption of the work-
ing foreman system rose to the level of an unlawful
threat to retaliate against the employees if they rejected
the proposed midterm modification or was in reprisal
for refusing to change the location of the vote. See,
e.g., Jefferson Ready Mix, 284 NLRB 977, 979–980
(1987); Kawasaki Motors Mfg. Corp., 280 NLRB 491,
492–493 (1986), affd. 834 F.2d 816 (9th Cir. 1987);
and Ohio New & Rebuilt Parts, 267 NLRB 420, 420–
421 (1983). See also Hydro Logistics, 287 NLRB 602,
613–614 (1987) (statements of economic duress made
in the course of the respondent employer’s efforts to
obtain contract concessions held not to be unlawful
threats of reprisals because the statements were capable
of being evaluated as well as supported by an objective
factual basis).5 Finally, we note that Pappas’ statement
895CRAFTS PRECISION INDUSTRIES
quent statements at all levels of management that the facility would
close if the union were voted in.
6 The General Counsel did not allege, nor did the judge find, that
the Respondent had any obligation to bargain over the partial trans-
fer apart from that arising from the Respondent’s alleged unlawful
motivation. Thus, the General Counsel’s theory of the case at hear-
ing was that the Respondent’s partial transfer of the PCD department
without bargaining was not unlawful per se, but only a derivative
8(a)(5) violation based on the Respondent’s alleged illegal motiva-
tion in taking the action.
7 This equipment was earmarked for, and ultimately was located
in, a new facility in Illinois adjacent to the Respondent’s existing fa-
cility at Schiller Park.
8 Even assuming the final decision to partially transfer the PCD
department was made after the employee vote and further assuming
that an alternative mentioned by Pappas in his June conversation was
linked to the partial transfer decision, we still would not find the
transfer to have been illegally motivated. To the contrary, the Re-
spondent could reasonably wait for the results of the employee vote
before deciding to proceed with other lawful options without vio-
lating the Act.
9 The judge also found that other employee layoffs were economi-
cally justified due to the undisputed downturn in business activity
at the Massachusetts facility. We adopt this finding without further
comment. The layoffs of three employees in July were not alleged
to be unlawful.
to McCullough was merely a fleshed-out reiteration of
the ‘‘other options available’’ remark he had pre-
viously made at the meeting with employees to explain
the working foreman proposal. As stated above, that
remark was not alleged to be unlawful.
2. The judge further found that the partial transfer
of the PCD department was motivated, at least in part,
by the employees’ rejection of the working foreman
proposal. Thus, he concluded that the transfer violated
Section 8(a)(5) and (1).6 The judge bases his finding
of retaliatory motive on the timing of the events in
question. Again, we disagree.
In late July, the Respondent transferred part of the
PCD department from Massachusetts to its facility in
Illinois.7 Specifically, the Respondent transferred some
15 pieces of machinery. The Union requested bar-
gaining about the transfer. The Respondent essentially
refused to bargain over the decision to relocate the ma-
chinery but agreed to bargain over effects.
The judge noted that discussions concerning the pro-
posal took place months before the employees’ rejec-
tion of the Respondent’s proposed contract modifica-
tion, but found, based on two pieces of documentary
evidence and the lack of evidence to the contrary, that
the final transfer decision occurred in early July, after
the working foremen vote. The Respondent submits
that, contrary to the judge’s determination, the final de-
cision was made on May 31 before the vote. The Re-
spondent refers to a memo in the record from Thomas
Kuhl, who is its president and heads the Respondent’s
Illinois operations, to support its contention that the
final decision in fact was made on that date, which
clearly preceded the employees’ working foremen vote.
We find, contrary to the judge, that the General
Counsel has failed to establish a prima facie case that
a motivating factor in Respondent’s action in partially
transferring the PCD department was the employees’
rejection of the working foremen proposal. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). See also
Nu Dawn Homes, 289 NLRB 554 fn. 1 (1988). First,
regardless of when the final decision was made, it is
clear from the record, as the judge conceded, that seri-
ous consideration of this transfer began months before
the vote rejecting the working foremen proposal and
continued through July. The stated reason for the par-
tial transfer was to create additional capability for
growth of the Respondent’s regional division.
