NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
University Moving & Storage Co. and Local 243, International Brotherhood
of Teamsters.1 Cases 7–CA–47352 and 7–CA–47750
June 11, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Schaumber
On August 29, 2005, Administrative Law Judge Paul Bogas issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions, a supporting brief, and an answering brief to 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 in light of the exceptions and briefs, and has decided to adopt the judge’s rulings, findings and conclusions only to the extent consistent with this Decision and Order.
i. background
University Moving and Storage (the Respondent) provides
local and long-distance moving services.
The allegations in this case arise from a lockout at the Respondent’s
facility in
At issue here is the Respondent’s denial of sick leave and vacation pay to locked out employees, as well as the Respondent’s withholding of certification releases for two locked out employees. As we will explain, we find that the allegations regarding the denial of sick leave and vacation pay are timely, and we adopt the judge’s finding that the denial violated Section 8(a)(5) of the Act, without passing on the judge’s finding that it also violated Section 8(a)(3). With respect to accrued vacation benefits, we extend the limited remedy recommended by the judge to all employees who had accrued leave, regardless of whether they requested it. Finally, because we conclude that the Respondent acted consistent with its past practice, we reverse the judge’s finding that the withholding of certification releases violated Section 8(a)(3).
ii. sick leave
and vacation benefits
A. Sick Leave
The contract that expired on May 31, 2003 provides that employees with 1 year or more of seniority accrue 5 days of sick leave in each contract year. It further provides that unused sick leave will be paid to employees at the end of each contract year, and shall not be accumulated from year-to-year. Qualifying employees acquire a new allotment of sick days on the first day of each contract year, June 1.
Under the terms of the contract, all employees with at least 1 year of seniority who had worked at least 60 percent of working days in the previous 12 months accrued a new allotment of 5 more sick days on June 1, 2003. Those who worked less than 60 percent of working days received a prorata allotment of the 5 days.
At the time of the contract’s expiration, five employees had accrued sick leave in amounts ranging between 1 and 3 days apiece.
B. Vacation Leave
The number of vacation days an employee receives depends on the number of years with the company, and becomes payable on the anniversary date of the employee’s hiring. If vacation leave is not used in the year following the leave’s accrual, it expires and cannot be taken.
At the time of the contract’s expiration, 15 employees had accrued vacation days, ranging from 2 to 21 days. Qualifying employees also received a new allotment of vacation leave at their first anniversary date following the institution of the lockout.
Since the start of the lockout, the Respondent has denied
employees their accrued sick leave and vacation benefits. At a bargaining session on December 22, 2003,
local vice president, Thomas Weldon, told the Respondent that some employees
had told him that they had not received vacation and sick pay they were
owed. Respondent’s representative,
Patricia Peterson, replied that there was “no contract in place.” Weldon then requested information on the
vacation time that was still available to all employees, providing the
Respondent with the names of employees who thought they had vacation owed to
them. Attorney James Perry stated that
Respondent would check its records and get back to the
In a letter dated March 1, 2004, Peterson stated the Respondent’s position that employees were only entitled to paid vacation time during the term of the contract, and that the vacation provisions did not survive the expiration of the contract. The letter further stated that even if the vacation provisions continued beyond the contract’s expiration, the Respondent did not believe that any unit employees were entitled to vacation pay. In April, several employees made requests for their accrued benefits. These requests were denied by the Respondent.
C. Timeliness of Charge
We first reject the Respondent’s claim that the allegations regarding denial of sick leave and vacation pay are time barred under Section 10(b) of the Act. The charge relating to vacation pay was filed on August 6, 2004. The charge relating to sick pay was filed on September 29, 2004.
We adopt the judge’s finding that the 10(b) period for the
vacation leave allegation did not begin until March 1, 2004, the date of
Peterson’s letter announcing the Respondent’s position that employees had no
right to paid vacation leave. Prior to
that date, the Respondent had not clearly stated that it was unwilling to pay
the accrued vacation benefits. Although
Peterson stated that “there is no contract in place” on December 22, 2003, she
did not specifically state that the Respondent did not believe it owed the
employees any benefits. In addition,
Peterson’s December statement was coupled with assurances that the Respondent
would provide the
With respect to the denial of sick leave pay, the Respondent
never gave the Union adequate notice that it was challenging employees’
post-contract entitlement before the
Moreover, we find that the
D. Denial of Accrued Sick Leave and Vacation Benefits
We adopt the judge’s finding that the Respondent’s denial of accrued sick leave and vacation benefits after the expiration of the contract violated Section 8(a)(5) of the Act. Board precedent clearly establishes that an employer must continue to apply the provisions of an expired contract until either a new agreement or impasse is reached. Made 4 Film, Inc., 337 NLRB 1152 (2002). Bargaining was ongoing at the time of the contract’s expiration, and there is no claim that the parties were at impasse. Consequently, the Respondent’s failure to continue making payments of accrued sick leave and vacation benefits under the provisions of the expired contract constituted an unlawful unilateral change under Section 8(a)(5) of the Act.
