Monroe Auto Equipment

National Labor Relations Board - Board Decisions

Dec 6, 1984

273 N.L.R.B. 103 (N.L.R.B. 1984)

MONROE AUTO EQUIPMENT 103
Monroe Auto Equipment Division of Tenneco Auto-
motive and Employee Committee of- Monroe
Auto Equipment Co., Petitioner. Case 10-RD-
859
6 December 1984
DECISION ON REVIEW
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 18 November 1983 the Regional Director for
Region 10 issued a Decision and Direction of Elec-
tion in the above-entitled proceeding' finding, inter
alia, that 71 employees of the Employer who had
been laid off on - 7 September 1982 and had not
been recalled as of 18 November 1983 had a rea-
sonable expectancy of being recalled at a later time
and therefore were eligible to vote in the decertifi-
cation election petitioned for by the Petitioner.
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and
Regulations, the Employer and the Petitioner .both
filed timely requests for review of the Regional Di-
rector's decision-contending, inter aim, that the Re-
gional Director's finding that the 71 laid-off em-
ployees had a reasonable expectancy of recall and
were eligible to vote in the election was clearly er-
roneous and departed from established Board
precedent. The Intervenor subsequently filed a
statement in opposition to the Employees request
for review.
The Board, by telegraphic order dated 25 Janu-
ary 1984, granted the Employer's and the Petition-
er's requests for review with respect to the Region-
al Director's finding that the 71 laid-off- employees
had a reasonable expectancy of recall and were eli-
gible to vote in the election. 2 Thereafter, the Inter-
venor filed a brief in support of the Regional Di-
rector's decision, and the Petitioner filed a memo-
randum of law in opposition to the Regional Direc-
tor's decision. The Petitioner also filed a motion to
reopen the record to admit additional evidence,
and the Intervenor filed a response in opposition to
the Petitioner's motion to reopen the record.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the entire record in
this case with respect to the issue under review,
along with all of the documents filed by the par-
ties, and makes the following findings.
International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), and its Local Union No 1427
Intervened in this proceeding
2 The Board denied the requests for review in all other respects
The Employer, a Delaware corporation with
Michigan headquarters, operates a facility in
Hartwell, Georgia, which manufactures shock ab-
sorbers and struts for automobiles. Prior to 7 Sep-
tember 1982 the Hartwell facility was devoted pri:
manly to the manufacture of shock absorbers and
struts for the new-car market and secondarily to
the manufacture of shock absorbers and struts for
the replacement part market. Since at least early
1978 the Intervenor has been the collective-bar-
gaining representative of a bargaining unit com-
posed of the production and maintenance employ-
ees at the Hartwell facility. The most recent collec-
tive-bargaining contract between the Employer and
the Intervenor, which took effect on 15 December
1980, provided that it would remain in effect until
16 December 1983 and from year to year thereafter
unless either one of the parties gave a written
notice of termination at least 60 days in advance.
On 7 September 1982 the Employer laid off 124
of the employees in the bargaining unit. 3 Accord-
ing to the uncontradicted testimony of Hartwell
Plant Personnel Manager Charles Byrd, the Em-
ployer instituted the 1982 layoff primarily because
the nation's new-car industry had entered a serious
sales slump and secondarily because the Employ-
er's Michigan headquarters officials had decided to
transfer the manufacture of shock absorbers and
struts of the replacement part market out of the
Hartwell facility. The layoff of 124 bargaining unit
employees was accompanied by the layoff of 26
salaried individuals, including 15 individuals who -
were supervisors or- foremen and directly super-
vised bargaining unit employees. After The layoff of
124 bargaining unit employees and 26 salaried indi-
viduals was carried out, the operation of- the
Hartwell facility was 'consolidated from two shifts
into one shift and the positions of the salaried indi-
viduals who were laid off either were combined
with the positions of salaried individuals who were
not laid off or were eliminated altogether. .