Further, there is no direct evidence that the partial
transfer of the PCD department was linked in any way
to the union vote. We have found, contrary to the
judge, that the statement made by Pappas to
McCullough on June 26, discussed above, was not a
threat but rather a factual statement of the alternatives
available to the Respondent if its working foremen
proposal were rejected. Further, the alternative men-
tioned by Pappas regarding possible elimination of the
PCD department with resulting layoffs is different
from what occurred in late July.8 The Respondent did
not eliminate the PCD department, but only transferred
equipment to the Illinois operation, consistent with its
stated goal of consolidating PCD operations in Illinois
to take advantage of growth opportunities, while main-
taining some PCD production in Massachusetts to
service its regional customers. Moreover, it is unclear
from the record and the findings of the judge that, in
fact, any Massachusetts facility layoffs were the direct
result of the equipment transfer. In light of all the cir-
cumstances, we do not find sufficient evidence of re-
taliatory motive rather than legitimate business motive,
in the Respondent’s actions.
3. The judge concluded that the selection of employ-
ees McCullough, Hillson, and Kierstead for layoff in
August violated Section 8(a)(3) and (1) based on his
finding that these particular layoffs would not have oc-
curred absent the employees’ protected, concerted ac-
tivities.9 We agree for the reasons set forth below, con-
sistent with Wright Line, supra. We thus find that in
each instance the General Counsel has made a prima
facie case of illegal motivation and that the Respond-
ent has not met its burden of demonstrating a legiti-
mate basis for that employee’s selection for layoff
even absent any protected, concerted activity. See Gen-
eral Combustion Corp., 295 NLRB 1103 (1987), and
Nu Dawn, supra.
With respect to employee and Chief Steward
McCullough, it is undisputed that McCullough had
been the union steward, with one hiatus for health rea-
sons, since 1978, and that the Respondent had substan-
tial knowledge of his union activities. It is similarly
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 There is testimony in the record to the effect that the delay be-
tween the March 23 district court order and the Respondent’s August
offer of reinstatement was due to the Respondent’s appeal of the dis-
trict court decision to the circuit court, although the Respondent’s
August offer of reinstatement only makes reference to the district
court order.
conceded that McCullough was the object of Pappas’
anger in June when he refused to change the location
of the working foremen proposal vote. After that vote,
Pappas asked McCullough for more information, which
McCullough refused to divulge.
McCullough’s known union activities extended to
pressing management with respect to employee griev-
ances, including employee Hillson’s grievance con-
cerning his pay raise in early July and August. He also
handled employee Kierstead’s grievance in August
concerning the latter’s reinstatment at a lower pay rate.
That such activities provoked the Respondent’s dis-
pleasure is evidenced by McCullough’s undisputed tes-
timony, referred to by the judge, that his supervisor,
Sauer, told McCullough in August before his layoff
that McCullough’s name had come up in a manage-
ment conversation ‘‘in some disfavor’’ and that Sauer
wanted McCullough to be on his best behavior. Al-
though not mentioned by the judge, McCullough simi-
larly testified without controversion to a conversation
with Sauer around December 1988 in which the super-
visor had confided to McCullough that he would have
received a pay raise at least 2 years earlier had it not
been for his chief steward activities. Thus, the General
Counsel has demonstrated ample knowledge of and
animus to McCullough’s union activities by the Re-
spondent up to the time immediately preceding his lay-
off.
The Respondent seeks to rebut the General Coun-
sel’s case by contending that its decision to lay off
McCullough, although effectuated in August, had been
made in July. On the basis of the above evidence of
longstanding animus, we reject the Respondent’s asser-
tion that, even if the decision was made in July and
effectuated in August, it would serve to negate the
General Counsel’s prima facie case. Moreover, as to
the layoff decision, the Respondent showed that it was
made with reference to the company’s sales figures
alone. Thus, the Respondent failed to show that its de-
cision to lay off McCullough was based on any anal-
ysis with respect to his particular position, that of final
inspector. In this regard, the Respondent conceded that
no figures regarding the cost savings to be achieved if
McCullough’s position were eliminated were available
at the time it made its decision. In light of all the
above we find, in agreement with the judge, that the
Respondent has failed to sustain its burden of showing
McCullough would have been selected for layoff even
in the absence of his union activities.
Employee Hillson, who was a maintenance me-
chanic, had successfully pursued a grievance over his
pay in 1987. However, he did not receive the merit
pay increase he was entitled to in January as part of
his favorable grievance resolution. He complained and
received part of the merit pay increase at that time,
with the second part to be paid in July. In July, he did
not get the second installment of the pay increase and
complained to Chief Steward McCullough, who pur-
sued the matter with management. Subsequently, both
McCullough and Hillson were selected for layoff. In
light of the timing of the events in question, we find
that the General Counsel has made a prima facie case
that Hillson, like McCullough, was selected for layoff
because of his protected concerted activity of pursuing
his grievance through his chief steward at a time im-
mediately preceeding the Respondent’s decision and
implementation of its decision to lay off Hillson. We
further find that the Respondent has failed to rebut the
General Counsel’s case by showing, with reference to
the particular position in question, that Hillson would
have been selected for layoff absent his union activi-
ties.