Because it would not affect the remedy, we find it unnecessary
to reach the judge’s finding that the Respondent’s actions also violated Section
8(a)(3) of the Act.4
E. Remedy
We reverse the judge’s denial of accrued vacation benefits
to those employees whose anniversary dates occurred after the institution of
the lockout but before the
Following the expiration of the contract, the Respondent
ceased making payments for accrued sick leave, which had in previous years been
paid to employees at the end of each contract year. The Respondent gave no indication that it was
somehow willing to grant vacation leave, even though it was denying sick
leave. Moreover, under the
circumstances, employees had no reason to believe that the Respondent would
respond favorably to requests for accrued vacation pay. Apart from locking its employees out, the
Respondent made no communication to them before December 22, 2003, when the
We therefore reverse the judge on this issue, and find that the remedy runs to all employees in the unit who had accrued vacation and sick leave at the time of the contract’s expiration.
iii.
withholding certification releases
When performing long-distance moves, the Respondent operates in affiliation with another company, North American Van Lines (NAVL). In order to perform long-distance work, drivers employed by the Respondent must be certified by NAVL’s parent company, SIRVA. SIRVA-certified drivers who wish to do long-distance work for another company that operates under SIRVA’s umbrella must obtain a release from their employer showing that their certifications vis-à-vis that employer have been cancelled. In the instant case, that employer was the Respondent. Respondent’s consistently applied policy is to issue such cancellations and releases only to employees who have terminated their employment.
After the lockout began, employees Timothy Johns and John Nagel obtained work with other SIRVA-affiliated companies. The Respondent declined to issue certification releases for Johns and Nagel because they had not terminated their employment with the Respondent. This action was in accordance with the Respondent’s past practice of not releasing certifications until the employees who were requesting them had left employment with the Respondent. In an attempt to keep the employees from having to terminate from the Respondent, SIRVA’s director of qualifications, Jeff Moore, suggested to the Respondent that it note on the release paperwork that their employment was not being terminated. The Respondent declined this suggestion. For, under its policy, there could be no release in the absence of a termination. SIRVA then suggested that the employees be cross-certified with the companies for which they wanted to work while retaining their certifications with the Respondent. After considering these alternate solutions, the Respondent opted not to vary its past practice of requiring all employees to terminate their employment before obtaining their certification releases.
The judge found that the Respondent’s refusal to issue certification releases for Johns and Nagel violated Section 8(a)(3) and (1) of the Act. We disagree. We find that the Respondent established a legitimate reason for its actions.
Even assuming that the General Counsel established a prima facie case under Wright Line,5 we find that the Respondent met its burden of proving that it would have taken the same actions even in the absence of the employees’ union activity.
In refusing to provide the releases, the Respondent was acting in accordance with its established policy and past practice, which required that employees terminate their employment before obtaining the releases. The evidence indicates, and the judge found, that the Respondent adhered to this policy before the lockout, with no variation. Therefore, we find that the Respondent was within its rights in adhering to its established company policy after the lockout commenced. The Respondent could have chosen to vary its past practice and adopt the alternative solutions proposed by SIRVA, but it was not required to do so. Our dissenting colleague contends that the Respondent’s past practice of conditioning the issuance of certification releases on employees’ resigning their employment was not a binding policy. We agree that it was not “binding” in the sense that neither SIRVA nor NAVL imposed the policy on the Respondent. The policy was instituted and maintained by the Respondent. The fact that the policy was not imposed on the Respondent by an outside party does not make it any less legitimate. The issue is whether the Respondent violated the Act by applying this policy in a lockout situation. Our colleague says that the lockout was “an atypical situation.” It may well have been. But that does not alter the fact that, in law and in fact, the lockout did not end the employment relationship between the Respondent and these employees. Thus, the Respondent chose to apply its policy to these employees, i.e., an employee cannot work for another SIRVA-affiliated company until his/her employment relationship with the Respondent is terminated.
We disagree with our dissenting colleague’s assertion that a “relevant” past practice was not established. Given that the Respondent had never before experienced a lockout, it seems unlikely that it would have devised a policy specifically covering lockouts. Because the Respondent had no specific lockout policy, it chose to apply its established policy governing certification releases to this new situation. We will not find that the Respondent’s practice became “irrelevant” merely because it was applied to a novel situation.
Further, there is not a shred of evidence to indicate that the Respondent’s policy somehow did not apply to lockout situations. There was no reason to treat locked out employees differently from other employees. Nor was there any reason to treat locked out employees as terminated employees. Indeed, Respondent faced a legitimate concern that by issuing the releases to Johns and Nagel, it would, in effect, be terminating their employment, thereby subjecting itself to potential unfair labor practice charges.
Our dissenting colleague infers that the reason for the Respondent’s policy was to prevent its drivers from simultaneously driving for the Respondent and for another employer. There is no evidence to support this inference. The policy is aimed at preventing a person from being an employee of two SIRVA-affiliated companies. As noted above, the employees here remained employees of the Respondent, even during the lockout. The policy, as applied, was consistent with that aim.
