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,
Champion
Enterprises, Inc., d/b/a Champion Home Builders Co. and Carpenters Union Local
No. 1109, affiliated with United Brotherhood of Carpenters and Joiners of
America. Cases 32–CA–19152–1, 32–CA–19155–1, 32–CA–19181–1,
32–CA–19279–1, 32–CA–9344-1, 32–CA–19366-1, 32–CA–19424–1, 32–CA–19587–3, 32–CA–19587–4, 32–CA–19619–1, and 32–CA–19766–1
August 16, 2007
DECISION AND ORDER
By
Chairman Battista and Members Schaumber
and Walsh
On
January 17, 2003, Administrative Law Judge Mary Miller Cracraft issued the
attached decision.[1] The Respondent filed exceptions and a
supporting brief, and the Charging Party Union filed limited exceptions and a
supporting brief.
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 affirms the judge rulings, findings,[2]
and conclusions only to the extent consistent with this Decision and Order.[3]
i. introduction
The
Respondent builds prefabricated homes at a plant in
The
judge found that the Respondent committed several violations of Section 8(a)(1)
and (5), including unlawfully withdrawing recognition from the
However,
for the reasons stated below, we reverse the judge’s findings that the Respondent
solicited employees to report to management the names of prounion employees “who
bother them, [or] make crude or insulting remarks,” and violated Section
8(a)(1) by soliciting employees to report prounion employees who “interfere
with their ability to work.” In
addition, for the reasons stated below, we reverse the judge’s finding that the
Respondent violated Section 8(a)(5) by withdrawing recognition from the
ii. unfair labor practices
A.
Alleged Solicitation of Employees to
Report Pro-Union Employees’ Conduct
On
October 12, the Respondent’s plant manager, Jim Stewart, gave a speech to
employees that included the following statements:
In
recent weeks, I have had complaints from employees about co-workers bothering
them to try and get them to join or support the union. I have heard that some employees
are being told that if they don’t join the union, they will be fired. I have also heard reports of employees making
crude and very insulting statements about co-workers with whose views they
disagree. I want to talk about this.
Each
of you has the right to decide for yourself if you want to join the union. Our Company respects that right. Employees also have the right to try to
convince each other that they should or should not support the union. We respect that right too.
But,
employees do not have the right to interfere with the work of their
co-workers, whether they are talking about the union or about baseball. And they certainly do not have the right to threaten someone because of his or
her position on the
I
cannot prohibit your co-workers from talking to you about the union issue. Frankly, each of you has the right to express
your opinions on the union to each other.
People have the right to argue for their position. An employee has the right to say to his co-worker
or employee: “you will someday wish you had supported the union.” Because that is just a matter of
opinion. However, no one has the right
to threaten a co-worker with harm if he or she does not support the union.
So,
if someone is interfering with your ability to do your work, let your foreman
know. We will put a stop to it.
If
someone is threatening you with harm or saying that you are going to lose your
job if you don’t join the
The
judge interpreted Stewart’s speech as soliciting employees to report on union
supporters’ activities whenever they subjectively believed that they were being
“bothered,” “insulted,” or “interfered with.”
While she concluded that the speech was open to varying interpretations,
she held that the Respondent, as the author, had to bear the burden of any ambiguities
in its content. Noting that the Board
has determined that asking employees to report “threatening” behavior is not
unlawful, the judge nonetheless found, and our dissenting colleague agrees,
that the speech as a whole solicited reporting on “lawful as well as unlawful
activities” and thereby violated Section 8(a)(1). We find to the contrary.
In
our view, both the judge and the dissent read out of context Stewart’s
statements about employees “bothering” their coworkers and making “crude and
very insulting statements.” Stewart
plainly did not instruct employees to report when they felt subjectively
bothered or insulted by union supporters’ activities. Instead, he simply repeated complaints employees
made to him regarding the conduct of union supporters. The only things Stewart asked employees to
report were “if someone is interfering with your ability to do your work” or “if
someone is threatening you with harm or saying that you are going to lose your
job if you don’t join the
It
is well established that in the interest of maintaining production and workplace
discipline, employers can prohibit activity that interferes with work or which
causes neglect of job performance.[10] We find that Stewart’s use of the phrase “interfering
with your ability to do your work” encompassed only unprotected activity and
was sufficiently specific that the employees would reasonably understand its
meaning, particularly when read in context with the balance of the speech.[11] Thus, the Respondent did not violate the Act
by advising employees to report conduct that interfered with their work. Similarly, Stewart asked employees to report
threats. It is well settled that an
employer may lawfully assure employees that it will not allow them to be
threatened, and it may ask them to report such conduct because threats directed
at employees are properly within the Respondent’s legitimate concerns.[12] Stewart’s speech thus asked only that employees
report unprotected conduct to management. Such requests do not reasonably tend
to chill employees in the exercise of their Section 7 rights. On the contrary, they assist in assuring
employees the free exercise of those rights.