At the time the 1982 layoff wa announced, the
Employer's Michigan headquarters issued a press
release describing the layoff as "a response to the
current soft market demand" in the new-car market
and quoting Company Director of Human Re-
sources G. D. Gieske as saying, "Although indus-
try analysts are not predicting an increase in
demand in the near future, we look forward to the
day that our Hartwell plant returns to its former
level of production." At the same time, Company
Manager of Manpower Development John Wein-
3 The Regional Director's statement that the Employer laid off only
123 of the employees is not borne out by an examination of the Employ-
er's documentary and testimonial evidence
273 NLRB No. 14
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
garten and Hartwell Plant Personnel Manager
Bryd told Union President Thomas Herring that
the Employer was instituting the layoff because
new-car sales were down and that they hoped that
new-ca'r sales would "pick back up" and the Em-
ployer's business would "pick back up." According
to the uncontradicted testimony of Byrd, Byrd at
no time told any of the laid-off employees or the
Intervenor's officials either that the layoff was tem-
porary or that the layoff was permanent. Accord-
ing to the uncontradicted testimony both of Byrd
and of Herring, Byrd at no time sent written no-
tices or letters to any of the laid-off employees or
the Intervenor's officials stating that the employees
did not -have a reasonable expectancy of being re-
called and at no time told any of the Intervenor's
officials that the employees did not have a reasona-
ble expectancy of being recalled. Bryd testified
without contradiction that he told those of the laid-
off employees who asked him whether they would
be called back "any time soon" that the Employer
did not have "any reasonable expectation of calling
anyone back in the near future because of the eco-
nomic situation," that the Employer was "tied di-
rectly with the new car market," and that "until
the new car market . . . itself came out of the
slump [the Employer] would not be in a position to
call anyone back." -
On 1, 6, 9, and 13 June 1983 and 18 August 1983
the Employer- invited a total of 32 of the bargain-
ing unit employees included in the 1982 layoff to
return to work on a temporary basis. Twenty-nine
of the employees accepted the invitation and were
reinstated on a temporary basis; three of the em-
ployees declined the invitation and retained -their
rights as laid-off employees in accordance with the
provisions of the collective-bargaining contract. On
15 August 1983 and 26 September 1983 the Em-
ployer invited a total of 53 of the bargaining unit
employees included in the 1982 layoff to return to
work on a permanent basis. Forty-six of the em-
ployees accepted the invitation and were reinstated
on a permanent basis; seven of the employees de-
clined the invitation and were terminated as com-
pany employees in accordance with the provisions
of the collective-bargaining contract. The 1983 per-
manent recalls included 29 of the employees in-
cluded in the 1983 temporary .recalls. None of the
salaried individuals included in the 1982 layoff was
invited to return to work either at the time of the
1983 recalls or at any other time.
According to the uncontradicted testimony of
Hartwell Plant Personnel Manager Byrd, the Em-
ployer instituted the 1983 temporary recalls be-
cause the Employer was experiencing an increase
in strut production requirements which Michigan
headquarters officials predicted would last -about 90
days. 4 According to the uncontradicted testimony
of Byrd, the Employer instituted the 1983 perm
nent recalls because headquarters officials decided
that the Employer was not going to experience
lower strut production requirements again. Byrd
testified without direct contradiction that after the
1983 permanent recalls were carried out, company
officials concluded that the 53 employees included
in the 1983 permanent recalls would be sufficient to
meet the Hartwell facility's planned production
schedule for the rest of 1983 and that the 71 em-
ployees included in the 1982 layoff and not includ-
ed in the 1983 permanent recalls . did not have a
reasonable expectancy of being recalled. Byrd also
testified without direct contradiction that at the
time of hearing on 3 November 1983, he continued
to consider that the 71 employees included in the
1982 layoff and not included in the 1983 permanent
recalls did not have a reasonable expectancy of
being recalled.
The collective-bargaining contracts between the
Employer and the Intervenor have always provid-
ed "that laid-off employees automatically lose all se-
niority and are terminated if they are not recalled
before the expiration of a period of 15 months or a
period equal to their plant seniority, whichever
period is shorter. From the beginning of 1979 until
the time of the 1982 layoff, 360 bargaining unit em-
ployees included in layoffs at the Hartwell facility
were not recalled before the expiration of -the ap-
plicable period and were accordingly terminated.