Our colleague says that the initial reason for denying the releases (certain log entries had not yet been submitted) was erroneous. Even if erroneous, however, that error could have been intentional or inadvertent. There is no evidence to indicate that it was intentional. We do not agree that this initial incorrect explanation establishes that the real reason for the refusal to provide the releases was pretextual.
We agree that an incorrect reason, and a subsequent change to the correct reason, can in certain circumstances be used to support a prima facie case of discrimination. However, such facts do not themselves prove that the real reason is antiunion motivation.
Further, the second reason for the denial of the releases was accurate: the Respondent’s consistently applied and preexisting policy precluded the issuance of the releases unless and until the employees had terminated their employment, and neither Johns nor Nagel had done so. There is no evidence that the Respondent did not, in fact, rely on its policy as the basis for declining to issue the releases. The mere fact that the Respondent previously, and perhaps erroneously, indicated that there were outstanding log entries that the employees had not completed, does not establish that the subsequent policy justification was pretextual.
We also disagree with the assertion that SIRVA official
Moore’s attempts to resolve the issue somehow obligated the Respondent to alter
its policies.
Our colleague also relies upon the fact that the Respondent
said that the
Finally, our colleague notes that the Respondent ultimately did issue the releases, even without a termination of the employment relationship. However, this was done after the filing of an unfair labor practice charge which essentially challenged the past practice. We would not infer an unlawful motive from an employer’s effort to avoid litigation. Further, the Respondent’s action essentially gave better treatment to locked-out employees than it did to other employees, i.e., it gave them a release even though they were not terminated. Thus, far from being punitive toward these employees, the Respondent was accommodating toward them.
We therefore conclude that the Respondent has met its burden of proving that it would have refused to release the certifications even in the absence of the employees’ union activity. Accordingly, we reverse the judge.
ORDER
Pursuant to Section 10(c) of the National Labor Relations
Act, as amended, the National Labor Relations Board hereby orders that the
Respondent, University Moving & Storage Co.,
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in good faith with Local 243, International Brotherhood of Teamsters, by unilaterally discontinuing payment of unit employees’ accrued vacation and sick leave benefits.
(b) 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 National Labor Relations Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make whole, with interest, all unit employees and former unit employees for the unlawful denial of sick leave benefits by providing them with the sick leave payments they were entitled to under the provisions of the expired contract.
(b) Make whole, with interest, all unit employees and former unit employees for the denial of vacation leave benefits by providing them with the vacation pay that, under the provisions of the expired contract, would have accompanied the employees’ use of their accrued vacation leave if the Respondent had not unlawfully denied the use of such leave.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of payments due under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its facility in
(e) Within 14 days after service by the Region, mail
copies of the attached notice marked Appendix, at its own expense, to all
employees in the bargaining unit who were employed by the Respondent at its
(f) 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.
3. Substitute the attached notice for that of the administrative law judge.
It is further ordered that the complaint is dismissed insofar as it alleges violations not found.
Dated,
______________________________________
Robert J. Battista, Chairman
______________________________________
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
Member Liebman, dissenting in part.
The majority erroneously finds that the Respondent acted lawfully when it refused to release Timothy Johns and John Nagel for long-distance driving certification with other employers during the Respondent’s lockout.1 Section 7 protects the right of employees to engage in union activity and to obtain work with other employers during a strike or a lockout.2 The record clearly establishes that the Respondent’s asserted reasons for denying Johns and Nagel a certification release were pretextual and that the denial was unlawfully motivated and violated Section 8(a)(3).
i. material
facts
The Respondent performs local and long-distance moving in affiliation with North American Van Lines (NAVL) and NAVL’s parent corporation, SIRVA. Under SIRVA’s rules, in order for a driver to perform long-distance (as opposed to local) work for an affiliated employer, the driver must apply for certification by the employer for such work.3 The employer submits the driver’s application to SIRVA for confirmation that the driver has the applicable qualifications. If the driver is found qualified, the driver is certified by the employer to perform long-distance work. Also under SIRVA’s rules, a certified driver who wants to perform long-distance work for another SIRVA-affiliated employer must first obtain a “release” from the current NAVL employer showing that the certification with that employer has been terminated.
On June 2, 2003, the Respondent locked out all of the unit’s
employees. The lockout continued at
least until the hearing in this case in April 2005. Nagel and Johns, who were certified by the
Respondent for long-distance driving, both manned the
A. Johns’ Attempt to Obtain a Certification Release
Johns applied to Rose Moving and Storage (Rose), which was affiliated with Allied Van Lines (Allied), another SIRVA company, and was hired on January 5, 2004. On January 29, however, Allied informed Rose that according to the Respondent Johns could not be released because he had not submitted logbook entries for work he had performed on July 23–25 and August 2–4, 2003. Since the Respondent had locked out its employees more than a month before the earliest of these dates, Johns could not have performed any such work. The Respondent never explained why it had inaccurately informed Allied that Johns performed work on those dates.
