Siemens Building Technologies, Inc. and International
September
30, 2005
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Schaumber
On February 25, 2004, Administrative Law Judge Martin J. Linsky issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief to the Respondent’s exceptions, and the Respondent filed a reply brief.
The National Labor Relations 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.[2]
i. facts
In 2002
The County had a collective-bargaining agreement with the
On December 30, the Respondent hired employees and on January 1 it began to operate the plant. The parties stipulated that the majority of the Respondent’s unit employees had been employees of the County at the same plant. The judge found, and we agree for the reasons stated by him, that the Respondent is a successor employer to the County.
On January 2, the
ii. refusal to
recognize and bargain
The Respondent contends that it refused to recognize and
bargain with the Union because the
Under the pre-Levitz standard, the employer bears the burden of proving that its withdrawal of recognition was lawful. The Board “does not exclude classes of evidence”—for example, a supervisor’s hearsay testimony regarding the antiunion sentiments of employees—“but rather accords evidence the weight to which it is entitled based on its reliability.”[7]
The date we focus on here is January 3, the date that the
Respondent received the
First, there is persuasive evidence that the Respondent
decided not to recognize or bargain with the Union for reasons other than a
good-faith reasonable doubt of the
Second, the reasons advanced by the Respondent for its
claim of doubt of the
McKee also testified that the Respondent relied on the
employees’ failure to object when they were told, on December 30, that the Respondent
would be “non-union” and on the fact that no employee voiced support for the
We therefore conclude that the Respondent has not demonstrated
that it had a good-faith reasonable doubt regarding the Union’s majority
support, let alone evidence of the
iii. the
affirmative bargaining order
We also
find, for the reasons fully set forth in Caterair International, 322
NLRB 64 (1996), and Williams Enterprises, Inc., 312 NLRB 937,
940–942 (1993), enfd. 50 F.3d 1280 (4th Cir. 1995), that an affirmative
bargaining order is
warranted as a remedy for the Respondent’s unlawful refusal to recognize and
bargain with the
In several
cases, however, the
We have examined the facts of this case, and find that a balancing of the three factors warrants the grant of an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindicates the Section
7 rights of the unit employees who were denied the benefits of collective
bargaining by the Respondent’s unlawful refusal to recognize and bargain with
the
The Respondent
never recognized or bargained with the Union after it commenced operations at
the Iola power plant, despite the
(2) An affirmative bargaining order also serves the policies of the Act
by fostering meaningful collective bargaining and industrial peace. That is, it removes the Respondent’s
incentive to delay bargaining in the hope of discouraging support for the
(3) A cease-and-desist order, without a temporary
decertification bar, would be inadequate to remedy the Respondent’s violations
because it would permit a decertification petition to be filed before the
Respondent had afforded the employees a reasonable time to regroup and bargain
through their representative in an effort to reach a collective-bargaining
agreement. Indeed, permitting a
decertification petition to be filed immediately
might very well allow the Respondent to profit from its own unlawful
conduct. We find that these
circumstances outweigh the temporary impact the affirmative
bargaining order will
have on the rights of employees who oppose continued representation.
For all of the
foregoing reasons, we find that an affirmative bargaining order with its temporary decertification
bar is necessary to fully remedy the violations in
this case.
ORDER
The
National Labor Relations Board adopts the recommended Order of the
administrative law judge as modified below and orders that the Respondent, Siemens
Building Technologies, Inc.,
1. Substitute the following for paragraph 1(a).
“(a)
Failing and refusing to bargain with the International Union of Operating
Engineers, Local 832, as the exclusive collective-bargaining representative of
the employees in the following unit, which is appropriate for collective bargaining:
All full-time and regular part-time stationary
engineers, including the chief engineer, and firemen employed by the Respondent
at the IOLA power plant located at 444 East Henrietta Road, Rochester New York,
excluding office employees, guards, managerial employees, and supervisors as
defined in the National Labor Relations Act, 1947, as amended.”