Tawas Industries, 336 NLRB 318 (2001),
and CMI-Dearborn, Inc., 327 NLRB 771
(1999), relied on by the judge in support of her finding that the speech was
unlawful, are not to the contrary. Tawas involved an employer’s statement
that if “employees feel [that] they are being subjected to threats and coercion”
because of the “express[ion of] their views” on union affiliation, the
respondent would “take the appropriate action.” 336 NLRB at 322. CMI-Dearborn
involved an employer request to report any “threats, coercion or scare tactics
used by the union pushers.” 327 NLRB at
775. In each case, the focus was on the
use of the word “coercion” (and in
CMI-Dearborn on “scare tactics” also) as the basis for the violation. The Respondent used no such
words here.[13]
Moreover,
in this case, unlike in Tawas, the
Respondent explicitly affirmed that it would respect the right of employees to
solicit (and even argue) for the
In
sum, we find that Stewart’s speech taken as a whole did not solicit reports of
employees’ protected Section 7 activities, but only sought information
regarding instances in which union solicitors interfered with plant production
or made unprotected threats of harm and job loss. Accordingly, we do not find that Stewart’s
speech violated Section 8(a)(1) and we dismiss this complaint allegation.
B.
Employee Layoffs
On
October 18, Stewart announced to employees that most of the bargaining unit
would not work the following day.[14] That layoff lasted 1 day. Stewart did not provide the
We
agree with the judge that the Respondent had an obligation to notify and
bargain with the Union prior to the layoff, and that the Respondent violated
Section 8(a)(5) by failing to provide the
The
Respondent argues that the October 18 layoff was not a unilateral change over
which it was required to bargain because the layoff was consistent with its
past practice of employee layoffs.
However, the sole evidence of past practice adduced by the Respondent
relates to two plant shutdowns in 2001.
We find that these two instances of layoffs associated with plant
shutdowns are insufficient to establish a generalized past practice of layoffs
in response to slowdowns in work, particularly when Stewart admitted that the
Respondent faced a shortage of work orders nearly every day. In sum, the paucity of evidence submitted in
this case is insufficient to demonstrate a discernable and consistent past
practice regarding the implementation of temporary layoffs. Thus, we conclude that the Respondent unlawfully
failed to bargain over the layoff as required by the Act.[16]
C.
Withdrawal of Recognition
On
April 17, 2002,[17] the
Respondent received a petition, signed by 89 of the 167 bargaining unit
employees, stating that they no longer desired union representation. The Respondent withdrew recognition the
following day. Consistent with Board
precedent that no party challenges in this proceeding, the judge concluded that
the Respondent’s withdrawal was based on evidence that the
First,
all but one of the violations occurred long before the employee petition was
signed and Respondent withdrew recognition in April 2002. Thus, the Respondent’s confiscation of union
materials from an employee’s workstation occurred in October, the Respondent’s
failure to bargain involved a 1-day layoff in October, and Plant Superintendent
Scott’s threat to employee Sahagun that the
Second,
we do not find that the nature of the violations supports a finding of taint.
The Respondent’s confiscation of union materials from an employee workstation
and Plant Superintendent Scott’s threat to employee Sahagun were isolated
events involving one employee each. The
General Counsel presented no evidence of dissemination to any other
employees. As to the Respondent’s
refusal to provide information requested on February 11, as discussed above,
there is no evidence that employees learned of this refusal before expressing
their disaffection.
Third,
there is no showing that the unlawful conduct had a tendency to cause employee
disaffection toward the
The
dissent states that the Respondent’s unfair labor practices were of a serious nature. Acknowledging that two of the violations were
isolated, it focuses on the 1-day layoff and attendant actions, and Stewart’s
speech in October. However, as we have
discussed above, we do not find that Stewart’s speech violated Section
8(a)(1). Further, while the dissent is
correct in noting that the 1-day layoff affected the entire bargaining unit, it
was an isolated and brief event that occurred 6 months before the petition.
Thus, we do not find that it would have a lasting detrimental effect on employees
and diminish support for the
Finally,
there is no evidence that the foregoing unlawful conduct, occurring 5–6 months
before the petition was signed, had an effect on employee morale, organizational
activity or membership in the
D.
