Foam Fabricators Of Minnesota, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 511 (N.L.R.B. 1984)

FOAM FABRICATORS 5-11
Foam Fabricators of Minnesota, Inc. and District
No. 165, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, Peti-
tioner. Case 18-RC-13521
14 December 1984
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
The National Labor Relations Board, by a three-
member panel, has considered a determinative chal-
lenge in an election held 5 December 1983 and the
hearing officer's report recommending disposition
of it. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows eight for and eight against the Petitioner,
with one challenged ballot. -
The Board has reviewed the record in light of
the exceptions, has adopted the hearing officer's
findings and recommendations only to the extent
consistent herewith, and finds that a certification of
results of election should be issued (hearing offi-
cer's report is attached). We find, contrary to the
hearing officer, that as of the date of the election
Wendell Ross did not have a reasonable expectan-
cy of recall in the near future. Accordingly, we
uphold the challenge to Ross' ballot.
The Employer is a fabricator of synthetic foam
products and employs approximately 18 workers at
its facility in Maple Lake, Minnesota. Its business
in the past 8 years has followed a fairly regular
pattern. Until October 1983 the Employer never
laid off any of its employees. As a result of expan-
sion in May 1983 1 the Employer opened a premold
department to produce packaging foam molds fab-
ricated from isocyanate foam.
Wendell Ross was hired on 9 May to help staff
the new premold department. When hired Ross
was told that he would be worked into other de-
partments if premold work was low. In fact, he did
work in various other departments of the Employ-
er from time to time.
In early October the Company learned that its
premold purchase order 'contract from Central
Container Corporation was terminating and that no
further orders from this major customer would be
forthcoming. The Employer's president, Richard
Somers, testified that upon learning this he decided
a reduction in the work force of the premold de-
partment was necessary and that the reduction
should be accomplished by laying off the least
'Unless otherwise indicated, all dates herein are in the calendar year
1983'
senior full-time employee: 2 -On 13 October Somers
explained the business situation to Ross. Somers
told him that one part-time employee had less se-
niority and that Ross could take that position if he
wanted to. Ross declined the offer. Somers then
handed him a memo, of which the first paragraph
read:
We are experiencing a noticeable reduction in
the volume of new orders. Unfortunately this
necessitates a reduction in our work force.
Your employment date . . . places you lowest
in seniority in our work force. Therefore we
are compelled to lay you off at this time. It is
not possible to forecast the duration of this
layoff.
At the time of Ross' layoff some premold work
remained unfinished. This was completed by two
other employees in early November.
The record indicates that the only information
Ross received regarding the possible duration of
his layoff was the notice itself. Between 13 October
and 5 December, the date of the election, there
was no further contact between Ross and the Com-
pany.
In mid-November the Company's sales represent-
ative Mark Somers was enthusiastic regarding a po-
tential new premold contract from a large custom-
er. President Somers' testimony indicated that if
the contract had been approved the Company
might have reopened the premold department in
February 1984 at the earliest. 3 It is clear from the
record that at no time was the news of this poten-
tial contract communicated by the Company to
Ross. Nor was Ross contacted at any time to see if
he would be interested in returning to work in
February. Although there may have been an initial
enthusiastic report concerning this potential cus-
tomer, there is nothing to indicate that the Compa-
ny took any further action other than waiting to
see if its bid was going to be accepted. As of 9 De-
cember it knew that,its bid would not be accepted.
It is well established that the entitlement of laid-
off employees to vote in a representation election
depends on whether such employees have a reason-
able expectancy of recall in the near future. The
determination of this expectancy in turn depends
on objective factors including the past experience
of the employer, the employer's future plans, and
2 Since the Employer had never laid anyone off before this was its first
application of seniority
This potential contract was at best a hopeful expectation on the part
of the Company
Q Did he [the sales representative] have any firm commitments
from whatever the customer—potential customer—was, for the
work9
A No Only a conversation No purchase order or anything else.