2. Substitute the attached notice for that of the administrative law judge.
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 a 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 fail and refuse to bargain
with the International Union of Operating Engineers, Local 832, as the
exclusive collective-bargaining representative of the employees in the
following unit, which is appropriate for collective bargaining:
All full-time and regular part-time stationary
engineers, including the chief engineer, and firemen employed by us at our IOLA
power plant located at
We will not
unlawfully conduct a poll to determine if our employees wish to be represented
by the
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Federal Law.
We will recognize
the
Siemens Building Technologies, Inc.
Greg Lehmann, Esq., for the General Counsel.
Peter C. Nelson, Esq. (Shapiro, Rosenbaum,
Liebschutz, and Nelson, LLP), of
DECISION
Statement of the Case
Martin J.
Linsky, Administrative Law Judge.
On January 23, and June 17, 2003, the International Union of Operating
Engineers, Local 832 (the
On August 27, 2003, the National Labor Relations Board (the Board), by the Regional Director for Region 3, issued a consolidated complaint, herein complaint, which alleges that Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act), when it failed and refused to recognize and bargain with the Union, when it told prospective employees that as a condition of employment they had to resign their membership in the Union and when it conducted a poll to determine if its employees wished to be represented by the Union or not.
Respondent filed an answer in which it denied that it violated the Act in any way.
A hearing was held before me in
Based on the entire record in this case, to include posthearing briefs submitted by counsel for the General Counsel, Respondent, and the Charging Party, and on my observation of the witnesses and their demeanor, I make the following
Findings of Fact
i.
jurisdiction
Respondent has an office and place of business in
In December 2002, Respondent finalized an installation operation and maintenance agreement with the Monroe Newpower Corporation, a nonprofit group, which owned the Iola powerplant. Under the agreement, among other things, the coal-fired Iola powerplant was to be decommissioned and replaced by two gas-fired cogeneration facilities. The coal-fired Iola powerplant was to remain in operation until decommissioned and replaced.
Respondent admits that it annually purchases and receives
at its
Respondent further admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
ii. the labor
organization involved
Respondent admits, and I find, that the
iii. the
alleged unfair labor practices
A. Overview
The Iola Power Plant is a coal-fired power plant, which
until the end of 2002 was owned and operated by
In 2002,
Respondent, Siemens Building Technologies, Inc., entered into an installation operation and maintenance agreement with Monroe Newpower Corporation.
The terms of the agreement were that Respondent would take over the Iola powerplant on January 1, 2003, and operate it as a coal-fired facility until it was decommissioned and replaced by two gas-fired cogeneration facilities.
The
It was obvious the Respondent would need people, i.e., firemen and engineers, to run the power plant during the time it took to decommission the old plant and replace it with the new cogeneration facility, which would require employees who operated the new facility to have different expertise than the expertise required to run the Iola powerplant.
B.
Negotiations Begin Between the
Before the Respondent took over the power plant it engaged in negotiations with the Union regarding the employees needed to run the plant.
The
Respondent, through its witness, Service Operations Manager
Scott McKee, claims there was a third meeting on December 24, 2002, where the
Union flat out rejected Respondent’s final offer. I do not credit McKee’s testimony in this
regard and find that no negotiations or meeting took place between Respondent
and the
Accordingly, the only two negotiating sessions that took place were on December 12 and 19, 2002.
Respondent did not take over the power plant until January 1, 2003, and did not hire any employees until December 30, 2002. When the parties met on December 12 and 19, 2002, Respondent had not hired any employees to run the power plant.
At the December 12 meeting, Respondent said it was amenable
to reaching an agreement with the
On December 18, the day before the scheduled second meeting
Respondent e-mailed to the
This Agreement will
terminate on the earlier of eighteen (18) months from its Effective Date or
that date on which the Employer completes its work with respect to the
operation of the existing Iola Power Plant or the date on which the Employer is
relieved of its obligations under its agreement with its customer to operate
the existing Iola Power Plant or the date on which said agreement is
terminated. This Agreement will not
apply to any construction and repair related work done by the Employer at the
existing Iola Power Plant after the existing Iola Power Plant closes
operations.