Of the 360 employees so terminated, 12 were sub-
sequently rehired. •
Undisputed documentary evidence introduced by
the Employer indicates that from June 1979 until
November 1983, the number of bargaining unit em-
ployees at the Hartwell facility were reduced from
630 employees to 301 employees. The same evi-
dence indicates that from June 1979 until Novem-
ber 1983, the monthly productivity of bargaining
unit employees at the facility was steadily increased
from 50.7 units per employee to 93 units per em-
ployee. Hartwell Plant Personnel Manager Byrd
testified without contradiction that since June 1979,
the Employer has had a companywide manage-
ment-by-objectives program containing guidelines
4 Although Byrd testified that the Increase in strut production require-
ments was expected to last about 90 days, the evidence does not indicate
exactly how long the temporary recalls were expected to last The
memoranda from Bryd to Hartwell Plant Senior Accountant Gene Cleve-
land announcing the temporary recalls stated that the employees involved
would be used as "spares" and that the employees' jobs, rates, and de-
partments could vary from day to day The collective-bargaining con-
tract states that temporary employees are hired "for a designated (but
limited) period of time such as, but not limited to, during the summer va-
cation period or during the Christmas holidays"
MONROE AUTO EQUIPMENT 105
which provide that every facility must try to
reduce its labor costs and its material costs by 10
percent a year. According to the uncontradicted
testimony of Byrd, the Hartwell facility has , met
the guidelines every year.
Since at least 1981, .the Employer has subcon-
tracted out some of the janitorial work at the
Hartwell facility to other employers. Since the
1982 layoff, the Employer has had from about 7000
to about 21,000 of the shock absorbers manufac-
tured each week at the facility sorted and packed
by handicapped adults at a nearby center for the
handicapped. At the time of the hearing, the Em-
ployer was using independent contractors to re-
paint the facility.
Hartwell Plant Personnel Manager Byrd testified
without contradiction that at the time of the insti-
tution of the Employer's management-by-objectives
program, Michigan headquarters officials decided
that it would be more cost-effective for every facil-
ity to meet production requirements by having ex-
isting employees work overtime rather than by
hiring additional employees. Byrd testified without
.contradiction that employee fringe benefits at the
Hartwell facility are equal to about 35 percent of
regular employee wages and that having existing
employees work overtime does not require the Em-
ployer to pay additional fringe benefits. Undisputed
documentary evidence introduced by the Employer
indicates that from January 1979 until October
1983, the quarterly number of hours of overtime
worked at the Hartwell facility was increased from
about 4805 hours to about 94,563 hours and the
quarterly percentage of the total number of hours
worked at the facility which was composed of
oyertime was steadily increased from 2.2 percent to
20.8 percent. Seven bargaining unit employees tes-
tified without contradiction that during the 2 or 3
months immediately preceding the hearing, they
and a number of other bargaining unit employees
regularly worked from about 8 hours to about 60
hours of overtime a week. According to the undis-
puted testimony of several of the bargaining unit
employees, company officials at no time told them
.either that the existing level of overtime would be
maintained or that the existing level of overtime
would be reduced. According to the undisputed
testimony of Bryd, company officials did not have
any intention at the time of the hearing that the ex-
isting level of overtime would be reduced.
Hartwell Plant Personnel Manager Byrd testified
without contradiction that the Employer added
American Motors as a customer at some time after
the 1982 layoff and that he was aware that at some
time Chrysler Corporation, another one of the Em-
ployer's customers, experienced a dramatic increase
in sales. Byrd also testified without contradiction
that the Hartwell facility is the only strut manufac-
turer in Georgia and that - that fact has significantly
increased the facility's production requirements.
According to Union President Herring, company
officials announced around July 1983 that they
wanted the Hartwell facility's daily strut produc-
tion to be increased from 6500 units to 10,000 units.
Two shipping department employees testified that
during the 2 months immediately preceding the
hearing, the volume of shock absorbers and -struts
shipped from the facility increased noticeably; one
shipping department employee testified that the
volume of shock absorbers and struts did not in-
crease noticeably. Undisputed documentary evi-
dence introduced by the Employer indicates that in
April, June, August, and October 1983, respective-
ly, the facility's monthly production of shock ab-
sorbers and struts was 24,900 units, 25,500 units,
24,400 units, and 28,100 units.
The Board has traditionally held that laid-off eni-
ployees are eligible to vote in a Board-conducted
representation election only if they. have a reasona-
ble expectancy at the time of the election of being
recalled in the near and foreseeable future. Lenizox
Industries, 250 NLRB 58 (1980); Allied Products
Corp., 220 NLRB 634 (1975); Marley Co., 131
NLRB 866, 869 (1961). In determining whether
laid-off employees have a reasonable expectancy Of
recall, the Board evaluates "objective factors"
which include "the employer's past experience, the
employer's future plans, the circumstances of the
layoff, and what the employee[s] w[ere] told about
the likelihood of recall." Atlas Metal Spinning Co.,
266 NLRB 180 (1983). Accord: D. H Farms Co.,
206 NLRB 111, 113 (1973). After evaluating all' of
the objective factors which are present in this case
and which we have described in detail above, we
conclude, in disagreement with the Regional Direc-
tor, that the 71 Hartwell employees included in the
1982 layoff and not included in the 1983 permanent
recalls did not have a reasonable expectancy of
recall and therefore were not eligible to vote in the
decertification election petitioned for by the Peti-
tioner.