273 NLRB No. 80
512

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the circumstances of the layoff, including what-em-
ployees were told as, to, the likelihood of recal1.4
The appropriate time frame when determining ex-
pectancy of recall is the situation as it existed at the
time of the election rather than subsequent devel-
opments.5
When the employer has had a past history of
layoffs and recalls it is somewhat easier to deter-
mine exactly what would be a reasonable expectan-
cy of reemployment in the near future. If the busi-
ness pattern follows a cyclical or seasonal term and
employees who are laid off are usually rehired, the
prediction can be made with some accuracy.6
However, here it is clear that the Employer has
had no pat history of layoffs and -recall. The
record indicates that the Employer's business has
been more or less stable for the past 8 years. The
recently created premold department was a busi-
ness venture based on anticipated purchase orders
requiring prembld foam. Ross was informed that
the department was new before he was hired. In
fact the premold department was not operational
until he was hired by the Employer. When the
major purchase order to supply foam fabricated in
the premold department was canceled Somers de-
cided to complete the remaining small orders and
close the department. Thus, for the first time in 8
years the Employer - made a decision to lay off one
of its employees.
AlthOugh Ross was informed when hired that
the Company had never laid off any employees
there was no way for the Company to foresee that
it would lose its major purchase order for the
product Ross was being hired to produce. There
was also no way for the Company to accurately
predict whether it would again reopen the premold
department.
Absent any employer past experience or future
plans, where an employee is given no estimate as to
the duration of the layoff or any specific indication
as to when, if at all, he will be recalled there is no
reasonable expectancy. Vague statements by the
employer as to the "chance" or "possibility" of the
employee being rehired do not provide an adequate
basis for concluding that the employee had a rea-
sonable expectancy of reemployment.. Tomadur,
Inc., supra. Here, the Employer's hope that it could
reopen the premold department was never dis-
closed to Ross. He was informed only that it was
not possible to forecast the duration of the layoff.
We find that such a statement, without more, does
not give rise to a reasonable expectancy of recall.
4 Precision Tumbling Co, 252 NLRB 1014 (1980), High Energy Corp,
259 NLRB 747 (1981)
5 Tomadur, Inc , 196 NLRB 706 (1972)
6 Atlas Metal Spinning Go, 266 NLRB 180 (1983)
The statement by the Employer, that it was :"com-
pelled to lay [Ross] off at this time," is nothing
more than a vague implication that Ross may even-
tually be recalled and 'is insufficient to give rise to
a reasonable expectation of recall in the near
future.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that at a majority - of the valid
ballots have not been cast for District No. 165,
International Association of Machinists and Aero-
space Workers, AFL-CIO and that it is not the ex-
clusive representative of these bargaining unit em-
ployees.
MEMBER ZIMMERMAN, dissenting":
Contrary to my collegues I find that there was a
reasonable expectancy at the time of the election
that laid-off employee Wendell Ross would be re-
called in the near future. AccOrdingly, I would
affirm the hearing officer's recommendation that
the challenge to the, ballot of Wendell Ross be
overruled. My colleagues' arrival at the contrary
result flows from a distorted application of prece-
dent.
It is well settled, as my colleagues do not dis-
pute, that a reasonable expectancy of recall in the
near future entitles an employee on layoff to vote
in a representation election. The existence of such
an expectancy is evaluated on the basis of several
objective factors, only one of which is given any
effect by the Majority. As the Board recently held
in Atlas Metal Spinning Co.„266 NLRB 180 (1983),
"the objective factors which the Board employs to
determine whether an employee possesses such an
expectancy include the employees past experience,
the employer's future plans, the circumstances of
the layoff, and what the employee was told about
the likelihood of recall" (emphasis , added).