Having failed to obtain his release, Johns wrote to Jeff Moore,
director of qualifications for SIRVA, asking that his certification with the
Respondent be cancelled. On January 30,
When the subject of requests for releases came up at a
subsequent bargaining session on February 5, the Respondent stated that if
Johns wanted to work at another SIRVA company “all he had to do” was
resign. The
B. Nagel’s Attempt to Obtain a Certification Release
Nagel’s experience was identical to that of Johns. In November 1993, 5 months after the lockout
began, he sought long-distance work with Palmer Moving and Storage (Palmer),
another SIRVA-affiliated company. After
Palmer’s long-distance manager, Christina Borowski, had decided to hire Nagel,
she was informed that the Respondent refused to issue his certification release. At first Borowski was told that Nagel (like
Johns) had not submitted the required logbook entries for work he performed on
August 20–21, 2003. As in Johns’ case,
this purported work was more than 2 months after Nagel had been locked out and
therefore could not have been performed by him.
In addition, the ALJ credited the testimony of Borowski that she had
never seen an employer make an error of this nature.4
Also as with Johns, the Respondent provided no explanation for its “mistake.” On February 10, 2004,
ii. analysis
The majority does not dispute that the General Counsel met
his initial burden under Wright Line5 of showing that the Respondent’s
refusal to release Johns and Nagel was motivated at least in part by antiunion
animus. The majority also concedes that
the Respondent had no “binding” policy preventing it from granting those releases. Nevertheless, the majority finds that the
Respondent lawfully “chose” to follow its own purported past practice of
withholding releases in all cases except where the released employees
resigned. Accordingly, the majority
concludes, the Respondent carried its Wright
Line burden of showing that it would have taken the same actions if Johns
and Nagel had not been members of the
First, under the circumstances here, the Respondent established no relevant “past practice” whatsoever. The judge did find that SIRVA and NAVL “generally” prohibited certified drivers for one affiliated mover from starting work as a certified driver for another affiliated mover unless employment with the first company “had ended,” and that the Respondent’s normal practice was consistent with these rules. However, in locking out its employees, the Respondent created an atypical situation, during which there was no risk of employees driving simultaneously for the Respondent and another employer. In this setting, the Respondent’s prior application of the policy is irrelevant.
Second, the Respondent initially did not even cite past practice as the basis for withholding the releases. The Respondent instead gave a different reason, which was invalid: that Johns and Nagel had each failed to submit log entries for work that they could not, in fact, have performed. Not only was this claim untrue, but Borowski, Palmer’s long-distance manager (a 25-year veteran of the moving industry) confirmed that she had never seen an employer make this sort of error. This is presumably why the Respondent never even proffered a reason for making the two identical “errors” as to these two particular employees.6 Where an employer’s stated reason for taking an adverse action against an employee is pretextual, an inference is justified that the real motive was unlawful.7
Third, only when it had become obvious that the Respondent
could no longer rely on its false claim that Johns and Nagel were deficient
with respect to paperwork did the Respondent switch to the excuse that they were required to resign in order to be eligible for
release. A respondent’s shifting explanations for taking adverse personnel actions
also support an inference of unlawful motivation.8
Fourth, the judge—essentially discrediting the Respondent’s witnesses—found that the Respondent was not motivated by any past practice. The policy’s underlying purpose was to prevent drivers from working for two SIRVA employers at the same time. For this purpose, the discriminatees’ employment with the Respondent effectively “had ended” at the start of the lockout—at the Respondent’s volition, not theirs—and their certification for work elsewhere for the duration of the lockout would not have resulted in dual employment. Adherence to the Respondent’s past practice, then, made no business sense—which supports a finding of unlawful motive.
In addition, Moore, the official directly responsible for enforcing SIRVA’s certification requirements, confirmed by his suggestions that the discriminatees were not required to resign and that the Respondent could issue their releases without terminating their employment. The Respondent itself confirmed this by ultimately issuing the releases to both employees without requiring them to resign.
Finally, the Respondent’s own communications on the
subject of the releases further confirm that its real motivation was antiunion
animus. The Respondent had no basis
whatsoever for telling
Despite the fact that the Respondent established no relevant past practice supporting its refusal to provide certification releases and based its refusal on a pretextual reason, the majority concludes that the Respondent met its Wright Line rebuttal burden of demonstrating that it would have refused to provide releases even in the absence of its union animus. In reaching this conclusion, the majority concocts various defenses for the Respondent and distorts the Wright Line framework. The record establishes that the Respondent withheld the discriminatees’ certification releases because they engaged in union activity. I therefore agree with the judge that its actions violated Section 8(a)(3).
Dated, Washington, D.C. June 11, 2007
______________________________________
Wilma B. Liebman, Member
National Labor Relations Board
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 collectively and in good faith with Local 243, International Brotherhood of Teamsters, by unilaterally discontinuing payment of your accrued vacation and sick leave benefits.
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 National Labor Relations Act.
