Northwest Graphics, Inc. and Local 6-505M,
Graphic Communications International
September 30, 2004
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Walsh
On July 10, 2003, Administrative Law Judge Margaret M. Kern issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed cross-exceptions, a supporting brief, and an answering brief to the Respondent’s exceptions.
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 decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order as modified and set forth in full below.
The General Counsel excepts to the judge’s failure to require the Respondent’s highest-ranking official to read the notice to the employees. Contrary to the General Counsel, we find that the unfair labor practices that have been committed in this case do not warrant this extraordinary measure. Compare, Federated Logistics & Operations, 340 NLRB 255 (2003) (Board ordered extraordinary remedies because the respondent’s unfair labor practices were numerous, pervasive, many of them were committed by high-level management officials, and had a chilling effect on its employees’ rights.).
ORDER
The National Labor Relations Board orders that the
Respondent, Northwest Graphics, Inc.,
1. Cease and desist from
(a) Refusing to meet and bargain with Local 6–505M, Graphic Communications International Union, AFL–CIO as the exclusive representative of its employees in the following appropriate unit:
All production and maintenance employees employed by Respondent at its 940 Harmsted Court, St. Charles, Missouri facility, excluding office clerical and professional employees, guards, and supervisors as defined in the Act.
(b) Unilaterally implementing or discontinuing the evening shift, unilaterally paying and then ceasing to pay a shift differential to employees, or unilaterally changing any other term or condition of employment.
(c) Engaging in direct dealing with unit employees over terms and conditions of employment.
(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with the
(b) On request, rescind the operation of the evening shift and, on request, rescind the payment of a shift differential to employees.
(c) Within 14 days after service by the Region, post at
its facility in
(d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist any union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not refuse to meet and bargain with Local 6-505M, Graphic Communications International Union, AFL–CIO, as the exclusive representative of our employees in the following appropriate unit:
All production and maintenance employees employed at our
We will not unilaterally implement or discontinue the evening shift, unilaterally pay you or stop paying you a shift differential, or unilaterally change any other term or condition of your employment, without notice to and affording the Union as the exclusive collective-bargaining representative of our unit employees an opportunity to negotiate and bargain about such matters.
We will not deal directly with you regarding your wages and work hours on the evening shift, or any other term or condition of your employment.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will, on request, bargain with Local 6–505M, Graphic Communications International Union, AFL–CIO, and put in writing and sign any agreement reached on terms and conditions of employment for you.
We will, on request, rescind the operation of the evening shift and we will, on request, rescind the payment to you of a shift differential.
Northwest Graphics, Inc.
Sharon Steckler, Esq., for the General Counsel.
Ralph Bruns, for the Charging Party.
DECISION
Statement of the Case
Margaret M. Kern,
Administrative Law Judge. This case was tried before me in
It is alleged that on four occasions between May and
August, Respondent unilaterally implemented and then discontinued an evening
shift, dealt directly with employees in assigning them to that shift, and then paid those employees a shift
differential. It is further alleged that in September, Respondent dealt directly
with an employee who was working on the day shift and unilaterally changed that
employees’ hours. These acts are alleged to have occurred at a time when the parties
were engaged in negotiations for an initial collective-bargaining agreement.
Procedural Matters
A. Amendment of the Complaint
The complaint originally alleged Respondent engaged in
unlawful conduct in June, July, and August. At the hearing, counsel for the General
Counsel moved to amend the complaint to add additional allegations of direct dealing with employees on
May 8, and unilaterally implementing the evening shift on May 9. Counsel for
Respondent objected to the amendment on the ground that he did not have
previous notice and did not have sufficient time to address the new
allegations. I overruled the objection and allowed the amendment. The subject
matter of the amendment was closely related to the allegations of the complaint.
Moreover, I advised counsel for
Respondent that he could request an adjournment, but he declined. Given these
circumstances, I adhere to my ruling allowing the amendment. Folsom Ready
Mix, Inc., 338 NLRB 1172 fn. 1 (2003).
B. Respondent’s First Affirmative Defense
In its answer, Respondent raised, as an affirmative defense, that counsel for the General Counsel displayed overt prejudice toward Respondent in the course of the proceedings leading up to this hearing, and in other proceedings involving Respondent. Respondent averred this case was therefore tainted and should be dismissed. Counsel for the General Counsel filed a motion to strike this affirmative defense and Respondent filed a response in opposition. I reserved decision on the motion until the close of the case. No evidence was adduced at the hearing in support of this affirmative defense and the motion to strike is therefore granted.