The General Counsel has similarly made a strong
prima facie case for a finding of unlawful selection for
layoff based on timing with respect to employee
Kierstead. Kierstead was fired in 1987 for insubordina-
tion, and the case had been pursued by the Union
through arbitration and the courts. On March 23, pur-
suant to a district court order, Kierstead was ordered
reinstated. On August 2,10 the Respondent offered
Kierstead reinstatement effective August 14 at a lower
pay rate due, according to the Respondent’s letter to
Kierstead, to the termination of the PCD operations at
the facility. When Kierstead returned to work on that
date, he observed that work he had previously per-
formed was being done by other employees. He spoke
with Chief Steward McCullough, who filed a grievance
on August 18 asserting that Kierstead should have
been reinstated at his original higher rate of pay. The
layoffs of Kierstead, McCullough, and the others oc-
curred 4 days later.
It is clear that the Respondent fought the reinstate-
ment of Kierstead vigorously and that it laid him off
less than 2 weeks after it had reinstated him pursuant
to a court order. During that time period, Kierstead had
filed another grievance, thereby, engaging in further
protected, concerted activity. Moreover, the stated rea-
son for Kierstead’s reinstatement at a lower wage rate
was the Respondent’s elimination of the PCD depart-
ment. However, it is clear from the record that, al-
though equipment was transferred, the PCD operation
at the Massachusetts facility was not in fact termi-
nated. To the contrary, the Respondent argued at hear-
ing that no positions were eliminated as a result of the
transfer of the equipment to the Illinois facility. In
light of the timing of the events in question, as well
as the Respondent’s failure to rebut the General Coun-
897CRAFTS PRECISION INDUSTRIES
11 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 Labor Relations Board.’’
sel’s case by showing that it selected Kierstead for lay-
off based only on legitimate reasons, we agree with the
judge that the layoff of Kierstead was unlawful.
ORDER
The National Labor Relations Board orders that the
Respondent, Crafts Precision Industries, Canton, Mas-
sachusetts, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Laying off employees because they engage in
union or other protected concerted activities.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them under the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Thomas McCullough, William Hillson, and
John Kierstead full reinstatement to their former posi-
tions or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority and other rights and privileges previously en-
joyed.
(b) Make Thomas McCullough, William Hillson,
and John Kierstead whole for any loss of pay and
other benefits suffered by them commencing from Au-
gust 22, 1989, the date of their unlawful layoffs. Back-
pay shall be computed in the manner set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1989).
(c) Remove from its files any reference to the un-
lawful layoffs 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) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its facility in Canton, Massachusetts, cop-
ies of the attached notice marked ‘‘Appendix.’’11 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 1, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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.
WE WILL NOT lay off employees because they en-
gaged in union or other protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them under the National Labor
Relations Act.
WE WILL offer Thomas McCullough, William
Hillson, and John Kierstead immediate and full rein-
statement to their former positions or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges previously enjoyed.
WE WILL make Thomas McCullough, William
Hillson, and John Kierstead whole for any loss of pay
or benefits they suffered because of the discrimination
against them, plus interest.
WE WILL notify each of them that we have removed
from our files any reference to his discharge and that
the discharge will not be used against him in any way.
CRAFTS PRECISION INDUSTRIES, INC.
Joseph F. Griffin, Esq., for the General Counsel.
Harold N. Mack, Esq. and Benjamin Smith, Esq., of Boston,
Massachusetts, for the Respondent.
Eugene Marcaccio, of Stanford, Connecticut, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On August
8 and September 28, 1989, a charge and amended charge in
Case 1–CA–26573 were filed by Lodge No. 1836 of District
18, IAM (Charging Party or Union) against Crafts Precision
Industries, Inc. (Respondent).
On October 27, 1989, the National Labor Relations Board,
by the Regional Director for Region 1, issued a complaint
in Case 1–CA–26573.
On February 14 and April 23, 1990, a charge and amended
charge in Case 1–CA–27070 were filed by the Union against
Respondent.
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On April 30, 1990, the National Labor Relations Board, by
the Regional Director for Region 1, issued a complaint in
Case 1–CA–27070.
It is alleged in Case 1–CA–26573 that Respondent vio-
lated Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act (the Act) when it threatened an employee with loss
of work if he did not vote to modify, in midterm, a collec-
tive-bargaining agreement between the Union and Respond-
ent, when it partially transferred the polycrystalline diamond
(PCD) department from Canton, Massachusetts, to Schiller
Park, Illinois, and when it refused to bargain concerning the
partial transfer of the PCD department. Respondent denied it
violated the Act in any way.