The parties met on December 19. They adjourned with the understanding that
the
Also late on December 19, Respondent faxed and e-mailed to the Union what Respondent referred to as its “final offer” and requested that the Union let Respondent know what its decisions is “by Friday, December 20th at 12 noon.”
The Union’s Michael Scahill left a message at Scott
McKee’s office to the effect that the
The principal dispute between the Respondent and the
On December 23, the
FROM: Jim Glathar
SENT: Monday, December 23, 2002 11:58 AM
TO: McKee Scott
Scott,
After conferring with our attorney this morning there are a few things in the collective bargaining agreement that we need to discuss, we will be putting together a counter proposal package for you to look at but with the current work load and the upcoming holidays we are having difficulties getting this prepared. Our office will be closed on the 24th and 25th for the Christmas holiday and I will be out of town on the 26th and 27th. Mike [Scahill] is off today but will be here on Thursday and Friday the 26th and 27th. Hopefully we can get something for you to look at before we schedule another meeting.
Some of our concerns are with the time frame for the grievance procedures, how the health insurance payments are earned, Seniority, and some other issues that we have. Mike or myself will be in touch with you right after the Christmas Holiday to schedule a meeting so that we can settle some of these outstanding issues.
Have a merry Christmas,
Jim Glathar
On December 30 Respondent hired the crew it would need to
run the Iola powerplant beginning January 1, 2003, when Respondent took over
the operation of the plant. It is stipulated
by the parties that a majority of the work force hired by Respondent were
former employees of
On January 2, 2003 the Union, by Business Representative
Michael Scahill, sent Respondent a letter requesting Respondent to recognize
the
On January 3, 2003, Respondent, by Scott McKee, wrote a
letter to the
On January 16, 2003, Respondent’s attorney, Stanley J. Garber,
sent a letter to the Union denying the
C. Is Respondent a Successor
The mere fact that the employing entity changes from a governmental unit, or public sector employer, such as a State or county, to a private sector employing entity does not mean the new employer—the private sector employer—is not a successor. See Lincoln Park Zoological Society, 322 NLRB 263 (1996), enfd. 116 F.3d 216 (7th Cir. 1997). The new employer can be a successor if it meets certain other criteria.
The Supreme Court, in NLRB v. Burns Security Services, 406
U.S. 272 (1972), held that a new employer has a duty to recognize and bargain
with the incumbent Union when two general factors, which can be summarized as
(1) continuity of the work force and (2) continuity of the enterprise, are present. Although Burns dealt with a successor
employer’s bargaining obligations to a newly certified Union, it is clear that
the Burns rationale is equally applicable to situations where the
In order to establish a “continuity of the work force,” the former employees of the predecessor who were employed in the predecessor’s bargaining unit must comprise a majority of the new employer’s complement within that same bargaining unit.
After establishing the continuity of the work force, the
analysis proceeds to the second factor: the continuity of the enterprise. In evaluating the continuity of the
enterprise, the Board looks to the following elements: (1) whether there was
been substantial continuity of the same business operations; (2) whether the
new employer uses the same facilities; (3) whether the same jobs exist under
the same working conditions; (4) whether the new company employs the same
supervisors; (5) whether the same equipment, machinery or processes are used:
(6) whether the same products or services are offered; and (7) whether the new employer
has basically the same body of customers.
An employer can be found to be successor even if it purchases
or assumes only a part of the predecessor’s operations.
The Board and the courts have emphasized that the question of whether or not there is substantial continuity between the old and new business is to be examined from the perspective of the employees affected. The pertinent inquiry is whether there has been enough of a change in operations to defeat the employees’ expectation of continued union representation. Fall River Dyeing, supra; Premier Products, 303 NLRB 161 (1991); Capitol Steel & Iron Co., 299 NLRB 484 (1990).
Generally, another consideration in evaluating a Burns
successor is whether there has been a hiatus between the cessation of the old
operation and the commencement of the new business. Fall River Dyeing, supra. As a rule, the longer the hiatus, the less
likely an entity will be deemed a successor.