C. Filing of Briefs
The date for the filing of briefs was November 22. Respondent filed a certificate of service stating that its brief was deposited with Federal Express on November 22, and a copy of the brief was faxed that same day to the Division of Judges. Citing the Board’s Rules and Regulations, Section 102.111, counsel for the General Counsel filed a motion to reject the Respondent’s brief on the ground that it was untimely filed. Respondent contends that the brief was timely filed under the provisions of Section 102.112.
Section 102.112 governs the service of documents and specifically references the provisions of Section 102.111 for filing requirements. Section 102.111(b) requires that in order to be timely filed a brief must be postmarked no later than the day before the due date. Postmarking includes the deposit of the document with a delivery service. Section 102.114(g) provides that facsimile transmission of a brief will not be accepted for filing.
Respondent’s brief was untimely filed as it was not deposited with Federal Express until November 22, the date it was due, and Respondent’s facsimile transmission that same day is not accepted. Counsel for the General Counsel’s motion to reject Respondent’s brief is granted, and the brief has not been considered.
D. Proceedings in Cases 14–CA–25998,
14–CA–26121,
14–CA–16156, and 14–CA–26564
On December 10 and 11, 2001, a hearing was held before Administrative Law Judge Robert Pulcini in Cases 14–CA–25998, 14–CA–26121, 14–CA–26156, and 14–CA–26564, involving issues similar to those in this case. Judge Pulcini issued a decision on June 4, and exceptions to that decision are pending review before the Board. Judge Pulcini’s findings are not binding authority in this case, St. Vincent Medical Center, 338 NLRB 888 (2003), and I have not considered them. The factual findings herein are based solely on the evidence adduced before me.
Findings of Fact
i. jurisdiction
Respondent admits, and I find, it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
ii. labor organization status
Respondent admits, and I find, the
iii. alleged unfair labor practices
A. Respondent’s Business and Collective-Bargaining History
Respondent is engaged in the business of printing medical
journal reprints in
On June 28, 1999, the
All production and maintenance employees employed by Respondent at its 940 Harmsted Court, St. Charles, Missouri facility, excluding office clerical and professional employees, guards, and supervisors as defined in the Act.
Between the time of the Union’s certification and the
hearing in this case, the parties conducted 22 bargaining sessions without
reaching full agreement on the terms of an initial contract.2 The principal negotiators for
Respondent were Roberts and Attorney Lawrence Kaplan. The principal negotiators
for the
B. Past Practice Re: Evening Shift
C. November 1, 2001 Draft Agreement
On October 31, 2001, the parties held their 18th bargaining session. During the session, Attorney Kaplan announced the parties were at impasse. Bruns immediately objected and indicated he believed there was ongoing movement in their discussions.
On November 1, 2001, the parties tentatively agreed to
many of the terms contained in a 17-page draft agreement.4 With respect to the evening shift, the parties tentatively agreed, in section 6.2, that
“[t]he premium for the first night shift shall be fifty cents (50 cents) per
hour and shall be added to and become part of the employee’s regular hourly
wage.” They further agreed, in section 6.6, that “[i]n the event of a shift
change employees will be given five (5) working days advance notice of same.”
Six issues remained outstanding as of November 1, 2001:
wages, overtime rates for Sundays and holidays, retirement benefits, performance
of unit work by supervisors, union security, and dues checkoff. With respect to wages, the
The 19th bargaining session was held on February 21. The
parties’ reiterated that the November 1, 2001 draft agreement was the working
document for negotiations, and they reviewed the six open issues. A mediator
from the Federal Mediation and Conciliation Service was present, and the discussions
that day centered on pension, retirement, and profit-sharing issues. According
to Bruns’ notes, the Union proposed an employer contribution of 4.75 percent of
straight time wages to the
D. May 9 Implementation of Evening Shift
By letter dated
May 7, Roberts advised Bruns as follows:
Due to an increase in business, we will be starting a 2nd shift operation. We have just hired the first individual to operate our MOZP [printing press]. If you have any questions or require more information, please contact me.
Joe Jones will start on 5/8/02 pending his physical and drug screen. His rate of pay will be $16.00 per hour; it will increase to $16.50 per hour when he begins to work on the 2nd shift (1:15 pm–9:45 pm). After 3 months of service, Joe will receive an evaluation and upon a favorable evaluation, his pay will increase to $17.50 per hour.
