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,
Cast-Matic Corporation d/b/a Intermet
Stevensville and International Union,
United Automobile, Aerospace and Agricultural Implement Workers of
September 17, 2007
DECISION AND ORDER
By Members Schaumber, Kirsanow, and Walsh
On July 21, 2005, Administrative Law Judge Earl E. Shamwell Jr. issued the attached decision. The Respondent filed exceptions and a brief, and the General Counsel filed an answering brief. The Respondent filed a reply. The General Counsel also filed cross-exceptions and a brief, and the Respondent filed an answering 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 has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this Decision and Order.2
i.
introduction
This case concerns the alleged continuation of unfair labor practices directed at the Respondent’s production and maintenance employees who supported the Union during the organizational campaign in issue in Intermet Stevensville, 350 NLRB No. 94 (2007) (Intermet I). After finding that the Respondent committed numerous violations of Section 8(a)(1) and (3) of the Act, the judge in Intermet I recommended that the Board issue a Gissel3 bargaining order. Based on that bargaining order, the complaint here alleged, among other things, that the Respondent violated Section 8(a)(5) of the Act by refusing to bargain and provide information to the Union, dealing directly with its employees, and making unilateral changes in its employees’ terms and conditions of employment. The complaint also alleged that the Respondent violated Section 8(a)(3) by discriminating against several employees, most of whom were actively involved in the organizational campaign in Intermet I.
The judge found that the Respondent violated Section 8(a)(3) and (5) of the Act in various respects. Pursuant to our decision in Intermet I, where we reversed the Gissel bargaining order, we reverse the judge’s findings of violations of Section 8(a)(5) based on that bargaining order.4 Further, as discussed below, we reverse most, but not all, of the judge’s findings of violations of Section 8(a)(3).
ii. factual
background
Since 2001, the Respondent has produced aluminum die cast
automobile parts at its facility in
The production of automobile parts required a totally new and high-tech casting process, which made significant use of computers, robotics, and other automated processes. The new process required all new machinery, including furnaces, crucibles, and robotics, and a complete renovation of the plant. None of the old production equipment was used in the new process. Nevertheless, with few exceptions, the Respondent’s employees charged with maintaining the old equipment were retained to maintain and service the new equipment.
Implementation of the new process required capital expenditures of approximately $10 million. Initially, the Respondent’s corporate leadership was not receptive to the change, believing that the new products would be neither marketable nor profitable. Through the efforts of Joseph Barry, the Respondent’s plant manager, corporate management was convinced to embark on the new business. However, acceptance of the plan carried with it the expectation of a significant return on the parent corporation’s investment.
The new process and the new equipment required employees to learn new skills related to the new production process and maintenance of the new machinery. Accordingly, before the Respondent implemented the new process, Barry held group meetings, informing employees that it was necessary that they gain essential skills in order to justify the large capital investment the corporate parent had made in the Stevensville plant.
The Respondent began producing automobile parts using the new process around June 2001, with a view to increasing production for the 2002 automobile model year, which debuted in September 2001. The first full year for the new process and products was anticipated for the 2002 model year.
iii. unfair
labor practices
A. Alleged Violations of Section 8(a)(5)
Relying on the Gissel
bargaining order recommended in Intermet
I, the judge found that the Respondent violated Section 8(a)(5) and (1) by
unilaterally changing terms and conditions of its employees’ employment,
dealing directly with its employees, refusing to provide information requested
by the Union, and refusing to bargain with the Union. We disagree.
In light of our reversal of the recommended remedial bargaining order in
Intermet I, we find that the
Respondent did not have an obligation to bargain with the
B. Alleged Violations of Section 8(a)(3)
1. Constructive discharges of Baker, Tebo, and Penley
The judge found that the Respondent constructively discharged foundry technicians Henry Baker, Sylvester Tebo, and Randy Penley on June 24, August 26, and September 4, 2003, respectively, and thereby violated Section 8(a)(3) and (1) of the Act.6 We disagree.