Application of these criteria to the instant case
leads easily to the conclusion that at the time of the
election Ross had a reasonable 'expectancy of recall
in the near future. Nothing in the Company's past
experience indicated that Ross' layoff would be
particularly long or permanent. The Employer had
never before laid off even a single employee in 8
years of operation prior, to October 1983. Indeed,
as recently as May 1983, the Employer had actual-
ly expanded its operations.' Therefore, the Em-
ployer's statement to Ross that "we are compelled
to lay you off at this time" (emphasis added) is an
Thus, contrary to my colleagues' assertion that there is an "[absence
ofj any employer past experience," the record establishes that the Em-
ployer has a past experience of no layoffs within the last 8 years as well
as a recent expansion of operations
FOAM FABRICATORS 513
indication that the anticipated duration of the
layoff would not be particulaily long, and was rea-
sonably likely to last only until the Employer's
volume of new order . increased. The Employer's
next statement, "It is not possible to forecast the
duration of this layoff," is no more than a simple
statement of fact which in no way portends a long
or short layoff; ' thus, unlike the preceding state-
ment, it cannot be considered an objective indica-
tion of how long or short Ross' layoff would be.2
The test for determining expectancy of recall in
the near future is based on the situation as it existed
at the time of the election, rather than on subse-
quent developments. 3 Here, at the time of the elec-
tion of 5 December 1983, the Employer's top man-
agement was "very enthusiastic"—and had been so
since mid-November—about 'a potential contract
which would necessitate the reestablishment of
Ross' department. Award of that contract to the
Employer would enable the recall of Ross (whom
the Employer considered a good employee) about
2 months later. 4 On 9 December, .4 days after the
election, the Employer's .expectations of increased
business were defeated. But the fact remains -that,
at the time of the election, there was a reasonable
expectancy that as a result of- the anticipated con-
tract Ross would be recalled in the near future.
That the anticipated contract was eventually lost in
normal bidding, does not' post 'facto undermine the
reasonableness of the Employees expectations
during the contract bidding period.
My colleagues hinge their decision solely on
what Ross was told at the time of his layoff. They
state -that if there is no "estimate as to the duration
of the layoff. or any. specific indication as to when,
if at all, he will be recalled," there is no reasonable
expectancy that an employee will be recalled. This
absolute statement ignores the Board's longstanding
practice of considering 'Other applicable criteria in
such cases. My colleague 's also distort Board prece-
dent by using a subjective analysis based on em-
ployee reaction to employer statements rather than
the objective test that has consistently been applied
by the Board. In so doing they establish that a laid-
off employee's eligibility to vote depends solely on
what he is told by the employer, rather than on the
reasonable prospect that this employee will in the
- near future again be part of the work force which
is electing whether or not to be represented. My
2 Atlas Metal Spinning Co , 266 NLRB 180 (1983) (failure to provide
employee with specific . date on which to expect 'recall not an indication
that employee had no reasonable elpectancy of recall in near future)
3 Atlas Metal Spinning Co, supra, High Energy Corp, 259 NLRB 747,
761 (1981), Zatko Metal Products Co, 173 NLRB 27, 33 (1968) •
4 Again, contrary to what my colleagues perceive as an "[absence ofj
future plans," the record establishes that the Employer had future
plans which if realized would result in the reestablishment of Ross' de-
partment, and lead directly to his recall from layoff
colleagues' decision - undermines the Act's objec-
tives of protecting employee rights to participate in
a secret-ballot election. I therefore dissent.
APPENDIX
HEARING OFFICER'S REPORT AND
RECOMMENDATION TO THE BOARD ON
CHALLENGED BALLOT
Pursuant to a Stipulation For Certification Upon Con-
sent Election Executed by the parties an approved by
the Acting Regional Director for Region Eighteen of the
National Labor Relations Board on November 11, 1983,1
an election by secret ballot was conducted among certain
employees of the Employer 2 on December 5. Upon the
conclusion of the election a Tally of Ballots was served
on the parties in accordance with the Board's Rules and
Regulations. The Tally of Ballots disclosed that the chal-
lenged ballots were sufficient in number to affect the re-
sults of the election. 3 The Acting Regional Director
issued and served on the parties on December .12, a
Report on Challenged Ballot, Order Directing Hearing
on Challenged Ballot and Notice of Hearing. Pursuant
thereto, a hearing was held on December 22, before the
undersigned Hearing Officer duly designated for the pur-
pose of Conducting such, hearing. All parties were repre-
sented at -the hearing.and had full opportunity to call, ex-
amine and cross-examine witnesses, to introduce evi-
dence pertinent to the issues, and to make statements in
support of their respective positions.