We intend to hire one more person for the 2nd shift and change one current employee’s hours so we will have a total of 3 people on this shift. We will consider volunteers from current employees wanting to change to the 2nd shift, however, we will decide who will make this change based on the best interest of the company.
Roberts hired Joe Jones on May 7. Jones worked the day shift on May 8. On May 9, he worked the evening shift and was paid a 50–cent-an-hour differential. On May 10, he returned to the day shift.
E. May 21 Bargaining Session
The 20th bargaining session was held on May 21, again in
the offices of the FMCS mediator. According to Bruns and Napoli, three topics
were discussed: the May 9 implementation of the evening shift, wages, and a
pending request for information made by the
On the subject of the May 9 implementation of the evening
shift, Bruns stated that he would not file an unfair labor practice charge in
this particular instance, but he was not waiving the
F. June 18 Implementation of Evening Shift
On or before June 17, Smith and Recker spoke directly with Employee Shayne Shelburne about working an evening shift and paying him a shift differential of 50-cent-an-hour.
On Monday, June 17, at 3:27 p.m., Roberts faxed the
The company is going through a busy time and in order to
meet delivery requirements will be running a shift starting at 1:00 pm and
ending at 9:00 pm. Joe
Jones and Shayne Shelburne will be working this shift for a temporary period
for what we believe to be not more than two weeks. They will be receiving a 50¢
an hour premium for working this shift.
I would appreciate you contacting us in writing indicating your position because this occurs frequently throughout the year. We are available to meet to discuss this upon request; please contact Larry Kaplan.
Without further notification to the
By letter dated June 19, Roberts responded to Bruns’ request to bargain:
I received notification from one of our customers on
Friday, 6/14/02 around 4:00 pm, that they had work for us that needed to be
delivered on 6/21/02. This work encompassed approximately 56 hours of press
time. Please refer to my letter dated 5/7/02 in which the hiring of Joe Jones was predicated upon
him working this modified shift. After hiring Joe, work slowed down and we
decided to have Joe stay with us working 8:00 am–4:30 pm because we know from
experience that we would need him to work these modified hours in the future.
I am hoping that we can come to some resolution of this matter
that will allow us to continue this practice without the
Joe & Shayne have worked these modified hours on 6/18/02 and in all likelihood this will continue for one to two weeks. Please let Larry know when [the FMCS mediator] wants to meet so we can schedule a negotiation.
On June 27, at 9:23 a.m., Roberts faxed Bruns the following letter:
We informed you in a previous letter dated 6/19/02 of our intent to meet and negotiate issues of an increase in pay for Tom Watkins and also the working hours for Shayne Shelburne and Joe Jones. We are renewing our request to meet and negotiate these issues.
Joe and Shayne are currently scheduled to remain working from 1:00 pm to 9:30 pm as outlined in my letter dated 6/17/02. These modified hours will continue as long as we need Joe to operate the MOZP.
Please contact Larry Kaplan to schedule a negotiation.
On July 2, Bruns faxed a reply to Roberts, stating in relevant part:
In the union’s June 18, 2002, letter in response to the company’s
letter dated June 17, 2002, the
The
The company also indicates that they need this flexibility
to begin and end shifts as needed. The
On July 8, Roberts wrote to Bruns:
We informed you in a previous letter dated 6/17/02 of Joe
Jones and Shayne Shelburne working hours being modified for production reasons.
We are scheduled to meet to
negotiate this issue on 7/10/02.
Joe Jones has requested to take 7/11/02 and 7/12/02 off
work. We are allowing Joe to take this time off, without pay. Shayne’s hours
will change to 8:00 am to 4:30
pm for these two days. Upon Joe returning to work on 7/15/02, he and Shayne
will continue the hours of 1:00 pm to 9:30 pm.
The
next day, July 9, Roberts again wrote to Bruns in relevant part:
Due to a quick increase in business, Joe will not be
taking off [July 11 and 12], therefore Joe & Shayne will continue their
hours of 1:00 pm to 9:30 pm. This
cooperative relationship between the employees and the company is necessary to maintain a high level of
service to our customers. We will discuss this further at our negotiation
scheduled for tomorrow.