In Burns, the Supreme Court enunciated the
principle that, “a successor employer is ordinarily free to set initial terms
on which it will hire employees of a predecessor” without first bargaining with
the employees’ bargaining representative.
The Court recognized an exception to this principle, however in
“instances in which it is perfectly clear that the new employer plans to retain
all of the employees in the unit. . . .” 406
In Spruce Up Corp., 209 NLRB 194, 195 (1974), the Board promulgated a specific test to determine whether the exception in Burns applies. Specifically, the Board found that the exception applies if either of the following circumstances exist: (1) where the new employer has actively or, by tacit inference, misled employees into believing they would be retained without change in their wages, hours, or conditions of employment; or (2) whether the new employer has failed to announce its intent to establish a new set of conditions prior to inviting former employees to accept employment. 209 NLRB at 95.
A successor employer’s obligation to recognize and bargain
is triggered by the incumbent
It may be difficult in some cases to determine at precisely what point in time a new employer is obligated to bargain. Thus, the Supreme Court has held that a new employer’s obligation to bargain attaches when it has hired a “substantial and representative” compliment within the unit. Fall River Dyeing, supra. In determining the existence of a substantial and representative compliment, the Board must consider whether the job classifications designed for the operation were filled or substantially filed at the time the demand for recognition or bargaining was made; whether the operation was in normal or substantially normal production at the time of the demand; the size of the bargaining unit complement on the date of the demand; that the relative certainty of any new employer’s claim that anticipated expansion makes its current unit employee complement not substantial and representative of its normal operations.
Respondent took over operation of the Iola Power Plant on
January 1, 2003. It is stipulated by the
parties that a majority of the employees represented by the
The stipulation read into the record was as follows: The majority of the employees hired by
respondent, Siemens Building Technologies, at the end of December 2002 had been
employed just prior thereto by
The stipulation will also include that the following employees worked at the Iola Power Plant within the previous five months of December of 2002, and those employees include Henry Brown, Paul McBride, James Muhs, M-U-H-S, and Daniel Steinfeldt, S-T-E-I-N-F-E-L-D-T.
And furthermore, respondent also hired on December, at the
end of December 2002, two part-time employees that had been employed just prior
thereto by
Judge Linsky: Off the record.
(Off the record)
Judge Linsky: On the record Mr. Lehmann?
Mr. Lehmann: Can we go off the record.
Judge Linsky: Off the record.
(Off the record)
Judge Linsky: On the record Mr. Lehmann, on the last two.
Mr. Lehmann: On the last two, involving the part-time
employees, the stipulation would read that Robert Cammilleri,
C-A-M-M-I-L-L-E-R-I, was hired as a part-time employee by the respondent had
been employed just prior thereto by
Richard Healy testified without contradiction that the
work done by the
The Iola powerplant was operated the same as before and serviced the same customers.
It is clear that Respondent is a Burns successor
with an obligation to recognize the
The failure of the parties to reach agreement on a new contract
may be grounds for Respondent to declare a lawful impasse and unilaterally
implement its last best offer but it is not grounds for Respondent to refuse to
recognize and bargain the
The duty to recognize and bargain with the Union is not terminated
if the Respondent and the
D.
The Alleged 8(a)(1) Statements by
Respondent’s Agent Beatriz Pyle
On December 30, 2002, when Respondent was in the process of
offering jobs to the employees to work at the powerplant Beatriz Pyle, an
admitted agent of Respondent, told the employees that, as a condition of
employment, they had to resign their membership in the
Employees Tim Berna and John Ciminelli called Union Representative
Michael Scahill who caused a union attorney to tell Respondent that what was
said was illegal. In addition, Scott
McKee overheard Pyle make the comment.