We will make whole, with interest, all unit employees and former unit employees for the unlawful denial of sick leave benefits by providing them with the sick leave payments they were entitled to under the provisions of the expired contract.
We will make whole, with interest, all unit employees and former unit employees for the denial of vacation leave benefits by providing them with the vacation pay that, under the provisions of the expired contract, would have accompanied the employees’ use of their accrued vacation leave if we had not unlawfully denied the use of such leave.
University Moving & Storage Co.
Joseph P. Canfield, Esq. and Jennifer Y. Brazeal, Esq., for the General Counsel.
James B. Perry, Esq. and Jack VanHoorelbeke, Esq. (
Thomas Weldon, of
DECISION
Statement of the Case
Paul Bogas,
Administrative Law Judge. This case was
tried in
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following findings of fact and conclusions of law
Findings of Fact
i.
jurisdiction
The Respondent has an office and place of business in
In addition, the Respondent admits, and I find, that the
ii. alleged
unfair labor practices
A.
Background
The Respondent is a moving and storage company. It transports goods locally, long distance,
and internationally. The allegations in
this case concern the Respondent’s facility in
On June 2, 2003, the first workday following the
expiration of the contract, the Respondent initiated a lockout of all unit employees. That lockout was continuing at the time of
trial in April 2005.1 In response to the lockout, the
After initiating the lockout, the Respondent denied employees accrued sick leave and paid vacation benefits that those employees had earned through prelockout work. The Respondent also refused to issue certification releases that Johns and Nagel needed in order to qualify for work they were seeking with other employers.
B. Sick Leave and Vacation Benefits
1. Contract provisions
The collective-bargaining agreement that expired on May 31, 2003, provided unit employees with both sick leave and vacation benefits. The sick leave provision in the expired contract provides in relevant part:
The employer shall provide employees with one (1) year or more of seniority, five (5) days sick leave in each contract year. Employees must work sixty percent (60%) of the previous contract year to be entitled to all five (5) sick days in the subsequent contract year. Employees who do not achieve the sixty-percent (60%) shall be entitled to sick days on a pro-rata basis. . . . Employees off due to occupational illness or injury shall have such time included as time worked only to the extent of days missed in the contract year in which the above occurred, provided such employee would have otherwise worked.
* * *
Unused sick leave pay shall be paid to the employee at the end of each contract year and shall not be accumulated from year to year.
Newly hired employees shall receive a pro-rata share of sick leave pay based upon the number of months remaining between the date of the employee’s one (1) year anniversary of employment and May 31 of the applicable contract year.
General Counsel’s Exhibit 3 at pages 31–32. Under this sick leave provision, qualifying employees acquire a new allotment of sick days on the first day of each contract year—i.e., on June 1. If an employee has any unused sick leave at the end of the contract year—i.e., on May 31—that sick leave does not carry-over to the next year, but the employee receives a payout for the unused days.
The contract sections regarding vacation leave provide in relevant part:
Section 1. All employees must have been in the employ of the Employer for twelve (12) consecutive months and must have worked seventy-five percent (75%) of the total working days of said period in order to obtain any vacation. During the second and subsequent years, the man must have actually worked sixty-percent (60%) of the total working days of the year, but need not be employed for the full year to be eligible for the vacation.
Section 2. Vacation pay shall be as follows:
One (1) year employment . . . . . . One (1) week
Three (3) years employment. . . . . Two (2) weeks
Ten (10) years employment . . . . . Three (3) weeks
Fifteen (15) years employment. . . Four (4) weeks
Twenty-five (25) years of . . . . . . .Five (5) weeks
employment
Compensation for each of the first two (2) weeks of vacation shall be computed at forty-five (45) times the then prevailing straight time hourly rate.
Section 3. All vacations earned must be taken by employees and no employee shall be entitled to vacation pay in lieu of vacation. Employees who have not actually worked sixty percent (60%) of the total working days of the year but who have completed one (1) year of seniority, shall receive vacation on a pro-rata basis. This pro-rata entitlement shall also include employees who have quit, been discharged, or laid-off before they have worked their sixty-percent (60%); provided he has worked his first full year.
Section 4. Employee, upon the giving of a reasonable notice of not less than one (1) week to his employer, shall be given his vacation pay before starting on his earned vacation.
Section 5. Vacation pay shall be paid and may be taken only after expiration of twelve (12) consecutive months from the employee’s anniversary date. Vacations may be taken at any time of the year; provided, however, that only twenty percent (20%) of the employees in each classification shall be off at any one time unless otherwise mutually agreed. Where more than twenty (20) percent of the employees in each classification request vacation at the same time, seniority shall prevail.
Section 6. An employee who is on worker’s compensation shall have the time spent on worker’s compensation counted as days worked for purposes of earning a vacation entitlement; provided, however, the employee would have been scheduled to work. . . . By anniversary year, it is understood and agreed that the parties mean the time period from the anniversary date of any employees’ hire by the Employer until one year therefrom. An employee on worker’s compensation shall not have his time so spent counted as days worked in any anniversary year other than the year in which the injury occurs.