In concluding that the 71 laid-off employees do
not have a reasonable expectancy of recall in the
near and foreseeable future, we place particular
emphasis on the extensive and undisputed record
evidence indicating that the Employer has long
been engaged in and continues to be -committed to
a conscious effort to reduce the size of the
Hartwell facility's work force. As we have de-
scribed in detail above, undisputed evidence shows
that of the 360 bargaining unit employees who
were included in layoffs at the facility during the
106 DECISIONS OF' NATIONAL -LABOR RELATIONS BOARD
approximately 3-1/2 years preceding the 1982
layoff and were not recalled before the expiration
of the period specified in the collective-bargaining
contract, only 12 were ever fehired. 5 Undisputed
evidence shows that the 1982 layoff itself was insti-
tuted 'both because the new-car industry had en-
tered an extended sales slump and -because head-
quarters officials had decided to transfer the manu-
facture . of 'shock absorbers and struts for ` the re-
placement part market out of the facility altogeth-
er. Undisputed evidence shows that of the -15 su-
pervisory salaried individuals and the 11 nonsuper-
visory salaried individuals who were also inclUded
in the 1982 layoff, -none was ever recalled. Undis-
pined evidence shows that during the approximate-
ly 3-1/2 years preceding' the hearing, the number
of the bargaining unit employees at the facility was
reduced by about 52 percent and the productivity
of the bargaining unit employees was increased by
about 83 percent. Undisputed evidence shows that
duting the approximately 3-1/2 years preceding the
hearing, the Employer reduced - the facility's labor
aists by at least 10 percent every year and that at
the time of the hearing, the Employer planned to
continue to reduce the facility's labor_ costs by at
least such a percentage every year. Undisputed evi-
dence shows that during the approximately 3-1/2
years preceding the hearing, the quarterly number
of hours of overtime worked at the facility was in-
creased about twentyfold and the quarterly per-
centage of the total number of hours worked
which was composed of overtime was increased
about ninefold. Finally, undisputed evidence shows
that during the approximately 3-1/2 years preced-
ing the hearing, the Employer believed that it
would be more cost-effective for the facility to
Meet production requirements by having existing
employees work overtime rather than by hiring ad-
ditional employees and that at the time of the hear-
ing, the Employer -did not intend to reduce the ex-
isting level of overtime at the facility. Taken to-
gether, the foregoing factors virtually compel us to
conclude that , the Employer is not rea§onably
likely to increase the size of the Hartwell facility's
work force in the near and foreseeable future.
Indeed, if the consistent patterns and the conscious
policies of the past 4 'years are continued, , the Em-
ployer may reduce the size of the facility's. work
5 The contractually specified period during which laid-off employees
must be recalled to avoid being terminated expired for employees Includ-
ed in the 1982 layoff at the latest on 7 December 1983. 34 days after the
close of the hearing and 19 days after the issuance of the Regional Direc-
tor's decision None of the parties has ever offered any evidence or made
any claim, either at the time of the hearing or at any subsequent time,
that . any of the employees Included in the 1982 layoff and not Included in
the 1983 recalls either was likely to be recalled or was in fact recalled by
7 December 1983
force still further.. See, e.g., All-American Distribut-
ing Co., 221 NLRB 980, 981 (1975) (laid-off em-
ployees had no reasonable expectancy of recall be-
cause, inter alia, none of employees laid off in the
preceding year was ever recalled); Sierra Lingerie
Co., 191 NLRB 844, 845 (1971) (laid-off employee
had no reasonable expectancy of recall because,
inter alia, employer phased out one Of its two lines
of production and decided it would be more cost-
effective for the other line to hire already trained
outside employees than to retrain laid-off employ-
ees).