Refusals to Provide Requested Information
The
Following
a lawful withdrawal of recognition, an employer no longer has a duty to provide
a union with requested information.[22] The Respondent’s lawful withdrawal of
recognition from the
The
E.
Wage Increase
On
April 19, the Respondent announced a wage increase for all the unit
employees. As found above, the
Respondent lawfully withdrew recognition from the
ORDER
The
National Labor Relations Board orders that the Respondent, Champion
Enterprises, Inc., d/b/a Champion Home Builders Co.,
1.
Cease and desist from
(a)
Confiscating union materials from an employee workstation.
(b)
Stating to an employee that by picketing the Respondent’s distributor, employees
were going to force the Respondent out of business.
(c)
Announcing to all employees that it would shut down because of lack of work,
laying off a majority of unit employees, selectively recruiting other unit
employees to perform unit work, and utilizing nonunit personnel including
foremen to perform unit work during the layoff, without first notifying the
Union and without affording the Union an opportunity to bargain.
(d)
Refusing to provide information to the
(e)
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)
Furnish the
(b)
Make whole all the employees who were laid off on October 19, 2001, for any
loss of earnings and other benefits they may have suffered as a result of their
unlawful 1-day layoff, less any net interim earnings, plus interest.
(c)
Within 14 days after service by Region 32, 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.
Dated,
______________________________________
Robert
J. Battista, Chairman
______________________________________
Peter
C. Schaumber, Member
(seal) National
Labor Relations Board
Member Walsh,
concurring in part and dissenting in part.
Contrary to my colleagues, I would adopt the judge’s unfair labor practice findings in their
entirety. Thus, I join my colleagues in
adopting the judge’s findings that the Respondent unlawfully confiscated union
surveys from an employee and threatened employees that their protected
picketing activity would force the Respondent out of business. I also agree that the Respondent committed
four separate violations of its duty
to bargain related to its October 19 layoff of unit employees, though I write
separately to emphasize that the Respondent’s past practice defense to those
violations is irrelevant. Unlike my
colleagues, however, I would affirm the judge’s additional findings that the
Respondent unlawfully (1) solicited employees to report the
protected activities of other employees to management, (2) withdrew recognition from the Union on
April 18, 2002, and, after that time, (3) refused to comply with the
i. the
solicitation of employees to report the
protected activities of other employees to
management
Contrary to my
colleagues, the judge correctly found that the Respondent violated Section
8(a)(1) on October 12 when Plant Manager Jim Stewart solicited employees to
report the protected union activities of other employees to management. On that date Stewart read a written statement
to employees, which, by its terms, was a response to “complaints from employees
about co-workers bothering them to try and get them to join or support the
union” as well as “reports of employees making crude and very insulting statements
about co-workers with whose views [about the Union] they disagree.” The statement additionally encouraged each
employee to tell his foreman if someone was “interfering with your ability to
do your work” or “threatening you with harm.”1
Established Board precedent fully
supports the judge’s finding of a violation.
“It is well settled that the Act allows employees to engage in persistent
union solicitation even when it annoys or disturbs the employees who are being
solicited.” Ryder Transportation Services, 341 NLRB 761, 761 (2004), enfd. 401
F.3d 815 (7th Cir. 2005). In turn, employers
violate Section 8(a)(1), “when they invite their
employees to report instances of fellow employees’ bothering, pressuring,
abusing, or harassing them with union solicitations.” Greenfield
Die & Mfg. Corp., 327 NLRB 237, 238 (1998). Such
invitations “chill even legitimate union solicitations, which do not lose their
protection simply because a solicited employee rejects them and feels ‘bothered’
or ‘harassed’ or ‘abused.”’
Here, the judge properly
found that Stewart’s speech, viewed in its “total context,” contained an
unlawful invitation to report protected activity to management. In particular, the judge appropriately relied
on the references Stewart made in his opening remarks about having received
complaints that some employees were “bothering” their coworkers “to try and get
them to join or support the union” and harassing other employees by “making
crude and very insulting statements about coworkers” with whom they
disagreed. Stewart followed those remarks
by declaring, “I want to talk about this.”