GC Exhibit 3 at pages 13–14. Under these provisions, the vacation benefit does not accrue on the anniversary of the contract’s effective date, as is the case with sick leave, but rather on a date that varies from employee-to-employee based on the individual’s hire date. Also unlike the sick leave entitlement, if an employee does not use his or her allotment of vacation days during the 12 months after it is awarded, the unused vacation days expire without a payout. The contract states that the Respondent will dispense vacation pay to employees who use accrued vacation leave, and describes how such vacation pay will be calculated.
For both sick leave and paid vacation leave, an employee must have at least 1 year of seniority in order to qualify for leave. To accrue the full allotment of leave the employee generally must work at least 60 percent of working days during the 1-year period at-issue, but if an employee works less than that percentage, he or she receives leave on a prorata basis. The exception is that during the first year of an individual’s employment he or she must work at least 75 percent of working days in order to qualify for any vacation leave at all.
2. Respondent
denies already-earned sick leave and
paid vacation leave to locked-out employees
Under the above provisions, the unit employees were entitled to be paid for any sick leave that they had accrued, but not used, during the contract year ending on May 31, 2003. Five of the unit employees had accrued sick leave remaining at that time—between 1 and 3 days each. Under the contract, unit employees also accrued a new allotment of sick days on June 1, 2003, based on their work during the previous 12 months.2 Employees with 1 year or more of seniority, who had worked at least 60 percent of working days during that period, received a new allotment of 5 sick days on June 1, 2003. Those who worked less than 60 percent of the time received a prorata allotment of the usual 5 sick days. On June 1, 2004, employees were entitled to a payout for the unused portion of that allotment.
As of May 31, 2003, 15 of the unit employees had accrued, but unused, vacation days. The number of unused vacation days remaining for individual employees ranged from as few as 2 to as many as 21. Qualifying employees also received a new allotment of vacation leave at their first anniversary date following the institution of the lockout. The maximum amount of vacation an employee can earn under the contract is 5 weeks, and the actual number an employee accrues depends on the number of years the employee has worked for the Respondent and the percentage of days he or she worked during the 12-month period leading up to the anniversary of his or her hire date.3
The Respondent has denied the above-described sick leave and paid vacation benefits to employees since the start of the lockout.
3. The
Company’s response’s to union and employee
inquiries about accrued sick and vacation leave
In 2003 and 2004, the
In a letter dated March 1, 2004, from Peterson to Weldon,
Peterson did not provide the leave information, but did state a position
regarding the question of employee vacation benefits. Peterson stated that employees were only
entitled to “paid vacation time” during the term of the collective-bargaining
agreement, and since the contract had expired on May 31, 2003, the Respondent
did not believe the vacation provisions were in effect and “d[id] not see how
any of the bargaining unit employees would be entitled to vacation pay.” Peterson further stated that “even if the
vacation provisions in [the contract] somehow continued beyond the contract’s
May 31, 2003 expiration date, we do not feel that those provisions entitle any
of the bargaining unit employees to any vacation pay,” since the contract
states that employees are not entitled to take vacation pay in lieu of
vacation. Peterson offered to discuss
the matter during the parties’ next collective-bargaining session. The letter made no explicit mention of sick
leave. In one of their meetings,
Peterson told union officials that the Respondent’s practice was to pay
employees who resigned from their positions for any accrued sick leave and
vacation leave they had left, but the
As of the time of a bargaining session on April 16, 2004, the Company had not yet responded to the information request, and at that meeting Weldon asked whether the Respondent had the information on vacation entitlement. Perry answered that the Respondent did not believe that the employees had “anything coming,” but that it could provide information on how much leave individuals had actually taken. The parties agreed on a form that the Respondent would use to report the vacation days and the sick leave days that each employee actually had taken as of May 31, 2003.6 The Respondent was also to indicate each employee’s hire date on the form. At that meeting, and at subsequent ones, Perry offered to discuss the issues regarding vacation and sick leave as part of the negotiations for a new contract, but Weldon declined to address the questions relating to the already-owed benefits in that context. By letter dated May 19, 2004, Peterson transmitted the completed vacation/sick leave form to Weldon. Using the information on that form, Weldon calculated the amount of unused vacation leave and sick leave each employee had as of May 31, 2003. Fifteen of the 18 unit members were owed paid vacation days, ranging in number from 2 to 21 days each. Five of the employees were owed sick leave—between 1 and 3 days each. As a group, the bargaining unit was owed a total of 132 paid vacation days and 8 sick leave days as of May 31, 2003. This does not take into account the new allotment of sick leave that employees accrued on June 1, 2003, or the new vacation leave that each employee accrued on his or her next anniversary date based on pre-lockout service.