McKee contacted Respondent’s counsel who instructed McKee to let the
employees immediately know that as a condition of employment they did not have to resign their membership in
the
In addition, Respondent posted a notice that same day which remained on the bulletin board for 3 months and which provided as follows:
Date: 12/30/2002
To: IOLA Plant Employees
From: Scott N. McKee
Priority: [Urgent]
This will confirm our discussion today concerning the status of the jobs in the IOLA Power Plant. Siemens Building Technologies was unable to reach an agreement with the union, and the positions that have been offered to you are non-union jobs.
Employees at the Iola Plant can elect to give up their current union membership, however, this will not be required as a condition of employment. The earlier communication on this matter was a misunderstanding concerning the transition process.
Please address any concerns with this issue directly with me.
Thank you.
Respondent’s very prompt and appropriate disavowal of
Pyle’s statement that as a condition of employment the employees would have to
resign their Union membership leads me to conclude that Pyle’s statement, since
promptly retracted, did not amount to a violation of Section 8(a)(1) of the
Act. If Respondent had not retracted
Pyle’s statement or was dilatory in doing so I would find a violation of the
Act. I believe all counsel agreed on
this but prompt corrective action avoids a finding of an unfair labor
practice. I note again that no employee
withdrew from the
I denied as untimely counsel for the General Counsel’s motion
to amend the complaint to allege a violation of Section 8(a)(1) of the Act
because of the statement in McKee’s memo of December 30, 2002, that “the
positions that have been offered to you are non-union jobs.” Although the memo had only recently come into
the possession of the General Counsel it had been posted from December 2002 to
March 2003. The hearing before me was in
October 2003. However, the statement
that the jobs offered “are non-union jobs” is further evidence of Respondent’s
unlawful refusal to recognize and bargain with the
E.
Why Respondent Claims It Didn’t Recognize and
Bargain with the
On direct examination, Service Operations Manager Scott McKee was questioned by Respondent’s attorney. Pertinent testimony was as follows:
Q. My question to you is, and in the General Counsel Exhibit 9, written by Mr. Garber to Mr. Scahill denies 832’s request for recognition and negotiations. Why did Siemens not recognize and continue to negotiate with 832 in January 2003?
A. There was basically two reasons.
Q. What are they?
A. We had already been down this road, trying to negotiate with them, and we hadn’t gotten anywhere.
Q. But what in particular was the stumbling block?
A. That they wanted to have a scope that went beyond the Iola power facility.
Q. Had you had any indication that Local 832 was going to relent on that position?
A. No.
Q. All right.
A. And the second
reason was that we didn’t feel that the employees wanted to have the
Q. Did you have a basis for this belief?
A. Yes, when the
original offers were presented to the
Q. To the
A. When we had
presented the offer to the Union, the
Q. How do you know that?
A. Because they had told me that, and they mentioned that they were upset because they thought that, after seeing the offer that was a clear offer.
Judge Linsky: Now you say they told you, who is they?
Mr. Novak: Your Honor, on this—
Judge Linsky: No, no, no.
I’m saying he sounded like he could be saying the
The Witness: The persons that were made offers.
Q. So you said there were four factors that (unclear).
A. The second one was that when I had mentioned that the positions that were going to be offered were non-union positions, nobody objected to that.
Q. So they all accepted the offer knowing full well it was a non-union job?
A. Correct
Q. Three?
A. Again, when I mentioned that these were non-union positions nobody expressed an interest in (unclear) them.
Q. And to this day
has anyone expressed an interest in having the
A. No.
Q. Anything else?
A. The fourth reason was I had a couple of the employees that are now working for Siemens come up to me and say that the Union had not done anything for them, therefore they had no—
Mr. Lehmann: Objection, Your Honor, hearsay.
The Witness: They told me.
Mr. Lehmann: Hearsay
Mr. Novak: Your Honor, I’m not offering that for the truth. I’m offering it for the fact that it was said.
Judge Linsky: Objection overruled. Not introduced for the truth of the matter
stated, but for the state of mind of the respondent when they made the decision
not to recognize the
Mr. Novak: Correct
Judge Linsky: All right
Mr. Novak: Could I have the record read back to see the last part of his answer about employees’ statements to him?