G. July 10 Bargaining Session
The 21st bargaining session was held on July 10, again in the offices of the FMCS mediator. According to Bruns’ notes, Kaplan began by stating the Company did not want a “brouhaha” ever time they wanted to change something, and that the Company believed that it was within its rights to start and end the evening shift. Roberts then presented a document entitled “Proposed Communication and Bargaining Methods.” Roberts testified that there had been no concessions by either side in quite a while, and that the document was an attempt to layout a method for the Company to carry on its business in the interim until the parties were able to reach a signed agreement.
The first proposal dealt with shifts, and stated as follows:
It is understood that Northwest Graphics (NW) must
institute and discontinue shifts
depending on workload. In this regard NW agrees:
(a) A fifty-cent premium will be paid on all second shift
hours. (It is considered unlikely that there will be a third shift and in that
event the parties will negotiate rates, terms and conditions).
(b) NW will ask for volunteers to work the second shift. In the event there are insufficient volunteers, NW will assign employees by reverse seniority provided they have had sufficient experience to do the work required.
(c) NW will notify the [Union] before a second shift is
instituted unless it is an emergency
and inform the [
(d) NW will notify the [
The second proposal concerned new hires. Respondent proposed
that it would notify the Union
before it hired new employees, except in the case of an emergency, and would
give the
The third proposal concerned wage increases. Respondent
stated that it would perform an annual employee review and would increase wages
depending on the contribution, effort, and increase in skill and responsibility levels of each employee.
The fourth proposal dealt with bonuses. Respondent proposed
that it would notify the
In the discussion that followed the presentation of these
proposals, Roberts distributed a chart showing production statistics on the
MOZP presses from January to June, and demonstrating the volatility of customer
demands. The presentation of the documents and the resulting face-to-face discussion between the parties
lasted approximately 30 minutes at which time Bruns and the members of his
negotiating committee left the room to caucus with the assistance of the
mediator. Approximately 35 minutes later, Attorney Kaplan entered the room in
which the Union representatives were caucusing and asked if they were ready.
When Bruns stated they were not yet ready to respond to the proposals, Kaplan
became irate, shoved a piece of furniture against the wall, and indicated the
meeting was over. Kaplan and Roberts left the building and the session ended.
In two letters, both dated July 16, Bruns reviewed the
events of July 10, and advised Roberts “the
On July 25, Respondent discontinued the evening shift that
had been operated since June 18, and discontinued payment of the shift
differential to the employees that had worked that shift. This was done without prior notification to the
H. August 12 Implementation of Evening Shift
On August 12, Respondent implemented the evening shift,
with an accompanying 50 cents wage differential, without prior notification to
the
In a letter dated August 29, Bruns wrote that it had come
to his attention that Respondent had again implemented the evening shift and
shift differential. He advised Roberts that the
1. Past practice
Employees on the day shift have traditionally started work
at either 5, 7, or 8 a.m. Roberts testified that since 1991, the Company has
had a practice of accommodating employee requests for adjustments to their work
hours if the requests did not affect production needs. He explained:
A. If an employee comes up with a change in work schedule, if we can accommodate them inside the constraints of our production environment, then we do it. If––
Q. Okay. Is that what you did from ‘91 to ‘99 until the
A. Yes, sir.
Q. Has that changed from ‘99 to present?
A. No, it has not changed.65
By way of example, Roberts testified that one employee,
Rena Buford, requests schedule accommodations on a regular basis, two or three
times every month. The day before the hearing, Roberts granted Buford’s request to start work at
6:30 a.m. so she could make her carpool.
2. Change in hours for employee Boudreaux
On Friday, September 13, employee Mark Boudreaux asked Roberts to change his starting time from 5 to 6:30 a.m. so that he could take his child to daycare. Roberts granted Boudreaux’s request effective 6:30 a.m. on Monday, September 16. At 11:49 a.m. on September 16, Roberts faxed a copy of Boudreaux’s request to Bruns and advised him that the request had been granted.
On September 19, Bruns notified Respondent by letter that
the change in Boudreaux’s hours constituted direct dealing and that Respondent
had not provided the
J. October 10 Bargaining Session
The 22nd bargaining session, and the last session held
before this hearing, was on October 10. Respondent adhered to its position that
it had the right to institute and eliminate the evening shift as customer demands dictated. The
The
parties discussed the change in hours granted to employee Boudreaux. Bruns
complained that the
The parties discussed the existing practice for employee performance
appraisals and how wage
increases were tied to those appraisals.