Johns believed he was entitled to both vacation and sick days, and in April 2004 he sent a letter to the Respondent asking to be provided with those benefits. By letter dated April 22, 2004, Peterson responded that she had received the request, but said that “We do not believe that any vacation pay is owed to you and I must deny this request for pay.” Similarly, Earl sent a letter to Peterson requesting vacation and/or sick pay. By letter dated April 22, 2004, Peterson replied “We do not believe that any vacation pay is owed you and I must deny this request for pay.”
C. Certification
Releases for Johns and Nagel
1. Driver certification
The Respondent operates as an independent entity when performing local moves, but when performing long-distance moves7 it operates in affiliation with another company, North American Van Lines (NAVL). Not all of the Respondent’s drivers are authorized to perform the NAVL-affiliated/long-distance work. A driver seeking certification to perform such work must first submit an application to the Respondent, which the Respondent then transmits to NAVL for a determination as to whether the individual meets applicable guidelines. If NAVL and/or its parent corporation, SIRVA,8 conclude that the driver qualifies, then NAVL issues a safety number to the driver, which establishes that the driver is certified to perform NAVL-affiliated work while employed by the Respondent. The driver uses that safety number when performing long-distance work for the Respondent or any other moving company affiliated with NAVL or another SIRVA-owned van line. Long-distance drivers have the opportunity to work a greater number of hours than do drivers who perform local work exclusively. As a general matter, the pay for long distance work is higher than for local work.
Under the rules of SIRVA, if one of the Respondent’s NAVL-certified drivers wants to obtain work doing long distance moves for another company that operates under SIRVA’s umbrella, that driver must first obtain a release from the Respondent showing that his or her NAVL certification with the Respondent has been cancelled and that any outstanding issues with the Respondent regarding such things as money owed or missing paperwork have been resolved. The record shows that there are at least three long distance van lines under the SIRVA umbrella—NAVL, Global Van Lines, and Allied Van Lines. A certified driver with a moving company affiliated with any one of the SIRVA-owned van lines cannot begin doing long distance work for any other mover affiliated with one of those van lines unless the first moving company issues a written certification release. SIRVA’s certification release policy applies only to long-distance work, and only between movers that are under the SIRVA umbrella.9 Since well before the lockout, the Respondent’s practice was not to release a driver until that driver’s employment with the Respondent was terminated.
2. Johns
and Nagel denied work after Respondent
refuses to release them from certification
When the Respondent locked out the unit employees, a number sought work with other moving companies. Those who did included Johns and Nagel. Johns, a certified driver, applied for a position with Rose Moving and Storage (Rose), and was hired on January 5, 2004. For purposes of long-distance work, Rose is affiliated with Allied Van Lines (Allied), a SIRVA company, and therefore Johns could not become certified to perform long-distance work with Rose unless the Respondent first issued a written certification release. Johns submitted an application for Allied certification. On January 29, 2004, Allied informed Rose that before Johns could be certified he had to complete missing logbook entries for work performed on behalf of the Respondent on July 23–25, and August 2–4, 2003. Johns, however, had been locked-out by the Respondent on those dates and therefore had not performed any work that could be entered in his logbook. At any rate, in an effort to address this obstacle to certification with Allied, Johns submitted logbook entries noting that he was off duty on the dates in question. The Respondent did not provide an explanation as to why it had erroneously reported that Johns performed work on dates during the lockout.
On January 29 or 30, Johns tried to advance his effort to
become Allied-certified with Rose by submitting a letter to Jeff Moore, the Director of Qualifications for SIRVA, in which he
asked that his prior certification be cancelled even though he was not resigning
his position with the Respondent.
I don’t think that will work. If we allow [Johns] to go somewhere else without terminating with us the union will have real issues with that. If Allied wants to put him on, Allied should instruck (sic) him to terminate with University and we will all move forward from there. For some reason the employee wants to work with Allied but wants to stay in the union at [the Respondent]. This can not happen. Please have him terminate and then qualify with Allied.
On February 10,
Johns never personally contacted the Respondent to ask that he be released to work with Rose. However, the subject of the certification release sought by Johns was discussed during contract negotiations. At the February 5 bargaining session, counsel for the Respondent repeatedly told the union representatives that if Johns wanted to work at another company “all he had to do” was resign. The Respondent’s counsel also asked Weldon to inform employees that the releases would be issued if they resigned. During negotiations the union representatives consistently took the position that none of the unit members had resigned and that all of them intended to return to work for the Respondent once the lockout ended. At a bargaining session on April 16, counsel for the Respondent stated that it was his understanding that drivers had to terminate their employment before the Respondent would issue a release, and he asked whether Weldon had a different understanding. By this time the Respondent’s failure to execute a release for Johns was the subject of an unfair labor practices charge, and Weldon refused to discuss it in the context of negotiations over the terms and conditions for a new contract.