Q. Why did Siemens decide to poll its employees?
A. It was apparent
that there were employees that did not necessarily have the
On cross-examination by counsel for the General Counsel, the following testimony was elicited:
Q. Now going to the
four reasons that you had indicated previously in your testimony of why Siemens
denied recognition and bargaining. The
fourth reason that you testified to was that a couple of employees had told you
that they weren’t happy with the
A. Not exactly.
Q. You testified
that these employees had told you that the
A. That’s correct.
Q. Can you identify who these employees are?
Mr. Novak: I’m going to object, Your Honor. We are very concerned that this
Mr. Nelson: Your Honor, we’ve been talking names the whole time. He has not identified who they were. He hasn’t really identified how many. If we can’t get the names then it should be treated as though nobody complained. We don’t know if the people were actually members that were hired on that January 1st.
Judge Linsky: I think we got a choice here. We can either strike that testimony from this Witness or he can give the names.
Mr. Novak: Can we take a break on that?
Judge Linsky: And I’m not sure that he shouldn’t really
have to give the names in any event. But
why don’t you see? And of course there
are several of these reasons. That’s the
one about there were four reasons. One
was when told it was non-union they didn’t object. That’s everybody they hired, I guess. When told it was non-union, no one expressed
the intent that they wanted the
Mr. Novak: let me take about 5 minutes.
Judge Linsky: Off the record.
(Off the record)
Judge Linsky: On the record.
Mr. Novak: Respondent withdraws its objection to the question.
Judge Linsky: Okay, you want to repeat it?
Mr. Lehmann: Yes.
Q. Can you identify
the employees who stated that the
A. Yes, there was Henry Brown and Tony Pursati.
Q. And it’s your testimony that these conversations took place prior to the denial of recognition or after?
Mr. Novak: Could counsel give a date? Prior to the recognition is a legal—
Mr. Lehmann: Okay.
Judge Linsky: When did they tell him that would be one way to get at it, and then put it in the frame of in terms of other events that we know about.
Q. Did these conversations occur prior to January 16, 2003?
A. Yes.
Q. Do you recall providing a sworn statement to the National Labor Relations Board regarding this very same issue?
A. I remember providing a statement.
Mr. Novak: Your Honor, we will object to the characterization of the affidavit being provided for the very same issue.
Mr. Lehmann: Okay, I’ll strike that characterization.
Q. Now turning to the back page of the affidavit that you have in your hands.
A. Yes.
Q. Is that your signature?
A. Yes.
Mr. Garber: Can we identify which affidavit he has in his hands. He has provided two affidavits for the National Labor Relations Board.
Judge Linsky: What page and what’s the date of the affidavit, Mr. Lehmann.
Mr. Lehmann: The
date of the affidavit is dated July 18, 2003, and right now I’m asking him to
turn to page 6.
Mr. Garber:
Excuse me, there were two affidavits given on that date by Mr. McKee to
Mr. Lehmann. Can he please identify
which affidavit?
Mr. Lehmann: It’s
for the case, on the front page it’s for the case 3-CA-24304.
Mr. Garber: Thank
you.
Q. Is that your signature?
A. Yes.
Q. I’m going to
draw your attention to the second page.
The first full paragraph, the 2nd sentence, it says “More specifically,
I had three specific conversations with Henry Brown in which he indicated to me
that the Union has not done anything for him.
Thus, he did not want to be represented by the
A. Yes, it is.
Q. The next sentence says these conversations occurred somewhere between the end of January 2003 to the beginning of June 2003, correct?
A. That’s what it reads.
Q. The very next
paragraph goes on to say, I also had conversations with Anthony Pursati
regarding his dissatisfaction with how the
Correct?
A. That’s what it says.” [Tr. 151–161.]
It seems clear that the complaints of employees Henry
Brown and Anthony Pursati occurred after Respondent refused to recognize and
bargain with the
The other reasons advanced by McKee for not recognizing
and bargaining with the
Accordingly, Respondent violated Section 8(a)(1) and (5)
of the Act when it refused to recognize and bargain with the
F. Polling
In June 2003, Scott McKee testified that based on the reasons he articulated for refusing to recognize the Union and for certain additional reasons he caused a poll to be taken among Respondent’s employees as to whether or not they wanted to be represented by the Union.