As more fully explained in the judge’s decision, during early 2003, Penley, Tebo, and Baker worked together in the foundry on the first shift. They oversaw five to seven metal furnaces, with Penley handling furnace duties, Baker handling de-gas operations, and Tebo transporting molten metal from the foundry to the casting machines. In the spring and summer of 2003, the Respondent assigned them new duties, including duties relating to testing the quality of the metal used in the Respondent’s production process. At the same time, pursuant to the Respondent’s decision to reduce one foundry worker on each shift and to run the foundry often with just one worker, the Respondent also required each employee to perform all of the functions usually performed by the foundry team. Each eventually quit; they all testified that, among other reasons, they quit because they simply could not handle the work that was being assigned to them.7
In the judge’s view, each of these employees quit because of the numerous unilateral changes the Respondent made in his job duties. Although he determined in each instance that the changes in job duties were not discriminatorily motivated,8 the judge nevertheless found that the Respondent’s treatment of these employees was such that it “forced [them] to make the Hobson’s Choice of leaving their jobs or forfeiting their statutory rights in order to remain employed under the working conditions unlawfully set by their employer.” Goodless Electric Co., 321 NLRB 64, 68 (1996). The judge explained:
[They] were unilaterally tossed from one job assignment to
the other and had made complaints to management about the matter. If the
. . . .
This, in my view, is an instance of a Hobson’s choice that the Board would find violative of Section 8(a)(3).
We disagree with the judge’s analysis because, even
assuming the validity of the “Hobson’s Choice” theory of constructive
discharge, that theory is not applicable here. The Respondent did not condition
its employees’ continued employment upon their “abandonment of . . . the right
to bargain collectively through representatives of their own choosing.” Superior
Sprinkler, 227 NLRB 204, 210 (1976); see also Goodless Electric, supra at 67–68.
Indeed, as we found in Intermet I,
the
Thus, we find that the Respondent did not constructively discharge foundry employees Baker, Tebo, or Penley. Accordingly, we dismiss these allegations.
2. Maintenance technicians’ “new” job descriptions
The judge found that the Respondent violated Section 8(a)(3) and (1) in May and June 2002 by issuing “new” job descriptions to the maintenance technicians in response to their active involvement in the union organizing campaign. We disagree.
The Respondent created the maintenance technician position and accompanying job description in 1998, when it operated under the old business. The new position offered maintenance department employees more money, but also changed the direction of the job to meet the needs of a more automated manufacturing process. That change was consistent with Barry’s concern that the Respondent’s old business and the associated production process were not profitable and needed to be phased out.
The Respondent issued a new maintenance technician job description in July 2001. It summarized the position as follows: “The Maintenance Technician is responsible for maintaining the equipment and facilities to ensure minimum downtime and maximum life[.] These responsibilities include but are not limited to: installation, preventive service, troubleshooting, and repair of equipment and facilities.” This job description also listed 22 skill-related duties and responsibilities. The judge found “the revised [job] description did not include material changes in the basic skills associated with the maintenance tech position as envisioned by the 1998 description. However, the revised description placed greater emphasis on automation and electronic skills in keeping with the technology associated with the new production process.”
In May and June 2002, maintenance technicians Mark Cook, Robert Crosby, Ronald Wagner, George Ludwig Jr., and William Shembarger received their first performance reviews since the new production process was implemented in June 2001.10 The Respondent attached a copy of the 2001 job description to each of these reviews. On each one, Supervisor and Facility Manager Dave Patterson wrote notes concerning the status of the employee’s acquisition of, and established time targets by which he was to acquire, the skills listed in the job description. For each of the maintenance technicians, Patterson’s notes indicated that he had failed to acquire many of the skills necessary to maintain the new machinery.
Prior to receiving their May and June 2002 evaluations, the maintenance technicians had not seen the 2001 job description. Also, the Respondent had not given them deadlines by which to acquire the skills listed in their job descriptions. However, the maintenance technicians did not dispute that they had not attained the skills necessary to provide maintenance services for the new machinery. Indeed, Shembarger and Crosby testified that they had not attempted to attain skills relating to the new machinery.