The parties discussed the management-rights’ clause language
that had been tentatively agreed to the draft agreement. Bruns said that the
According to
During the course of this session, Attorney Kaplan stated
he believed the parties were at impasse. Bruns disagreed, pointing out that the
Q. Ralph, as you just testified, I asked you last week if
the
A. That is correct.
Q. And I also ask you the converse question, whether the Company had made any concessions on the Union’s proposal on any subject based on this–from this document to the present and you said, no, is that correct?
A. That is correct. Bruns later testified that even though he made that statement to Kaplan on October 10, he no longer agreed with it:
Q. Mr. Bruns, why are you not at impasse?
A. We have offered proposals to the Company with
outstanding information requests and at no time that I can recall has there not
been charges pending against
this Company.
Q. On July 10th, 2002, at the negotiation, what opportunity were you given to respond to the Employer’s new proposal?
A. Virtually none.
According to Bruns’ notes, Bruns stated the wanted to continue
to discuss all open issues. At the close of the session, Attorney Kaplan noted
that this unfair labor practice hearing was scheduled to begin on October 18, and he said the parties
needed to schedule time for negotiations after the trial.
At the hearing,
iv. analysis
A. The Evening Shift
1. Past practice
Respondent defends its implementation and discontinuation
of the evening shift on the ground that it had an established past practice of
operating that shift on an intermittent, as needed basis, and that the continuation of that past practice from
May to August 2002 was not a unilateral change. The evidence does not support
Respondent’s position.
Q. Okay. And then after that stopped, after that permanent second shift stopped, did the Company institute and terminate second shifts as business required through the present?
A. Yes, right after the . . . about the time of June of ‘99.
Q. And to the present?
A. To the present, yeah. It . . . after the
I do not view
In Roberts’ letter of May 7, he stated, “[W]e will be
starting a 2nd shift operation.
We have just hired the first
individual.” This language is more suggestive of the commencement of a new
operation than the continuation of a past practice. There is no other evidence
in this record regarding the operation of an evening
shift during the period 1999 to 2002. I therefore conclude the evidence does
not establish that Respondent had an established past practice of operating an
evening shift on an intermittent basis.
2. Overall impasse
An employer violates the duty to bargain if, when negotiations
are in progress, it unilaterally institutes changes in existing terms and
conditions of employment. On the other hand, after bargaining to an impasse, that is, after good-faith
negotiations have exhausted the prospects of concluding an agreement, an
employer does not violate the Act by making unilateral changes that are
reasonably comprehended within its preimpasse proposals. Whether a bargaining
impasse exists is a matter of judgment. The bargaining history, the good faith
of the parties in negotiations, the length of the negotiations, the importance
of the issue or issues as to which there is disagreement, and the contemporaneous
understanding of the parties as to the state of negotiations are all relevant
factors to be considered in deciding whether an impasse in bargaining existed. Taft
Broadcasting Co., 163 NLRB 475 (1967), enfd. sub nom. Television Artists
AFTRA v. NLRB , 395 F.2d 622 (D.C. Cir. 1968). For impasse to occur,
neither party must be willing to compromise, Huck Mfg. Co. v. NLRB, 693
F.2d 1176, 1186 (5th Cir. 1982), and both parties must
believe that they are at the end of their rope. PRC Recording Co., 280
NLRB 615, 635 (1986), enfd. 836 F.2d 289 (7th Cir.
1987). It is an issue of futility, and not of some lesser level of frustration,
discouragement, or apparent gamesmanship. Grinnell Fire Protection Systems
Co., 328 NLRB 585 (1999), enfd. 236 F.3d 187 (4th Cir. 2000), cert. denied 534 U.S. 818 (2001). Because
impasse is only a temporary deadlock or hiatus, and any change in circumstance
that creates a new possibility of fruitful discussion breaks an impasse, the
analysis necessarily focuses on the status of negotiations at the time the
unilateral change was made. Jano Graphics, Inc., 339
NLRB 251 (2003). Impasse
is a defense to the charge of unilateral change and must be proved by the party
asserting the defense, North Star Steel Co., 305 NLRB 45 (1991), enfd.
974 F.2d 68 (8th Cir. 1992), which in this instance
is Respondent.
The evidence in this case begins with the 18th bargaining
session held on October 31, 2001, 2 years and 2 months after the commencement
of bargaining. At this session, Attorney Kaplan declared the parties were at impasse. I credit
Bruns’ uncontradicted testimony that he immediately objected to the
characterization, and stated he believed progress was being made. Bruns’
testimony is fully supported by the fact that the very next day, the parties
agreed to many of the terms contained in a 17-page draft agreement.