In addition, we place particular emphasis on the
equivocal and uncontradicted record evidence indi-
cating that the Employer has never 'said anything
either to the 71 laid-off employees or to the Inter-
venor suggesting that the employees have a reason-
able expectancy of recall in the near and foresee-
able future. There is no record evidence showing
that any of the Employer's officials ever told any
of the laid-off employees or the Intervenor's offi-
cials that the employees had a- reasonable -expectan-
cy 'of being recalled. On the contrary, as we have
described in detail above, undisputed evidence
shows that Hartwell Plant Personnel Manager
Byrd never told any of the 'laid-off employees or
the Intervenor's officials that the 1982 layoff was
temporary. In addition, undisputed evidence shows
that Michigan headquarters officials issued a press
release at the time of the layoff stating that the
layoff was "a response to the current soft market
demand" and that "industry analysts [were] not
predicting an increase in -demand in the near future
. . . ." Finally, undisputed evidence shows 'that
Bryd told , those of the laid-off employees who
asked him whether they would be called baCk "any
time soon" that the Employer did not have "any
reasonable expectation of calling anyone back' in
the near future . . . ." The fact that all of the Em-
ployer's statements which have speeifically ad-
dressed the question have indicated that the 71
laid-off employees would probably not be recalled
in the near and foreseeable future strongly supports
our conclusion that the employees do not have a
reasonable expectancy of recall. See, e.g., Lennox
Industries; 250 NLRB at 58 (laid-off employees had
no reasonable expectancy of recall because, inter
eniployees- were told that the layoff was "in-
definite" and that they should accept other em-
ployment if offered); Tomadur, Inc., 196 NLRB
706, 707 (1972) (laid-off employees had no reasona-
ble expectancy of recall because, inter alia, supervi-
sor not only told him to find other work but also
gave no estimate as to duration of the layoff and
no specific indication as to when, if ever, he would
be recalled).-
MONROE AUTO EQUIPMENT 107
- Finally, we also emphasize the repeated and un-
equivocal record evidence .indicating that the Em-
ployer itself considered that the 71 laid-off employ-
' ees do not have a reasonable expectancy of recall
in the near and foreseeable future. As we have de-
scribed in detail above, Hartwell Plant Personnel
Manager Bryd testified without direct contradic-
tion that after the 1983 permanent recalls were car-
ried out, company officials concluded that the 71
-laid-off employees did not have a reasonable ex-
pectancy of being recalled. Bryd also testified with-
out direct contradiction that at the time of the
hearing; he continued to consider that the 71, laid-
off employees did not have a reasonable expectan-
cy of recall. Since the foregoing testimony is di-
rectly contradicted by no evidence and is circum-
stantially corroborated by extensive evidence, the
testimony also supports our conclusion that. the 71
laid-off employees do not have a reasonable expect-
ancy of recall. See, e.g., Lennox Industries, supra,
250 NLRB at 58 (laid-off employees had no reason-
able expectancy of recall because, inter alia, em-
ployer indicated that it had no plans to recall em-
ployees in the near future); Allied Products Corp.,
supra, 220 NLRB at 634 (laid-off employees had no
reasonable expectancy of recall because, inter alia,
witness for employer testified that the possibilit3', of
recalling employees was quite re-mote).
In concluding that the 71 employees included in
the 1982 layoff and not included in the 1983 perma-
nent recalls had a reasonable expectancy of recall,
the Regional Director relied on a number of fac-
tors which he interpreted as indicating that the
Hartwell facility's production and manpower re-
quirements had increased significantly since the
1982' layoff and would continue to increase for the
foreseeable future. The factors in question included
a purported "dramatic increase" and "general revi-
talization" in the nation's new-car market in the
months immediately preceding the hearing; a pur-
ported increase in the volume of shock absorbers
and struts shipped from the Hartwell facility
during the 3 months immediately preceding the
' hearing; the Employer's announcement around July
1983 that the facility's daily strut production was
supposed to be increased from 6500 units to .10,000
units; the facility's status as the only strut manufac-
turer in Georgia; the addition of American Motors
as one of the Employer's customers since . the 1982
layoff; the marked increase in the facility's use of
overtime since the 1982 layoff; and the permanent
recall of 53 of the facility's employees since the
1982 layoff. For a number of reasons, we find that
the factors relied on by the Regional Director do
not warrant the conclusion reached by the Region-
al Director.