Hearing was held before me in Boston, Massachusetts,
concerning the allegations in Case 1–CA–26573 on March
19 and 20, 1990. I granted the General Counsel’s motion to
consolidate Case 1–CA–6573 with Case 1–CA–27070, where
the Regional Director for Region 1 had authorized the
issuance of a complaint but the complaint had not issued as
yet. As noted above, the complaint in Case 1–CA–27070 did
not issue until April 30, 1990. Counsel for Respondent had
no objection to the consolidation of Case 1–CA–26573 and
Case 1–CA–27070 but argued that Case 1–CA–27070 should
be deferred to the arbitral process, citing Dubo Mfg., 142
NLRB 431 (1963).
Counsel for the General Counsel argued that deferral was
inappropriate since the allegations in Case 1–CA–26573,
which was to be tried before me, and the allegations in Case
1–CA–27070 were inextricably interrelated and deferral
would be inappropriate under these circumstances. I agree
with the General Counsel. See SQI Roofing, 271 NLRB 1 fn.
3 (1984). The complaint in Case 1–CA–27070 alleges that
Respondent violated Section 8(a)(1) and (3) of the Act when
it laid off eight employees which layoff was because some
of the eight employees engaged in protected concerted activ-
ity and because of the partial transfer of the PCD department
alleged to be violative of the Act in Case 1–CA–26573. Ac-
cordingly, the allegations in both cases are so interrelated
that deferral would be inappropriate. Dubo Mfg, supra, is dis-
tinguishable because in Dubo, unlike here, there was U.S.
district court order directing the parties to arbitrate their dis-
pute and in Dubo there was no outstanding interrelated case
being tried before the Board. Again, Respondent denied it
violated the Act in any way.
Hearing was held before me in Boston, Massachusetts,
concerning the allegations in Case 1–CA–27070 on June 12,
13, and 14, 1990.
On the entire record in this case, to include posthearing
briefs due by November 5, 1990, and timely filed by the
General Counsel and Respondent, and on my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent, a corporation, with of-
fices and places of business in Canton, Massachusetts (Re-
spondent’s Canton facility), and Schiller Park, Illinois (Re-
spondent’s Schiller Park facility), has been engaged in the
manufacturing of machine tools.
During the years ending December 31, 1988, and Decem-
ber 31, 1989, Respondent, in the course and conduct of its
business operations described above sold and shipped from
its Canton facility products, goods, and materials valued in
excess of $50,000 directly to points outside the Common-
wealth of Massachusetts.
Respondent admits, and I find, that it is now, and has been
at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is now and
has been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The 8(a)(1) Threat
Respondent is in the business of manufacturing machine
tools. It operates facilities in Canton, Massachusetts, and in
Schiller Park, Illinois.
A collective-bargaining agreement covering the employees
in the Canton facility was in effect from July 6, 1987, to July
5, 1990. The agreement did not allow for working foremen.
In early June 1989 John Pappas, the owner and chief exec-
utive officer of Respondent, met with Union Business Agent
Charles Deignan and Chief Steward Thomas McCullough,
who was an employee at the Canton facility.
At this meeting, Pappas told Deignan and McCullough that
he wanted the collective-bargaining agreement modified to
permit the use of a working foreman.
The International Union had okayed the use of working
foremen in years past at some facilities where it represented
employees. A midterm contract modification would be re-
quired, however, before a working foreman would be al-
lowed at Respondent’s Canton facility. The meeting ended
with Pappas being allowed to present to the unit employees
his arguments in favor of the working foreman proposal and
the unit employees—who numbered 33 or 34 at the time—
then voting on whether or not to modify the collective-bar-
gaining agreement.
Pappas met with the unit employees and presented his ar-
guments in favor of the unit employees approving the work-
ing foreman proposal. He told the employees that if they did
not vote in favor of the working foreman proposal that he
‘‘had other options to exercise.’’ Pappas did not tell the em-
ployees what he meant by other options. This statement is
not alleged as violative of the Act.
Thereafter, Chief Steward Tom McCullough posted a no-
tice advising that a vote on the working foreman proposal
would be held right after work at a nearby church on June
28, 1989.