The additional reasons were that employees Ray O’Dell and Anthony Pursati were helped out by Respondent when they had medical problems and that Bert Lute, a former employee at the Iola powerplant and a former union officer told Scott McKee that, according to union official Michael Scahill, if the employees didn’t want the Union to represent them the unfair labor practice charges would be dropped. Scahill denies he said this to Lute but Lute did tell this to McKee. In any event Respondent decided to conduct a Struksness poll under the auspices of the American Arbitration Association.1 And Respondent decided to do it on June 16, 2003, just days before the case was scheduled for trial in the hopes that the results of the poll would obviate the need for the hearing. In any event the hearing was postponed and not heard by me until October 2003.
Respondent refused the
It is alleged that the taking of the poll violated Section 8(a)(1) of the Act and I agree because the poll was tainted by the unremedied unfair labor practice of Respondent dating back to January 2003 when Respondent unlawfully refused to recognize and bargain with the Union. See Power Electrical Mfg. Co., 287 NLRB 969–970 (1987), affd. in pertinent part 906 F.2d 1007 (5th Cir. 1990). Under Struksness an employer can not conduct such a poll if it has engaged in unfair labor practices.
Remedy
The remedy for Respondent’s unlawfully conducting a poll will be a cease and desist order and the posting of an appropriate notice.
The remedy for Respondent’s unlawful refusal to recognize
and bargain with the Union will be a cease and desist order, the posting of an
appropriate notice, and a requirement that, upon request from the Union, that
Respondent recognize the Union and bargain with the
One of the problems Respondent and the
Conclusions of Law
1. Respondent, Siemens Building Technologies, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. Respondent
violated Section 8(a)(1) and (5) of the Act when it refused to recognize the
4. Respondent
violated Section 8(a)(1) of the Act when it conducted an unlawful poll as to
whether its employees wished to be represented by the
5. The above violations of the Act are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on the entire record I issue the following recommended2
ORDER
Respondent, Siemens Building Technologies, Inc.,
1. Cease and desist from
(a) Unlawfully refusing to recognize and bargain with the
(b) Unlawfully conducting a poll among its employees as to
whether they want to be represented by the
(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Upon request recognize the Union as the collective bargaining
representative of the employees in the appropriate unit and bargain with the
(b) Within 14 days after service by the Region, post at
its facility in
(c) 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.
[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
There are no exceptions to: (1) the judge’s findings that the Respondent sufficiently disavowed its December 30 statement to the predecessor employees that employees would have to resign their union membership as a condition of employment with the Respondent, and thus the statement does not warrant a finding of violation or a remedy; or (2) the judge’s denial of the General Counsel’s motion to amend the complaint to allege that the Respondent violated Sec. 8(a)(1) by stating, in a memorandum to employees posted on December 30, 2002, that “the positions that have been offered to you are non-union jobs.”
[2]
The judge inadvertently failed to include a description of the appropriate
bargaining unit in his decision. The
bargaining unit alleged in the amended consolidated complaint is essentially
the same as the unit described in the collective-bargaining
agreement between the predecessor (
[3] Dates in December are 2002; otherwise dates are 2003.
[4]
The central issue in dispute during those negotiations was whether any
collective-bargaining agreement that the parties entered into would survive the
Respondent’s planned decommissioning of the plant and opening of two new
cogeneration facilities to replace it.
The Respondent wanted the agreement to end when, as stated by the judge,
“the two new cogeneration facilities were on line and the old plant decommissioned
because the jobs’ duties would differ.”
The
[5] In
Levitz, supra, the Board held that an employer may rebut the presumption
of an incumbent union’s majority status “only on a showing that the union has,
in fact, lost the support of the majority of the employees in the bargaining
unit.” 333