The judge determined that the Respondent’s issuance, in
May and June 2002, of the 2001 job description to the employees was
unlawful. In contradiction of his
earlier finding that the 2001 job description “did not include material
changes,” he found that the job description attached to the May and June 2002
reviews contained “new” job requirements, which, for the first time, established
time targets for acquisition of job-related skills.11
Then, after finding that the General Counsel had met his initial burden
to show that the employees’ union conduct was a substantial or motivating
factor in the issuance of the 2001 job description,12 the judge determined that the
Respondent’s defense, i.e., that the changes in the 2001 job description were
required by the change in business and technology, was a pretext for covering
up “its real intention to strike at the Union and its supporters and to
undermine support for the
We disagree. Even assuming that the General Counsel met his initial burden under Wright Line, we find that the Respondent demonstrated that it would have issued the 2001 job description absent the maintenance technicians’ union activities. The Respondent revised the job description in July 2001, coinciding almost perfectly with its implementation of the new manufacturing process, and well before it became aware of any union activity in its facility.13 As the judge found, the 2001 job description did not include material changes in the skills associated with the maintenance technician position, but merely “placed greater emphasis on automation and electrical skills in keeping with the technology associated with the new production process.” In order to maintain the new production machinery, the maintenance technicians needed to obtain these skills. Thus, the issuance of the 2001 job description was merely a necessary and integral step in the Respondent’s lawfully adopted plan to change its business.
The Respondent also demonstrated that it would have established deadlines by which the maintenance technicians were to acquire the skills required by the new machinery even absent their union activity. The maintenance technicians were not evaluated during the first year of the new business. During that time, the Respondent provided opportunities for on-the-job and formal training relating to maintenance of the new machinery. The maintenance technicians had not attained many of those skills within that first year. In light of these circumstances, the Respondent’s imposition of the deadlines was another necessary step in its implementation of the new business.
In this vein, we disagree with the judge’s determination
that the Respondent did not attempt to transition the maintenance technicians
to the new machinery until after the
3. Layoff
and reassignment of maintenance
technicians
The judge found that the Respondent violated Section 8(a)(3) and (1) on May 9, 2003 when it laid off Shembarger and reassigned Cook and Ludwig Jr., and again on June 17, 2003, when it laid off Crosby. For the reasons that follow, we agree.
As the judge more fully explained, the Respondent’s financial situation in May 2003 necessitated cost-savings adjustments. During the first quarter of 2003, the Respondent’s sales of its new product were not reaching the levels Barry had estimated when preparing the 2003 budget. In spite of the lower sales, Barry decided to take a risk and build inventory during this quarter, mainly to keep the employees employed and to give the Stevensville plant an appearance of strength. His hope was that he could start selling this inventory in the second and third quarters of 2003. Various factors conspired to frustrate Barry’s plans, and, by early April 2003, the Respondent found itself in a financial crisis.
Accordingly, in early May 2003, Barry undertook cost-saving measures which included staff cuts, redistributing regular employees, and eliminating temporary employees. Barry consulted with each department head to determine how best to achieve savings within the department. With respect to the maintenance department, Department Head Patterson recommended that the maintenance technicians be laid off because the machines were new and did not require much maintenance and, because of the unrealized sales of inventory, there would be fewer machines running and requiring servicing.
On May 9, 2003, Patterson and Human Resources Manager Mitchell Maze met with maintenance technicians Shembarger, Cook, and Ludwig Jr. Patterson told them that, because sales were slow, the Respondent was taking measures to cut costs. Accordingly, Patterson asked each to choose between taking a voluntary layoff and accepting a job, with a reduction in pay, on the final pack line.15 Shembarger refused the job on the final pack line and was laid off, but both Cook and Ludwig Jr. accepted the reassignment.
On or about June 2, 2003, the Respondent hired six new regular hourly employees, including two, Brian Stone and Ryan Lee, who, as electrical controls technicians, performed maintenance work like that performed by employees in the maintenance technician classification. Cook and Crosby testified that they witnessed Valer Pascanu, another maintenance technician who had recently been promoted to maintenance engineer, performing traditional maintenance technician work shortly after the layoffs as well.