Accordingly, Stewart’s express reason for speaking with the employees
was to address complaints that included those matters. Given that emphasis, and that Stewart failed
to explain what he meant by “bothering” coworkers, or “making crude and very
insulting statements about coworkers” in the context of the union organizing campaign,
employees listening to the speech could reasonably believe that Stewart’s later
repeated instruction, to “let your foreman know,” included the reporting of
such protected activities whenever
they felt subjectively bothered, insulted, or interfered with. Accordingly, the judge correctly found that Stewart’s statement invited
employees generally to inform on fellow workers’ protected activities, and
thereby violated Section 8(a)(1). See Tawas
Industries, 336 NLRB 318, 322 (2001); CMI-Dearborn, Inc., 327 NLRB 771, 775–776
(1999).
Reversing the judge’s finding of an unlawful solicitation, my
colleagues claim that the judge “took out of context” Stewart’s statements
about employees “bothering” their coworkers and making “crude and very insulting
remarks,” asserting that Stewart “did not expressly instruct employees to
report when they were bothered or insulted” but was “simply repeating
complaints employees made to him.” In
fact, it is my colleagues who have taken those statements out of context;
indeed, they have effectively taken them out of Stewart’s speech
altogether. Stewart’s references to reports
of employees “bothering” their coworkers and making “crude and very insulting
remarks” clearly illustrated for employees the type of conduct he was concerned
about. It would have been entirely
reasonable for the employees to then interpret the remainder of Stewart’s
remarks with those examples in mind. By
dismissing Stewart’s express references to those examples, my colleagues have
deviated from the Board’s usual course of considering the total context in
which an employer invites employees to report employee activities to
management, along with all relevant surrounding circumstances. See, e.g., Greenfield Die & Mfg. Corp., 327 NLRB at 238 (“letter taken as
a whole” was unlawful, despite being a statement against “threatening and
coercing” coworkers).
My colleagues also err by relying on Stewart’s statements that the
employees have the right to solicit and argue on behalf of the union. The presence of lawful statements does not
mitigate the impact of an unlawful solicitation requesting that employees report the protected
activities of other employees to management. See, e.g., Liberty
House Nursing Homes, 245 NLRB at 1197 (finding both lawful and unlawful invitations
to report coworkers’ activities).
Indeed, in Tawas Industries,
the Board found that the employer unlawfully solicited employees to report other
employees’ protected activities based on the total context in which the
communication was made,
and despite the employer’s statements that “employees have the right to support
or not support the union,” and “have the right to express” their views on
unionization. 336 NLRB at 322.
For all of these reasons, I would adopt the judge’s finding that
the Respondent violated Section 8(a)(1) by soliciting employees to report the
protected activities of other employees to management.
ii. the unilateral layoff of the majority of unit
employees, and related unlawful actions
On October 18, 2 weeks after confiscating union material
from an employee, and less than 1 week after unlawfully soliciting its
employees to report the protected activities of their coworkers, Plant Manager Stewart
unexpectedly announced to the employees
that its Lindsay facility would be shut down on Friday, October 19, and
possibly Monday, October 22, and they would all be laid off. Following that meeting, the Respondent in
fact unilaterally laid off a majority
of unit employees from work on October 19, but selectively recruited a few employees
to work that day, and also employed foremen and supervisors to perform the unit
employees’ work. The Respondent took all
of those actions without prior notice to the Union and without affording the
My colleagues affirm the judge’s findings that the Respondent’s
failure to provide the Union with notice and the opportunity to bargain over the shut down of the plant,
the layoff of unit employees, the selection of unit employees for work during
the shutdown, and the performance of bargaining unit work by supervisors each
constituted a separate violation of Section 8(a)(5) and (1) of the Act. I agree with those findings, but only for the
reasons given by the judge.
In
upholding the judge’s findings, my colleagues—although not reaching the issue
substantively—attach some significance to the Respondent’s affirmative defense
asserting that it lawfully could take such actions based on a theory of past
practice. I would not entertain such a
defense. Under
Board precedent, the Respondent’s assertion of a past practice concerning the
unlawful layoffs and related actions is irrelevant to its duty to bargain with
the
iii.
the unlawful withdrawal of recognition
On April 18, the Respondent withdrew recognition from the
An employer may not withdraw recognition from a union in the wake
of unremedied unfair labor practices that have the tendency to cause employee
disaffection from the union. See RTP
Co., 334 NLRB 466,
468 (2001), enfd. 315 F.3d 951 (8th Cir. 2003).
The Board examines the following factors to determine if a
causal connection exists between the unremedied unfair labor practices and the
subsequent expression of employee disaffection from the union: “(1) [t]he
length of time between the unfair labor practices and the withdrawal of recognition;
(2) the nature of the illegal acts, including the possibility of their
detrimental or lasting effect on employees; (3) any possible tendency to cause
employee disaffection from the union; and (4) the effect of the unlawful
conduct on employee morale, organizational activities, and membership in the
union.” Master Slack Corp., 271 NLRB at 84.