After November 1, 2001, six issues remained open: wages,
overtime rates for Sundays and holidays, retirement benefits, performance of
unit work by supervisors, union security, and dues checkoff. At the 19th bargaining session held on
February 21, Attorney Kaplan stated the Company would not agree to participate
in the
The 20th bargaining session was held on May 21. At this
session, Roberts told the
Respondent’s second implementation of the evening shift
lasted from June 18 to July 25. In that period of time, on four separate
occasions, Respondent stated its willingness to bargain over the evening shift issue. In his letter of June 19,
Roberts wrote that he hoped to come to a resolution of evening shift issue and
he asked Bruns to contact Kaplan to schedule the next bargaining session. In
his letter of June 27, Roberts requested to meet and bargain over the working
hours for the two employees working the evening shift and again asked Bruns to
contact Kaplan to schedule a negotiation session. In his letter of July 8,
Roberts told Bruns that they would discuss the hours of the two employees
working the evening shift at the next scheduled session on July 10. Finally, in his letter of July 9, Roberts
stated that they would be discussing the evening shift with the
On July 10, Roberts submitted a four-point written proposal
regarding how he would like to operate the evening shift, and he also
distributed production statistics in an effort to persuade the
It should also be pointed out that earlier in the session
on July 10, progress was demonstrated on other issues. Whereas Respondent had
previously taken the position that it would notify the Union of new hires only after the fact, on July
10, Respondent submitted a proposal stating that it would notify the Union
before it hired new employees and give the Union an opportunity to recommend
individuals for openings except in emergency situations. In addition, Respondent for the first time
made a proposal regarding bonuses, indicating that it would agree to notify the
Union before granting bonuses and give the
Given Respondent’s repeated statements of willingness to
bargain over the evening shift, its four-point proposal on the issue submitted
at the July 10 bargaining session, the Union’s demonstrated willingness to study that proposal, and the progress
made on the issues of new hires and bonuses, I find the parties were not at
impasse as of the close of the bargaining session on July 10. In the days
following that session, the
The relevant time frame for assessment of whether or not
an impasse exists is at the time the alleged unilateral change is made, and I
have concluded that there was no legally cognizable overall impasse on May 9, June 18, July 25, or on
August 12, the dates of Respondent’s implementation and discontinuation of the
evening shift. As such, Attorney Kaplan’s declaration of impasse on October 10,
is irrelevant. Even if the evidence established that the parties were at
impasse on October 10, it is irrelevant consideration since the alleged
unilateral changes had been made months before.
3. The issue of economic exigency
a. Applicable law
When, as here, the parties are engaged in negotiations,
the Board’s Rules regarding the obligation of an employer to refrain from
making unilateral changes in terms and conditions of employment are well established. The general rule is that absent
overall impasse, an employer must refrain from implementation of any unilateral
change. The Board has, however, recognized two limited exceptions to the
general rule: when the
The Board has
recognized two levels of economic exigency in this context. In the most severe
circumstance, extraordinary events which are unforeseen and which have a major
economic effect requiring immediate action may serve to entirely excuse an
employer’s obligation to bargain. In such a case, the employer has
the heavy burden of demonstrating the existence of circumstances which required
implementation at the time the action was taken, or an economic business
emergency that required prompt action. There are, however, other economic exigencies,
although not sufficiently compelling to excuse bargaining altogether, that may
constitute exigent circumstances. In this second situation, an employer
satisfies its obligation to bargain by providing the
b. Existence of emergency circumstances
Respondent has failed to demonstrate the existence of an
economic emergency of the kind that would have entirely excused its obligation
to bargain. At the July 10 bargaining session, Roberts presented a graph showing the volatility of customer
demand during the first 6 months of 2002. The graph shows dramatic fluctuations
in the volume of Respondent’s business throughout the 6-month period, and
supports Respondent’s position, which it articulated repeatedly in negotiations,
that it has an ongoing business need to utilize an evening shift when warranted
by customer demand. The graph also clearly demonstrates that the peaks and
valleys of customers are inherently characteristic of Respondent’s business.