Upon the entire record in this case, and from my care-
ful observation of the demeanor and manner of the wit-
nesses while testifying under oath, I make the following4
FINDINGS OF FACT AND CONCLUSIONS
As part of the Stipulation For Certification Upon Con-
sent Election executed by the Employer and the Peti-
tioner, the parties incorporated a written and signed eli-
gibility list wherein it was agreed that the eligibility list
would be final and binding upon the parties pursuant to
the doctrine established in Norris-Thermador Corporation,
119 NLRB 1301 (1958) However, by the terms of this
eligibility list, the parties expressly reserved . "the right to
Unless otherwise indicated, all dates herein are in the calendar year
1983
The appropnate collective bargaining unit to which the parties stipu-
lated is defined as
All full-time and regular part-time production and maintenance em-
ployees employed by the Employer at its Maple Lake, Minnesota fa-
cility
3 Approximate number of eligible voters-18
Void ballots--O
Vot6 cast for Petitioner-8
.Votes cast against Petitioner-8
Challenged ballots-1
Valid votes counted plus challenged ballots-17
4 In the resolution Of all issues for which the credibility or oral testi-
' mony becomes a factor, I have carefully considered the demeanor and
conduct of the witnesses as well as their candor, their objectivity, their
bias or their lack thereof and have carefully weighed the witnesses' un-
derstanding of the matters to which they testified, the plausibility, con-
sistency and probability of their testimony, as well as whether parts of
their testimony should be accepted when other parts are rejected. .
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
challenge the voting eligibility (of Wendell Ross) as the
employee is on layoff status."
During the election conducted on December 5, the
Employer challenged the ballot of Wendell Ross, con-
tending that he was no longer an employee of the Em-
ployer. At the hearing, the Employer maintained this po-
sition. The Petitioner's contention has been that Wendell
Ross was temporarily laid 'off on October 13 and had a
reasonable expectancy of reemployement at the time of
the December 5 election. In the course of the December
22 hearing, Richard Somers, President and General Man-
ager of Foam Fabricators of Minnesota, Inc. and Wen-
dell Ross testified.
Wendell Ross was hired by Foam Fabricators of Min-
nesota, Inc ; On May 9 to work as a premolder in the
Company's newly reestablished premold department,
wherein packaging molds are fabricated from isocyanate
foam. Prior to the reopening of a premold department in
May, the Company had such a department for a three-to-
four month period in 1981. The occasion prompting the
premold department's recreation in May was the acquisi-
tion of a major purchase order from Central Container
Corporation; this purchase order comprisded 90-95% of
the premold department's work orders. At the time the
premold department was reopened, a Company employ-
ee, Steve Mooney, was transferred from.the Company's
cutting area to work with the newly hired Ross in pre-
mold. Additionally, a third employee was occasionally
called in to assist Ross and Mooney when further labor
was necessary. When the premold department equipment
was for some reason inoperative, Ross and Mooney
would work in other areas of the Company. Somers tes-
tified that Ross was, in fact, capable of working in any
department. , Ross' testimony was that he spent approxi-
mately 15-20% of the work time in departments other
than premold. Ross also testified that at the time he was
hired, he specifically asked Plant Superintendent John
Provo about the permanency of the premolder position
and that he was told 'that he would be worked into other
departments if premold work was low. The fact that the
Company had never had a layoff was used as an "entice-
ment" during the interview, according to Ross.
In early October, the Company learned that the pur-
chase order from Central Container Corporation was ter-
minating and that no further orders from this major cus-
tomer would be anticipated. Somers testified that, upon
learning this, he ' decided that a reduction in the work-
force, i.e., the premold department, was necessary. On
October 13, Somers handed to Ross a memo, of which
the first paragraph reads:
Dear Sir.
We are experiencing a noticeable reduction in the
volume of new orders. Unfortunately this necessi-
tates a reduction in our work force. Your employ-
ment date of May 9, 1983, places you lowest in se-
niority in our work force. Therefore we are com-
pelled to Jay you off at this time. It is not possible
to forecast the duration of this lay off.5
5 Somers testified that this had been the only application of. senionty
Foam Fabricators' history
After receiving this memo and declining the offer of a
parttime job at a reduced .pay rate,i Ross punched- out
and left the _Company's facility. No conversation as to
the nature or duration of the layoff occurred
Somers testified that it the time of Ross' layoff, ap-
proximately $7200 6 volume of-premold - work remained
to be completed, and that Mooney and emPloyee Joan
Greninger finished this in early NOvembef. After this,
Mooney and Greninger were transferred to full-time- po-
sitions . in other departments of the Company. From
about November 15-18, 1983, the premold department,
staffed with Mooney and .Greninger, completed a small
order for another premold account.