First, we note that the record contains little spe-
cific evidence concerning either the size or the sig-
nificance of the increase in the Hartwell facility's
production requirements since the 1982 layoff. Al-
though Hartwell Plant Personnel Manager Byrd
acknowledged that he was aware that at some time
Chrysler Corporation experienced a dramatic- in-
crease in sales, the record contains no evidence
either supporting the Regional Director's conclu-
sion that the nation's new-car market as a whole
experienced a "dramatic increase" and "general re-
vitalization" in the months immediately preceding
the hearing or indicating that such a phenomenon,
if it occurred, directly affected the facility's pro-
duction requirements. Compare Lennox Industries,
supra, 250 NLRB at 58 (determination of expectan-
cy of recall should be based on record evidence
rather than "on mere speculation on the future of
the nation's economy"). Although two shipping de-
partment employees testified that the volume of
shock absorbers and struts shipped from the facility
increased noticeably during the 2 months immedi-
ately preceding the hearing, the record shows that
one of the two employees acknowledged that some
of the purported increase may have represented an
increase in parts manufactured elsewhere and
simply shipped from the facility and that a third
shipping department employee testified that the
volume of shock absorbers and struts shipped from
the facility did not increase noticeably during the '2
months preceding the hearing. The only documen-
tary evidence in the record concerning the increase
in the facility's production requirements is a com-
pany chart indicating that in April, June, August,
and October 1983, respectively, the facility's pro-
duction of shock absorbers and struts was 24,900
units, 25,500 units, 24,400 units, and 28,100 units,
and such evidence does not establish either that
production requirements have increased at:a steady
and predictable rate during the recent past or that
production requirements are likely to increase, at
such a rate for the foreseeable future.
Second, we note that the record does not indi-
cate that a majority of the factors relied on by the
Regional Director occurred after the permanent
recall of 53 of the Hartwell facility's employees in
1983. The record evidence in no way suggests that
either the facility's status as the only strut manufac-
turer in Georgia or the addition of American
Motors as one of the Employer's customers was
not a factor until after the 1983 permanent recalls.
On the contrary, the record evidence unequivocal-
ly shows that the announcement around July 1983
that -the facility's daily strut production was sup-
posed to. be increased from 6500 units to 10,000
units occurred before the 1983 permanent recalls
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the increase in the facility's use of over-
time had been plainly present since January 1979.
Hartwell Plant Personnel Manager Byrd testified in
effect that the Employer believed that the 1983
permanent recalls would be sufficient to meet the
increase in the facility's production requirements
for the foreseeable future, and the fact that a
number of the factors relied on by the Regional
Director occurred before the recalls supports such
a brief.
Third, we note that the record indicates that the
increase in the Hartwell facility's production re-
quirements has been accompanied by striking in-
creases both in the productivity of the facility's em-
ployees and in the facility's use of overtime. The
record evidence undisputedly shows that from the
month before the 1982 layoff to the month before
the hearing, the productivity of the facility's em-
ployees was increased by 6-1/2 percent. In addi-
tion, the record evidence undisputedly shows that
from the half year immediately preceding the 1982
layoff to the half year immediately preceding the
hearing, the facility's use of overtime was increased
by about 140 percent. Finally, Hartwell Plant Per-
' sonnel Manager Byrd testified in effect that the
Employer has had a companywide policy of meet-
ing production requirements by using overtime
rather than by hiring additional employees for the
past 4 years and that the Employer does not have
any intention of reducing the Hartwell facility's use
of overtime for the foreseeable future. All of the
foregoing factors virtually compel us to conclude
that the striking increases in the productivity of the
facility's employees and in the facility's use of
overtime, coupled with the permanent recall of 53
of the facility's employees, 'are likely to be suffi-
cient to meet the increase in the facility's produc-
tion requirements for the foreseeable future.
The Regional Director found that the Employ-
er's use of overtime was not likely to meet the in-
crease in the Hartwell facility's production require-
ments for the foreseeable future in essence because
the continued payment to employees of time-and-a-
half and double-time pay would eventually prove
too expensive and the continued use of employees
to work many hours of overtime would eventually
prove too exhausting. The Regional Director's- rea-
soning, however, ignores the fact that the record
indicates that the Employer does not have to pay
existing employees who work overtime the 35-per-
cent fringe benefits it would have to pay additional
employees whom it might hire and that a sizeable
segment of the facility's existing employees have
not been working many hours of overtime and so
are in a position to take over the overtime burden
from employees who have been working such
overtime and might not be able to continue to do
so. More fundamentally, the Regional Director's
reasoning in effect substitutes the Regional Direc-
tor's business judgment for the Employer's. The
question before us is not what steps we or the Re-
gional Director believe the Employer ought to take
to meet the facility's production requirements, but
what steps the Employer, in the legitimate exercise
of its own business expertise and experience, is in
fact likely to take. The undisputed record evidence
requires us to conclude that the step the Employer
is likely to take is to continue to apply its long
maintained and consistently applied companywide
policy of meeting production requirements _ by
having existing employees work overtime rather
than by hiring additional employees.