Since the need for production capacity on short notice is an ongoing, foreseeable
aspect of Respondent’s business, it is by definition not an emergency situation
of the type contemplated in RBE Electronics, supra. I therefore
find Respondent was not, at any time, excused from its bargaining obligation
when it implemented and discontinued the evening shift in May, June, July, and
August.
c. Existence of economic exigency
The complaint alleges five instances when Respondent implemented
and discontinued the evening shift, and the issue is whether, at each point in
time, there existed an economic exigency and if so, whether Respondent provided the
(1) The May 9 implementation and discontinuation
In the first 6 months of 2002, the size of Respondent’s
pending workload ranged from 61,988 pages to 1,249,118 pages. The mean or
average workload was 403,949 pages, and the median workload was 327,599. On May 3, the workload was
66,899 pages, and on May 10, the workload was 183,663. Thus, on both these
dates, which bracket Respondent’s first implementation of the evening shift,
Respondent’s workload fell far below the average and far below the median.
Indeed, the graph shows that this period was one of Respondent’s slowest. I conclude
from this that there were no exigent circumstances in existence on May 9, and
Respondent’s implementation and discontinuation of the evening shift on that
date, and its payment of a shift differential to employees on that date, constituted
unlawful unilateral changes in violation of Section 8(a)(5) and (1) of the Act.
(2) The June 18 implementation
The second implementation of the evening shift was on June
18. Respondent’s statistics show that on June 14, the workload was 603,085
pages, and on June 21, it was 1,128,913 pages, well above the mean and median
workloads. Roberts testified that on Friday, June 14, he received an unexpected customer order for over 200,000
pages to be delivered by Friday, June 21, and a review of Respondent’s production
statistics shows this was an unusually brief turnaround period. I therefore
find this was an economic exigency created by customer demand over which
Roberts had no control.6 The question, then, is whether Respondent provided adequate
notice to the
Respondent received the customer order at 4 p.m. on a Friday
afternoon. On the following Monday, at 3:27 p.m. Roberts faxed a letter to the
(3) The July 25 discontinuation
By July 25, the economic exigency that existed on June 18
had long been resolved. Respondent’s
discontinuation of the evening shift on that date, and its discontinuation of
the payment of the shift
differential to employees, were unlawful unilateral changes in violation of
Section 8(a)(5) and (1) of the Act.
(4) The August 12 implementation
No evidence was adduced regarding the economic circumstances
that have existed since Respondent’s implementation of the evening shift on
August 12. I therefore find Respondent’s
implementation of the evening shift on August 12, and its continued operation
of that shift since that date, violates Section 8(a)(5) and (1) of the Act.
4. The waiver issue
Respondent argues that the
B. The Allegations of Direct Dealing
The evidence establishes two instances of Respondent’s
dealing directly with employees. The first was when Respondent hired employee
Jones on May 7, and dealt directly with him in assigning him to the evening shift and paying him the
shift differential. The second instance was in June when two of Respondent’s
supervisors spoke directly to employee Shelburne about his assignment to the evening
shift and the payment to him of the shift differential.
It is well settled that the Act requires an employer to
meet and bargain exclusively with the bargaining representative of its
employees, and that an employer who deals directly with its unionized employees or with any
representative other than the designated bargaining agent regarding terms and
conditions of employment violates Section 8(a)(5) and (1). Allied–Signal, 307
NLRB 752, 753 (1992). Respondent had an obligation to deal with the
C. The Day Shift
Roberts testified that since 1991, Respondent has had a
past practice of dealing directly with employees when they request changes in
their work hours for personal reasons, and of accommodating those requests
whenever possible. This testimony stands uncontradicted on this record. Bruns testified he
had no knowledge on the subject, and none of the three employees who testified
were asked about it, including
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. The following unit of employees is appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees employed by Respondent at its 940 Harmsted Court, St. Charles, Missouri facility, excluding office clerical and professional employees, guards, and supervisors as defined in the Act.
4. The
5. On or about May 7, 2002, Respondent violated Section
8(a)(5) and (1) of the Act by dealing directly with an employee, who was represented
by the
6. On or about May 9, 2002, Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing and then discontinuing an evening shift, and by unilaterally paying and then ceasing to pay a shift differential to employees.
7. In June 2002, Respondent violated Section 8(a)(5) and
(1) of the Act by dealing directly with an employee, who was represented by the
8. From on or about June 18 to July 25, 2002, Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing and operating an evening shift, and by unilaterally paying employees a shift differential.
9. On or about July 25, Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally discontinuing the evening shift, and by unilaterally ceasing to pay employees a shift differential.