Subsequently, on June 17, 2003,
At the hearing, Barry testified that the maintenance technician layoffs were made in an effort to reduce production. He also testified that there was less maintenance work needed because fewer machines were in operation, and, consequently, that fewer maintenance technicians would be required for preventive maintenance services.
Barry first testified that he did not know whether the layoffs were conducted by seniority within the plant or within the job classification. Later, he testified that the layoffs went “by job classification, by shift, by seniority.” Even later, he testified that they were conducted by plantwide seniority. Patterson, on the other hand, testified that the maintenance technicians were laid off according to their seniority within the classification, i.e., the employees with the least time in the classification were the first to be laid off.
The judge determined that the layoffs of Shembarger and
We agree with the judge that the General Counsel met his
initial burden here. The Respondent was
aware that Shembarger, Crosby, Cook, and Ludwig Jr. were active supporters of
the
Despite its economic situation in May 2003, the Respondent has failed to demonstrate that it would have laid off Shembarger and Crosby, or reassigned Cook and Ludwig Jr., in the absence of their protected activities. We agree with the judge that the Respondent has proven that the economic situation at the Stevensville plant was such that cost-savings adjustments were necessary, and that a reduction of labor costs was a reasonable response to that situation. Nevertheless, it still falls to the Respondent to demonstrate by a preponderance of the credible evidence that it would have taken the same action against the same individuals even in the absence of their union activities. See Hoffman Plastic Compounds, Inc., 306 NLRB 100, 106 (1992), enfd. 208 F.3d 229 (D.C. Cir. 2000), revd. on other grounds 535 U.S. 137 (2002) (even where employer is able to prove that layoffs are justified by economic reasons, Wright Line burden is to demonstrate that specific employees would have been selected for layoff regardless of their union activities). The Respondent has failed to meet this burden.
First, the Respondent’s proffered reasons for deciding to conduct layoffs in the maintenance technician classification are suspect.18 Barry testified that the Respondent laid off the maintenance technicians because sales were low and production needed to be cut. When questioned by the judge on this point, Barry was unable to explain the connection between cutting production and the decision to lay off maintenance employees. Usually, when layoffs in production and maintenance units occur, maintenance employees are the last to go; this is because the remaining employees cannot use machinery unless it is working. Flexsteel Industries, 316 NLRB 745, 757 (1995). The Respondent did not lay off any production employees at the time it laid off the maintenance technicians.
The record also does not support the Respondent’s claim that there was less maintenance work to be done at the time of the May layoffs. Company records demonstrated that preventive maintenance hours increased from March to May 2003. Further, both before and after the May 9 layoff was announced, the Respondent hired into new positions employees who performed the work previously performed by the maintenance technicians.19
Second, the Respondent offered inconsistent testimony concerning the order in which the maintenance technicians were laid off. Barry and Patterson gave differing accounts of the basis for selection; neither was correct. Patterson testified that the layoffs were conducted according to seniority in the classification. By classification, Crosby and Shembarger were the two most senior maintenance technicians; nevertheless, both were targeted over Miller and Wagner, who were never approached about the layoffs. Barry gave inconsistent testimony on this point, though his final answer was that the layoffs were conducted by plantwide seniority. While Shembarger, Cook, and Ludwig Jr. had less plantwide seniority than the maintenance technicians who were not laid off, the Respondent’s layoff policy, which requires the Respondent to conduct layoffs on the basis of “seniority by department and job description,” does not mention plantwide seniority. The Respondent offered no explanation why it deviated from its established policy when it chose Shembarger, Cook, and Ludwig Jr. for layoff. See Meyer Stamping & Mfg. Co., 237 NLRB 1322, 1323 (1978).
The same reasons undercut the Respondent’s proffered
reasons for laying off
For the foregoing reasons, we find, in agreement with the judge, that the Respondent violated Section 8(a)(3) and (1) when it reassigned Cook and Ludwig Jr.,20 and laid off Shembarger and Crosby.21
ORDER
The Respondent, Cast-Matic Corporation d/b/a Intermet
Stevensville,
1. Cease and desist from
(a) Laying off or reassigning employees because of their union support and activities.