The necessary causal connection is present here, and warrants the
finding that the Respondent’s withdrawal of recognition was unlawful.
With regard to timing, the Respondent withdrew recognition on
April 18, 2002, 6 months after it began committing unfair labor practices in
October 2001. Given the nature of the
unremedied unfair labor practices, that 6-month period of time is insufficient to diminish the lasting effects of the
Respondent’s unlawful conduct on the employees, and therefore the unfair labor
practices are not too remote in time to defeat a causal connection. See, e.g., Beverly Health & Rehabilitation Services, 346 NLRB No. 111 (2006) (employee poll
showing loss of majority support was tainted by unlawful conduct that occurred
6–8 months beforehand); Penn Tank Lines,
336 NLRB 1066 (2001) (withdrawal of recognition was unlawful because it was
based on decertification petition tainted by employer’s unlawful actions that began
5 months earlier); Williams Enterprises, 312 NLRB
937, 939 (1993), enfd. 50 F.3d 1280 (4th Cir. 1995) (4 months between the employer’s
unfair labor practices and the decertification petition not too remote in
time).
Overall, the Respondent’s unfair labor practices were of a serious
nature tending to have a lasting detrimental effect on employees and to
diminish support
for the
Within the space of a week in October, the Respondent took a quick
succession of unlawful actions that affected the entire bargaining unit and
delivered the obvious messages that the Respondent had the discretion to freely
act on its own, and that the union was inconsequential in its role as their bargaining
representative. First, on October 12, Plant Manager Stewart
made a speech at a meeting of all employees that
unlawfully solicited them to report their coworkers’ union activities to management,
and promised that he would “put a stop” to those activities. Just days later, and again at a meeting of
all unit employees, Stewart suddenly announced to the employees, with less than
a day’s notice, that they would all be laid off from work on Friday, October
19, and possibly also on Monday, October 22, and that the plant would shut
down. This strong demonstration to the
employees of the Respondent’s unilateral power to act over their terms and
conditions of work was quickly followed by its unilateral layoff of a majority of unit employees, its selective recruitment
of a few employees to work on October 19, and its unilateral decision to give
the work of the unit employees to supervisors and other nonunit personnel.2
All of these actions directly affected all unit employees, and were of a
nature to seriously foster employee disaffection from the
The final two Master Slack
factors focus on the effect of the employer’s unlawful conduct on protected employee
activities. Here, the Respondent, by
taking all of its unilateral actions relating to its unlawful layoff of unit
employees, and by coercively soliciting unit employees to solicit their
co-workers’ union activities so that it could “put an end” to them, ‘“minimize[d]
the influence of organized bargaining’ and ‘emphasiz[ed] to the employees that
there is no necessity for a collective-bargaining agent.”‘
iv. the unilateral wage increase and the
refusals to provide information
On April 20, the Respondent implemented an across-the-board
wage increase of 61 cents per hour for all unit employees, and did so without
first notifying the Union of its intention to increase wages or providing the
Dated,
______________________________________
Dennis
P. Walsh, 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 confiscate Carpenters
Union Local No. 1109 materials from an employee workstation; or state to an employee
that by picketing our distributor, employees were going to force us out of
business.
We will not announce to all
employees that we will shut down because of lack of work, or lay off a majority
of unit employees, selectively recruit other unit employees to perform unit
work, and utilize nonunit personnel including foremen to perform unit work
during the layoff, without first notifying the Union and affording the Union an
opportunity to bargain.
We will not refuse to provide
relevant requested information to the
We will not in any like or related
manner interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
We will provide the
We will make whole all the
employees who were laid off on October 19, 2001, for any loss of earnings and
other benefits they may have suffered as a result of their unlawful 1-day layoff,
less any net interim earnings, plus interest.
Champion
Enterprises, Inc., d/b/a Champion Home Builders Company
Valerie Hardy-Mahoney, Esq. and Karen Ann Seidenstein, Esq., for the General Counsel.
Lindberg Porter Jr., Esq. and Jennifer Jech Simonson, Esq. (Allen
Matkins Leck Gamble & Mallory LLP), of
Allan
Crawley, Esq., of
Paul Bradshaw, Senior Field Representative, Organizing Department, for the Charging Party.
DECISION
Mary Miller
Cracraft, Administrative Law Judge.
This case was tried in
On the entire record, including my observation of the demeanor of the witnesses,2 I make the following
Findings of Fact
i.
jurisdiction
Respondent is a