On June 26, 1989, Pappas approached McCullough at
work. Pappas, by his own admission, was upset that the vote
would take place away from the facility because, as he told
McCullough, he thought a number of unit employees might
go home right after work and not bother to vote. Pappas of-
fered, as he had before, to let the employees have the vote
at the plant and even be paid for their time. McCullough
would not change the location of the vote. Pappas went on
to tell McCullough, according to McCullough, ‘‘that he had
other options, namely the elimination of the diamond,
polycrystalline diamond section and very close company
899CRAFTS PRECISION INDUSTRIES
1 The equipment, according to a document relied on by all sides
to the case, consisted of:
‘‘2 Coburn PCD grinding machines
3 OK tool cutter grinding machines
2 Cincinnati cutter grinding machines
2 Benches 3 ft. by 6 ft.
2 Model T C—10 J.& L. Bench comparators
1 Myford cyl. grinding machine
1 Landis surface grinding machine
1 Christen Drill grinding machine
1 Zygo Laser measuring machine
also various and sundry fixtures and tooling for the above ma-
chines which were designed specifically for them to fabricate
and manufacuture PCD inserts, drills, reamers, tools, and wear
parts.’’
scrutiny loser jobs in the carbide section and that the net re-
sult of that would mean layoffs.’’
Two days later the unit employees voted at the nearby
church and not in the plant to reject the midterm modifica-
tion of the collective-bargaining agreement proposed by
Pappas.
Right after the vote McCullough told Pappas that the unit
employees voted against the working foreman issue. Pappas
wanted to know what the vote was but McCullough would
not tell him.
A collective-bargaining agreement is supposed to bring
stability to the workplace. A threat of a layoff or other dire
consequences if the unit employees did not agree to modify
the collective-bargaining agreement is violative of Section
8(a)(1) of the Act. See Mid-South Bottling Co., 287 NLRB
1333 (1988).
I credit the testimony of Tom McCullough. I found
McCullough to be an honest witness. He impressed me with
his demeanor. McCullough, who appeared to be a mild man,
clearly and unequivocally testified that Pappas threatened
layoffs as an option if the unit employees rejected the mid-
term contract modification. Pappas admits he told the unit
employees at the meeting before the vote and told
McCullough 2 days before the vote that if the unit employees
rejected the working foreman proposal he had other options.
He claims he never said what those options might be. At
hearing he claims the option was to grant the wish of a su-
pervisor who wanted to return to unit work and for Pappas
himself to take on more supervisory responsibilities.
B. Transfer of Part of the PCD Department
In late July 1989 Respondent transferred part of the PCD
department. It transferred from Canton, Massachusetts, to
Schiller Park, Illinois, no less than 15 pieces of machinery,
much of it used either exclusively or partially in the PCD de-
partment.1
The General Counsel contends that the transfer of the
equipment with resultant layoffs was to retaliate against the
employees for rejecting the working foreman proposal. Re-
spondent contends that the decision to transfer this equip-
ment was made prior to the union rejection of the working
foreman proposal but implemented after the rejection.
The evidence reflects that discussions months before the
union rejection of the working foreman proposal may have
been held but that the decision itself was made after the
union vote of June 28, 1989, and not before.
Respondent concedes that no documents exist in which ap-
proval to transfer the equipment is noted which reflect a date
prior to the union vote, whereas two documents introduced
into evidence at the hearing reflect that the decision to trans-
fer the equipment was made after the union vote of June 28,
1989, i.e., an affidavit of CEO John Pappas, dated August
1, 1989, in which Pappas states, ‘‘In early July 1989 Crafts
made a business decision to terminate the polycrystalline dia-
mond operations of the diamond department at its Canton fa-
cility,’’ and a letter from Respondent’s attorney to a union
attorney on September 6, 1989, wherein Respondent’s attor-
ney states that the Respondent advises him that the decision
to transfer the equipment was made ‘‘on or about July 7,
1989.’’
There is nothing in the collective-bargaining agreement to
prohibit the transfer of all or part of the PCD department or
any other plant equipment. Generally, a decision to transfer
all or part of a department and/or equipment is a managerial
decision about which the employer need not bargain unless,
of course, it does so for antiunion reasons, i.e., to retaliate
against the Union. See First National Maintenance Corp. v.
NLRB, 452 U.S. 666 (1981).
After Respondent formally advised its employees in a
memo dated July 26, 1989, that it was consolidating all cut-
ting tool manufacturing into a newly formed division, the
Union, by letter dated August 2, 1989, requested that Re-
spondent bargain about this transfer of work. Respondent, by
letter dated August 7, 1989, refused to bargain about the
transfer decision but did agree to engage in effects bar-
gaining only.
On August 17, 1989, the parties met. The Union reiterated
its request to bargain about the partial transfer of the PCD
department. Respondent refused to do so but did agree again
to engage in effects bargaining. If the Respondent partially
transferred the PCD department but did so without antiunion
animus it was relieved of any obligation to bargain con-
cerning the transfer. However, it is my conclusion that the
partial transfer of the PCD department was motivated, at
least in part, by antiunion animus on Respondent’s part, i.e.,
anger against the unit employees for rejecting Respondent’s
proposal to modify in midterm the collective-bargaining
agreement to permit a working foreman. Accordingly, Re-
spondent was not relieved of its obligation to bargain and its
failure to do so is a violation of Section 8(a)(1) and (5) of
the Act. See Mid-South Bottling Co., 287 NLRB 1333
(1988).