On May 6, over 5 months after
Nagel was another certified driver with the Respondent. After being locked out by the Respondent, Nagel sought to become a certified driver with Palmer Moving and Storage (Palmer)—another SIRVA-affiliated company, but he encountered roadblocks similar to those experienced by Johns. Palmer’s long-distance manager, Christina Borowski, had decided to hire Nagel as a certified driver, but was informed that the Respondent refused to execute the necessary release paperwork. At first Borowski was told, on December 2, 2003, that the problem was that Nagel had not submitted the required logbook entries for goods he transported for the Respondent on August 20–21, 2003. As with Johns, Nagel was locked out on the dates in question and therefore had not performed work for which logbook entries were required. The Respondent did not provide an explanation for this error and Borowski, a 25-year veteran of the moving industry, testified that she had never before seen a company demand logbook entries from a driver because work had been erroneously attributed to that driver.
The Respondent had not issued the release paperwork for
Nagel as of February 10, and on that date
On June 2, 2004, the Respondent issued the paperwork releasing Nagel to perform certified work with another SIRVA-affiliated company. In that paperwork, the Respondent did not state that Nagel’s employment had been terminated, but simply reported that since June 1, 2003, Nagel had not worked for the company due to a labor dispute. By the time the Respondent issued the release, Nagel no longer needed it, since he had found employment as a certified driver with a non-SIRVA moving company. Nagel never contacted the Respondent directly to ask that it release him to work for another SIRVA-affiliated moving company.
D.
Charge Filings
The Respondent contends that the allegations regarding the
denial of vacation and sick leave are time barred under Section 10(b), an
argument that necessitates a review of the charge filings underlying the
complaint.11 The record shows that the
E.
Complaint Allegations
The complaint alleges that the Respondent’s refusal to provide unit employees with vacation and sick pay owed under the expired contract is discriminatory in violation of Section 8(a)(3) and (1) of the Act, and a failure to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act. The complaint further alleges that the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily refusing to release information regarding Johns’ and Nagel’s employment with the Respondent that was necessary for those individuals to obtain certain other work during the ongoing lockout.
Analysis
1. Motion
to dismiss or defer allegations
regarding denial of leave
At the start of trial, the Respondent presented a motion to dismiss the complaint claims regarding vacation and sick leave benefits as untimely under Section 10(b), or, in the event that I did not dismiss those claims, to defer them to the grievance and arbitration procedures of the expired contract.12 Previously, the Respondent had petitioned the Regional Director of Region 7 of the Board to defer the claims regarding vacation and sick leave. The Regional Director denied that petition as well as the Respondent’s subsequent request for reconsideration. At trial, I took the Respondent’s motion under advisement. For the reasons discussed below, I now deny the Respondent’s motion.
a. Timeliness
Section 10(b) of the Act, states in relevant part: “[N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made.” The 10(b) period begins to run when the aggrieved party receives actual or constructive notice of the conduct that constitutes the alleged unfair labor practice. Concourse Nursing Home, 328 NLRB 692, 694 (1999). Notice, “whether actual or constructive, must be clear and unequivocal.” Salem Electric Co., 331 NLRB 1575, 1576 (2000); see also Patsy Trucking, 297 NLRB 860, 862 (1990) (notice to charging party whether actual or constructive must be “clear and unambiguous” to trigger 10(b) period). The party asserting the 10(b) defense bears the burden of showing such notice. Salem Electric Co., 331 NLRB at 1576; Carrier Corp., 319 NLRB 184, 190 (1995); Leach Corp., 312 NLRB 990, 991 (1993), enfd. 54 F.3d 802 (D.C. Cir. 1995).
In this case, the first charge that mentioned the denial
of vacation leave was filed on August 6, 2004.
That was well within the 6-month filing period that began on March 1,
2004—the date of Peterson’s letter announcing the Respondent’s position that
unit employees had no existing entitlement to “paid vacation time” and “vacation
pay.” The Respondent has not shown that
the
The Respondent argues that the
The Respondent has also failed to show that the charge regarding sick leave was untimely. The 6-month period should be calculated in this instance on the basis of the timely charge filed on August 6, 2004, not the September 29, 2004 amendment to that charge which first mentioned sick leave. Although the relevant portion of the August 6 charge referred to unlawful denial of the vacation leave benefit, not sick leave, I conclude that the sick leave allegation was sufficiently related to the August 6 allegation to make it appropriate to refer back to that earlier charge for purposes of determining timeliness. As the Board has held, allegations that involve events occurring more than 6 months prior to the filing of the charge are still considered timely if those allegations are “closely related” to the allegations made in a timely charge. Seton Co., 332 NLRB 979, 982–983 (2000); Nickles Bakery of Indiana, 296 NLRB 927 (1989); Redd-I, Inc., 290 NLRB 1115, 1116–1118 (1988); see also Ross Stores, Inc., 329 NLRB 573, 573 fn. 6 (1999), enf. denied in part 235 F.3d 669 (D.C. Cir. 2001) (the “closely related” standard applies both when the question is whether otherwise time-barred allegations in an amended charge relate back to the allegations of an earlier timely filed charge, and where the question is whether the allegations in a complaint are sufficiently related to those in a charge.).
To determine if allegations are closely related, the Board considers: (1) whether the allegations involve the same legal theory; (2) whether the allegations arise from the same factual