In contending that the 71 laid-off employees
have a reasonable expectancy of recall, the Interve-
nor, in addition to relying on the factors relied on
by the Regional Director, relies on the fact that the
Empoyer has never explicitly told the employees
that they do not have a reasonable expectancy of
recall. As we have already emphasized, however,
the undisputed record evidence shows that the Em-
ployer issued a press release at the time of the 1982
layoff stating that the Hartwell facility did not face
an increase in production requirements "in the near•
future" and that Hartwell Plant Personnel Manager
Byrd stated to those employees who asked him
whether they would be called back "any time
soon" that the facility did not have "any reasonable
expection of calling anyone back in the near future
. . . ." The foregoing statements unmistakably in-
dicated- to the employees that they did not have a
reasonable expectancy of being recalled in the near
and foreseeable future, and the record evidence
does not show that the Employer has ever made
any statement to any of the employees indicating
otherwise.
In addition, the Intervenor relies on the fact that
the Hartwell facility has a policy of meeting needs
for additional employees by rehiring former em-
ployees rather than by hiring new employees. The
question, however, is not whether the facility is
likely to meet a need for additional employees by
rehiring the 71 laid-off employees, but whether the
facility is likely to face a need for additional em-
ployees at all As we have already explained, the
undisputed record evidence requires us to conclude
that the facility is not likely to face a need for addi-
tional employees in the near and foreseeable future.
Finally, the Intervenor relies on the fact that the
Employer has subcontracted out some of the
Hartwell facility's work to other employers since
the 1982 layoff. The fact that the Employer has
subcontracted out some of the facility's work, how-
MONROE AUTO EQUIPMENT 109
ever, in no way indicates that the Employer is
likely to recall the 71 laid-off employees in the near
and foreseeable future. On the contrary, the fact in-
dicates, as do many of the other facts established
by the record, that the Employer has followed a
conscious policy of reducing the size of the facili-
ty's work force in the past and is likely to continue
to follow such a policy in the future.
The Intervenor repeatedly insinuates that the
Hartwell facility's use of overtime and the facility's
subcontracting out of work are steps deliberately
designed .to prevent the 71 laid-off employees from
being eligible to vote in the decertification election.
The record, however, contains no evidence sug-
gesting the steps in question were taken for the
purpose of achieving any impermissible objective
related to the election or indicating that the Inter-
venor or any other party has ever filed any charges
with the Regional Office alleging that :the steps
were taken for such a purpose. On the contrary, as
we have already explained, the record contains ex-
tensive evidence indicating that the steps in ques-
tion were taken as part of a conscious policy to
reduce the size of the facility's work force which
the Employer clearly adopted years before the
filing of the decertification petition and consistently
followed thereafer.6
We have been administratively advised that, de-
spite the Board's grant of review in this proceed-
ing, a decertification election was conducted by the•
Regional Director on -31 January 1984. 7 We agree
with our colleague that the Regional Director
breached Section ' 102.6. 7(b) of the Board's Rules
and Regulations by failing to impound the ballots.
However, no party has placed the issue of the va-
lidity of the election results before us at this time.
Accordingly we remand the case to the Regional
Director for further processing consistent with this
decision.
6 In its motion to reopen the record, the-Petitioner requests us to admit
additional evidence consisting of a form letter requesting rehire which
the Petitioner's motion asserts was distributed by the Intervenor to all of
the 71, laid-off employees and was returned to the Hartwell facility's
plant manager by fewer than 10 of the laid-off employees The assertions
in the Petitioner's motion regarding the form letter, however, are not
supported by any evidence or offer of evidence other than a single un-
- signed and undated copy of the letter itself, and therefore constitute noth-
ing more than unsubstantiated and unsworn representations by the -Peti-
tioner's attorney Accordingly, we deny the Petitioner's motion to reopen
the record
7 Inasmuch as the Board was administratively advised that the Region-
al Director failed to impound the ballots in accordance with Sec
102 67(b) of the Board's Rules, Member Dennis would direct a new elec-
tion