The juxtaposition of events, at least by a preponderous of
the evidence, pursuade me that Respondent’s motivation for
the transfer was antiunion. Any layoffs resulting from the
transfer would also violate Section 8(a)(3) of the Act. See
section C below.
C. Layoff of Eight Employees on August 22, 1989
In July 1989, but prior to the transfer of plant equipment,
Respondent laid off three employees. It is not alleged that
this layoff was in violation of the Act.
In late July 1989 the PCD department went through a con-
solidation and, as noted above, some equipment was moved
from Canton, Massachusetts, to Schiller Park, Illinois. I have
found that Respondent threatened to do this in its conversa-
tion with Tom McCullough on June 26, 1989, in violation
of Section 8(a)(1), and actually did it in violation of Section
8(a)(3), if any employees were adversely impacted, which I
find they were, and the consolidation and transfer, since done
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with antiunion animus, was also done in violation of Section
8(a)(5) of the Act.
One thing, however, is crystal clear; the Respondent’s
business was falling off. Tom McCullough, who I credit,
concedes that business was slow in the Canton facility for a
year or more prior to the transfer of the equipment. Some
layoffs may well be economically justified, e.g., the layoff of
the three employees in July 1989.
On August 22, 1989, eight employees were laid off. The
General Counsel alleges that all eight were laid off as a re-
sult of the unlawful partial transfer of the PCD department
and in addition that three of the eight employees, Tom
McCullough, William Hillson, and John Kierstead, were also
selected for layoff because they had engaged in other pro-
tected concerted activity. McCullough, Hillson, and Kierstead
filed grievances protesting their August 22, 1989 layoffs;
however, as noted above, deferral to the arbitral process is
not appropriate in this case.
Respondent maintains that no employees were laid off as
a result of the partial transfer of the PCD department. In sup-
port of this position they state, and there is no evidence to
the contrary, that no new employees were hired at Schiller
Park, Illinois, the facility to which the equipment was trans-
ferred and those laid off at Canton, Massachusetts, did not
work exclusively in the PCD area. Further sales figures
clearly justified a layoff and Respondent laid off in the man-
ner prescribed in the collective-bargaining agreement.
I will address the layoff of three of the eight employees
who were laid off, i.e., Tom McCullough, William Hillson,
and John Kierstead, separately from the other five employees
laid off, i.e., Kien Nguyen, Terrance Crowley, Son Le, Minh
Ha, and Thinh Pham.
I note at this juncture that based on demeanor, reasonable-
ness of testimony, failure to be impeached, and other factors
that I found McCullough, Hillson, and Kierstead to be very
credible witnesses.
None of the eight employees laid off on August 22, 1989,
were recalled. This was a permanent layoff.
1. Layoff of Chief Steward Thomas McCullough
On August 22, 1989, Chief Steward Tom McCullough was
laid off. McCullough began his employment with Respondent
in September 1977. He was a final inspector.
On July 6 or 7, 1989, the top management of Respondent,
i.e., John Pappas, Tom Kuhl, and Wilford Sheehan, met and
decided to lay off three employees and, it is claimed, to
eliminate the positions of final inspector (Tom McCullough’s
job) and maintenance machinist (William Hillson’s job).
McCullough and Hillson were not laid off, however, until
August 22, 1989.
McCullough was not only chief steward for the Union but
had incurred the wrath of CEO Pappas in the performance
of his union duties, e.g., it was McCullough who Pappas
threatened with employee layoffs if the Union did not agree
to the working foreman proposal, it was McCullough who re-
fused Pappas’ request to change the location of the vote on
the working foreman proposal from a nearby church to the
plant, it was McCullough who informed Pappas that the
Union rejected his working foreman proposal, it was
McCullough who refused to tell Pappas what the vote was,
it was McCullough who pressed management in July on its
promise of a pay raise to Hillson (see sec. III,C,2, below),
and it was McCullough who filed a grievance on behalf of
John Kierstead alleging that Kierstead was not being paid at
the proper rate of pay (see sec. III,C,3, below). Lastly,
McCullough testified that Supervisor Robert Sauer, who did
not testify, told McCullough in August 1989 before the lay-
off that McCullough had come up in a conversation in the
office ‘‘in some disfavor’’ and he wanted McCullough to be
on his best behavior.