10. Since on or about August 12, 2002, Respondent has violated Section 8(a)(5) and (1) of the Act by implementing and operating an evening shift, and by unilaterally paying employees a shift differential.
11. Respondent did not violate the Act when it accommodated an employee request for a change in his work hours on the day shift.
12. Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist and to take
certain affirmative action designed to effectuate the policies of the Act.
In addition to traditional remedial relief, the General
Counsel requests three additional remedies: costs associated with this
litigation including attorneys’ fees, a requirement that Respondent’s highest ranking
official read the Board’s notice to employees, and a broad cease-and-desist
order. None of these remedies are warranted.
The General Counsel’s argues that “by failing to pay heed
to the [ALJ’s] findings in the previously litigated case” Respondent is responsible
for the costs of litigating this case. This is an argument that is as unusual as it is merit less. The
parties filed exceptions to Judge Pulcini’s decision and those exceptions are
pending before the Board. The findings of an administrative law judge that are
pending exceptions before the Board are not binding authority as the General
Counsel well knows. St. Vincent Medical Center, 338 NLRB 888 (2003), and
the case cited by the General Counsel, which deals with an employer’s repeated
failure to comply with settlement agreements, is entirely inapposite.
The General Counsel has repeatedly made the claim that Respondent’s
allegation of misconduct on the part of counsel for the General Counsel was
“frivolous” and by merely interposing
the defense, Respondent should be sanctioned. As stated previously, the reason
for my dismissing Respondent’s first affirmative defense was because no
evidence was adduced at the hearing in support of the defense. It was not
dismissed because it was frivolous on its face. To the contrary, allegations of
Board agent misconduct, although not substantiated in this case, are serious
matters.
Nor is there any basis for a broad order in this case, or
for the extraordinary remedy of compelling Respondent’s highest ranking
official to read the notice to employees. The General Counsel argues that Respondent has a “flippant approach to
its responsibilities under the Act.”
This is not a basis for a broad order or for extraordinary relief. Respondent has never been found by the Board to have violated the Act, nor has Respondent ever failed to abide by the terms of a settlement agreement. The Board’s traditional remedies are appropriate and adequate. Therefore, Respondent, on request, must rescind the operation of the evening shift and must, on request, rescind the payment of the shift differential to employees.
[Recommended Order omitted from publication.]
1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.
We adopt the judge’s finding that the Respondent violated Sec. 8(a)(5) of the Act by directly dealing with employee Shayne Shelburne about working a newly created shift schedule with a 50-cent wage differential. In view of this finding, we find it unnecessary to pass on the judge’s additional finding that the Respondent violated Sec. 8(a)(5) by similarly engaging in direct dealing with employee Joe Jones, because this finding would be cumulative and would not affect the remedy.
We reject
Chairman Battista’s assertion that finding both unilateral-change and
direct-dealing violations is improper “piling on.” The violations are distinct in kind: one
involves bypassing the Union and the other involves not only bypassing the
Contrary to
his colleagues, Chairman Battista would not find that the Respondent’s alleged
direct dealing with either Shelburne or Jones separately violates Sec.
8(a)(5). The Respondent unilaterally
implemented a shift change and a wage differential, in violation of Sec.
8(a)(5). The implementation involved,
inter alia, telling two individual employees of this shift change and wage
differential. In Chairman Battista’s
view, this is not two violations, viz., unilateral change and direct dealing. Rather, the conduct is simply an implementation
of a unilateral change. Turning one violation
into two is simply “piling on” and serves no useful purpose.
2 If this Order is
enforced by a judgment of a
1 All dates are in 2002 unless otherwise indicated.
2 The dates of these sessions were: August 11, September 29, October 27, and December 2, 1999; January 6 and 20, February 3 and 22, March 23, May 9 and 23, August 10, September 28, October 24, and December 6, 2000; January 26, July 11, and October 31, 2001; February 21, May 21, July 10, and October 10, 2002.
3 The discontinuation of
the evening shift shortly after the
4 Several draft agreements were introduced. The draft agreement referred to in this decision is GC Exh. 28, denoted “Employer Proposal 11/1/01.”
5 There is no claim that
the
6 It bears repeating that
my findings are based solely on the evidence before me. It may well be that
Respondent was faced with an economic exigency on June 14, because it was no
longer operating the second shift on a permanent basis, and had it been
operating a steady second shift, it would have had the resources to meet this
particular customer demand. The issue of the lawfulness of the discontinuation
of the permanent second shift after the