In mid-November, 1983, Foam Fabricators sales repre-
sentative Mark Somers (President Richard Somers' son)
returned from Omaha, Nebraska, with what Richard
Somers testified. to as a "very enthusiastic" report re-
garding a potential contract with Control Data Corpora-
tion, which contract would necessitate the reestablish-
ment of the premold department in approximately Febru-
ary, 1984. 7 Somers further testified that if the premold
department were to reopen, he would hire Ross, whom
he considers to have been a good employee. Somers' op-
timism that this premold contract, for which the Compa-
ny had submitted a bid in August or September, would
be obtained continued until December 9. Somers testified
that Mark Somers learned on December 9 that the Con-
trol Data contract bid had fallen through and that he
himself was so notified on December 12. The premold
department has not been in operation since about No-
vember 18, and Somers states that "it's under investiga-
tion" whether the lease for the leased premold equip-
ment can be broken, in view of the departments' shut-
down.
Based on the foregoing and the record as a: whole, I
conclude that at the time of the representation election
Wendell Ross enjoyed an expectancy of recall and that
this expectancy was a reasonable one. I rely particularly
on the fact that as- of the date of the election, i.e., De-
cember 5, it was anticipated that a sizable premold con-
tract would be obtained which would result in reinstat-
ing both the premold department and according to
Somers, Ross as, an employee. "The test for determining
the expectancy of recall is the situation as it existed at the
time of the election." Atlas Metal Spinning Co., 266 NLRB
180 (1983) (emphasis added), citing Thomas Engine Cor-
poration, 196 NLRB 706 (1972). The fact that the Com-
pany learned on December 9 that this contract would
not be obtained after all is inconclusive as to Ross'
voting eligibility. on December 5 Likewise, Somers' tes-
timony that there were no prospects for premold orders
at the time of the hearing has no bearing on Ross' voting
rights at the time the election was conducted. Atlas
6 According to Somers' testimony, the average monthly sales volume
from the premold department was $8,018
Somers' testimony that, on the basis of the Control Data report, the
premold department might reopen in February 1984 is consistent with an
affidavit given to the Board dunng the investigation of Case No 18-CA-
8516, which affifavit was admitted Into evidence at the December 22
hearing herein However, my findings and conclusions are based solely
on Somers' testimony at the heanng and were made without reference to
or reliance upon this affidavit
'FOAM FABRICATORS 515
MetaItSpinning'Co.,-,above. Further, nothing: in the-Com-
pany's past revealed to Ross that his layoff would be
permanent; in fact, Ross' uncontradicted testimony indi-
cated that the Company's, no-layoff history , was specifi-
cally emphasized during Ross', employment _interview.
Therefore, Smilers, October 13 memo- to Ross that he
was compelled "to lay. you off at this time"'reaSonably
created an expectancy . of recall. The' facts, that the dura-
tion of the layoff was 'not specifically stated or that the
future personnel needs of Foam Fabricators were -still
unclear do not negate , the reasonableness of. this expect-
ancy. See, e.g., -Atlas _Metal Spinning Co.; above, Jobbers'
Supply Inc., 236 NLRB, 112, , 113..(1978); 'enforced, '625
P.2d, 754 (6th Cir. 1980).
,RECOMMENDATION
In accordance with the foregOing facts, I recommend
that the challenge' to the ballot of Wendell Ross be over-
filled, -and that Ross'. ballot be_ opened and counted in
order that' a Revised -Tally of' Ballots may be issued - and
served on the parties.-
I further recommend that if-the Revised-Tally of Bal-
lots reveals that the Petitioner has received a majority of
the valid votes cast, a ,Certifiation of Representative
issue. On the other hand, if the Revised Tally of Ballots
reveals that the Petitioner has 'not received a majority of
the valid votes cast, it is recommended that a Certifica-
tion of Results issue.4
8 As provided in Section , 102 69 of the Rules and Regulations of the
National Labor Relations Board, Series 8, amended, within 10 days from
the date of Issuance of this Report, any party may file with the Board in
Washingion, D C an original and seven . copies of exceptions thereto Im-
mediately upon the filing of such exceptions, the party filing same shall
serve a copy thereof on- the other parties and shall file a copy with the
Regional Director and a statement of service shall be made to the Board
simultaneously therewith If no exceptions are filed hereto, the Board will
adopt the recommendations of the Hearing Officer
-