As final inspector, McCullough inspected product from all
departments to include the PCD department. The final in-
spector’s position, after McCullough was laid off, was not
filled by a new employee but rather the functions of the final
inspector were taken over by the workers themselves, who
inspected their own work, and by outside contractors.
McCullough spent 20–25 percent of his time as final inspec-
tor involved with the PCD line product.
McCullough was working overtime up until June 1989. He
admits, however, that there was not an overload of work in
July and August. However, in light of all the evidence, I
must and do conclude relying on the analysis of Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), that McCullough would
not have been selected for layoff but for his protected con-
certed activity recited above. Respondent violated Section
8(a)(1) and (3) of the Act when it laid off McCullough on
August 22, 1989.
2. Layoff of William Hillson
Respondent made the decision, it claims, to eliminate the
positions of final inspector (Chief Steward Tom McCull-
ough’s job) and maintenance machinist (William Hillson’s
job) in early July 1989 but did not implement the decision
until August 22, 1989.
William Hillson began his employment with Respondent
in 1978. He credibly testified that 30 percent of his working
time was spent maintaining and repairing equipment on the
PCD line, much of which was transferred to Schiller Park,
Illinois, in late July 1989, the transfer of which equipment
I find to be unlawful in section III,B, above.
Back in 1987 Hillson filed a grievance claiming that he
should be compensated at a higher labor grade. He won the
grievance. Hillson claims that in 1989 he was entitled to re-
ceive a merit increase of 20 cents per hour but did not re-
ceive it. He complained. An agreement was reached that
Hillson would get a 10-cent-an-hour raise in January 1989
and a second 10-cent-an-hour raise in July 1989.
In July 1989 Hillson did not get the second 10-cent-an-
hour raise. He complained to management about this and to
Chief Steward Tom McCullough, who also complained to
management that Hillson had not received the second 10-
cent-an-hour raise promised to him many months before.
Hillson admits that he was not surprised by the August
layoffs in the general grinding area but that he was person-
ally busy at the time of his layoff but did detect less work
after the equipment was moved in July 1989. Respondent
claims that the job functions of the maintenance machinist
(Hillson’s old job) are now performed by employees left in
the plant with assistance from outside contractors.
Considering all the facts, i.e, the transfer of the equipment
in retaliation for the union rejection of the working foreman
proposal, the concerted complaints of Hillson and McCull-
ough for Hillson to receive the second 10-cent-an-hour raise,
901CRAFTS PRECISION INDUSTRIES
the fact that Hillson spent 30 percent of his time on PCD
department work, that outside contractors are being brought
in to do some of the work Hillson formerly performed, I
must conclude, considering the rationale of Wright Line,
supra, that Hillson’s permanent layoff on August 22, 1989,
was in violation of Section 8(a)(1) and (3) and would not
have occurred but for Hillson’s protected concerted activities.
3. Layoff of John Kierstead
John Kierstead began his employment with Respondent in
1983. On September 14, 1987, Kierstead was fired for al-
leged insubordination. He filed a grievance. In April 1988 an
arbitrator ruled that Kierstead should be reinstated but with-
out backpay. Respondent appealed the arbitrator’s decision to
the U.S. district court in Boston, Massachusetts.
On March 23, 1989, Judge Keeton of the U.S. district
court affirmed the arbitrator’s award and ordered that
Kierstead be reinstated. He agreed with the arbitrator that
Kierstead should not receive backpay.
On August 2, 1989, Respondent wrote to Kierstead offer-
ing him reinstatement effective August 14, 1989, at a lower
paid labor grade because ‘‘the polycrystalline diamond oper-
ations at Canton have been terminated.’’
The first 2 weeks of August were the annual 2-week sum-
mer vacation shut down.
When Kierstead returned to work on August 14, 1989, he
observed work he had previously done being done by other
employees. He concluded that as a result he should have
been reinstated at the higher paid labor grade he held when
discharged.
Kierstead consulted with Chief Steward Tom McCullough
and McCullough filed a grievance on Kierstead’s behalf. The
grievance was filed on August 18, 1989. Four days later, Au-
gust 22, 1989, Kierstead, McCullough, Hillson, and five
other employees were laid off.
Although Kierstead had successfully pursued his earlier
grievance from the fall of 1987 until August 14, 1989, when
the April 1988 award of reinstatement was finally honored
Kierstead was back at work for less than 2 weeks, i.e., from
August 14 to 22, 1989, when he was laid off. The reason
given Kierstead for his layoff was lack of work, but
Kierstead credibly testified that he was busy at work at the
time of his layoff. Most of Kierstead’s work was in the PCD
department, much of which had been relocated.
It is my conclusion that Kierstead was laid off in violation
of Section 8(a)(1) and (3) of the Act. I reach this conclusion
considering all the facts of the case. Kierstead, I find, was
laid off because, among other reasons, he filed another griev-
ance. I note that Kierstead won the right to be reinstated fol-
lowing his first grievance. Kierstead had been discharged in
the fall of 1987 for insubordination and the insubordination
was a refusal on Kierstead’s part to work with the son of
CEO John Pappas, the owner of Respondent, and teach the
young man his job. Pappas fired Kierstead for refusing to
train Pappas’ son and it was Pappas, the owner of Respond-
ent, along with Kuhl and Sheehan, who decided to lay off
Kierstead less than 2 weeks after he was ordered reinstated.
D. Layoff of Five Remaining Employees
In addition to McCullough, Hillson, and Kierstead five
other employees were laid off on August 22, 1989. None of
the five testified before me. It is alleged that they were laid
off as a result of the PCD department consolidation and
transfer of equipment and because they were unit employees
in a unit which rejected Respondent’s proposal to modify the
collective-bargaining agreement and adopt Respondent’s
working foreman concept.
I note that documentary evidence reflects a downturn in
Respondent’s sales. Financial records reflect that Canton fa-
cility sales figures were $4.7 million for the year ending De-
cember 1988, but only $3.7 million for the year ending De-
cember 1989. Financial records further disclose that sales fig-
ures for February through July 1989 were down from sales
figures for the same months in 1988. In addition, as noted
earlier, General Counsel witness Tom McCullough candidly
admitted work had been slow for some time and that he was
not surprised by the early July layoffs of three employees.
Further, General Counsel witness William Hillson was not
even surprised by the August 1989 layoff in the general
grinding area.
I believe, in light of all the evidence, that five of the em-
ployees laid off on August 22, 1989, i.e., Kien Nguyen,
Terrance Crowley, Son Le, Minh Ha, and Thinh Pham, were
laid off because of economic reasons and their layoffs were
not unlawful.
REMEDY
The remedy for the threat to transfer part of the PCD de-
partment with resulting layoffs if the Union did not agree to
modify in midterm its collective-bargaining agreement with
Respondent is a cease-and-desist order and the posting of no-
tice.
The remedy for carrying out the threat to partially transfer
the PCD department is a cease-and-desist order, posting of
a notice, and an order to restore matters to the status quo
ante, i.e., return the equipment transferred from Canton, Mas-
sachusetts, to Schiller Park, Illinois, back to Canton, Massa-
chusetts. The layoffs of McCullough, Hillson, and Kierstead
were caused, at least in part, by the partial transfer of the
PCD department.
The facility in Canton still exists and can house the equip-
ment if it is returned. The cost of transferring the equipment
to Schiller Park, Illinois, was $30,000. The equipment was
housed in Schiller Park, Illinois, in a rental property which
cost Respondent $1700 a month in rent. Apparently other
parts of Respondent’s operation are housed in Schiller Park,
Illinois, as well as in the same rental property in which the
equipment is now housed. The duration of the lease where
the equipment transferred from Canton to Schiller Park is
housed is not part of the record.
It does not appear that restoring matters to the status quo
ante will be unduly burdensome to Respondent; therefore, an
order to restore matters to the status quo ante will be or-
dered. See Lear Siegler, Inc., 295 NLRB 857 (1989); Reece
Corp., 294 NLRB 448 (1989).
With respect to the unlawful permanent layoffs of
McCullough, Hillson, and Kierstead the appropriate remedy
would include reinstatement with backpay.
CONCLUSIONS OF LAW
1. The Respondent, Crafts Precision Industries, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. The Union, Lodge No. 1836, District 38, International
Association of Machinists and Aerospace Workers, AFL–
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. When Respondent threatened partial elimination of the
PCD department and layoffs, if the Union did not agree to
a midterm modification of their collective-bargaining agree-
ment, Respondent violated Section 8(a)(1) of the Act.
4. When Respondent partially transferred the PCD depart-
ment with resultant layoffs because the Union rejected a pro-
posal to modify in midterm its collective-bargaining agree-
ment, Respondent violated Section 8(a)(1) and (3) of the Act
and when Respondent refused under these circumstances to
bargain with the Union about the partial transfer of the de-
partment and the transfer of equipment, Respondent violated
Section 8(a)(1) and (5) of the Act.
5. When Respondent permanently laid off Thomas
McCullough, William Hillson, and John Kierstead because
they engaged in protected concerted activity, Respondent vio-
lated Section 8(a)(1) and (3) of the Act.
6. The unfair labor practices of the Respondent described
above affect commerce in the meaning of Section 2(6) and
(7) of the Act.
[Recommended Order omitted from publication.]