(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 Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days of the date of this Order, offer the following individuals full reinstatement to the position they held on the dates below or, if that job no longer exists, to a substantially equivalent position, without prejudice to their seniority or any other rights or privileges previously enjoyed:
William Shembarger May 9, 2003
Mark Cook May 9, 2003
George Ludwig Jr. May 9, 2003
Robert Crosby June 17, 2003
(b) Make the above-referenced employees whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision.
(c) Make Sylvester Tebo whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the decision.
(d) 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 backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facilities 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.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
Dated,
______________________________________
Peter C. Schaumber, Member
______________________________________
Peter N. Kirsanow, Member
______________________________________
Dennis P. Walsh, Member
(seal) 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 lay off or reassign our employees because of their union support and activities.
We will not in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act.
We will, within 14 days from the date of this notice, offer William Shembarger, Mark Cook, George Ludwig Jr., and Robert Crosby full reinstatement to the positions they held on the following dates:
William Shembarger May 9, 2003
Mark Cook May 9, 2003
George Ludwig Jr. May 9, 2003
Robert Crosby June 17, 2003
If these jobs no longer exist, we will offer them a substantially equivalent position without prejudice to their seniority or any other rights or privileges previously enjoyed.
We will make William Shembarger, Mark Cook, George Ludwig Jr., Robert Crosby, and Sylvester Tebo whole for any loss of earnings and other benefits they suffered as a result of our unlawful action against them.
Cast-Matic Corporation d/b/a Intermet Stevensville
Steven
Carlson, Esq. and Jamie J. Vanderkolk, Esq.,
for the General Counsel.
Valerie
B. Speakman, Esq. and Gordon Jackson,
Esq. (
Michael L. Fayette, Esq. (Pinsky, Smith, Fayette & Hulswit), for the Charging Party.
DECISION
Earl E. Shamwell Jr.,
Administrative Law Judge. These
consolidated cases were heard before me in Stevensville, Michigan, on October
28–30, 2003; January 27–28, May 11–13, and August 16–18, 2004, pursuant to an
original charge filed in Case 7–CA–45550 on October 21, 2002, by the Charging
Party, International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL–CIO (the Union), against Cast-Matic
Corporation d/b/a Intermet Stevensville (the Respondent). The
On February 27, 2003, the Regional
Director for Region 7 of the National Labor Relations Board (the Board) issued
a complaint against the Respondent and scheduled hearing on the matter for June
5, 2003. On March 4, 2003, the Respondent
timely filed its answer to the complaint essentially denying the commission of
any unfair labor practices.
On March 7, 2003, the Union filed an
original charge in Case 7–CA–45994 against the Respondent; the
On June 20, 2003, the
On September 29, 2003, the Regional
Director issued a complaint consolidating the three aforementioned cases and
scheduling a hearing for October 28, 2003.[1] The Respondent timely filed its answer to
this consolidated complaint on October 7, 2003.
On November 6, 2003 (after the record was opened), the General Counsel
filed his motion to consolidate and amend the second amended consolidated
complaint based on, inter alia, the Union’s having filed a charge in a new
case, Case 7–CA–46628, on September 16, 2003, and the need to correct the
spelling of the name of an alleged supervisor.[2]
On November 25, 2003, I granted the
motion, on grounds of the new complaint allegations being closely related to
the facts and issues presented in the consolidated complaint and there being no
opposition by the Respondent.[3] On December 9, 2003, the Respondent timely
filed its answer to the second amended consolidated complaint and essentially
denied the commission of any unfair labor practices and asserted certain
affirmative defenses.[4]
The consolidated complaint as amended
alleges[5]
that the Respondent violated Section 8(a)(1), (3), (4), and (5) of the National
Labor Relations Act (the Act) on numerous occasions during calendar years 2002
and 2003. At the hearing, the parties
were represented by counsel and were afforded full opportunity to be heard,
examine and cross-examine witnesses, and introduce evidence. On the entire record,[6]
including my observation of the demeanor of the witnesses and after considering
the posthearing briefs[7]
by the General Counsel, the
The Respondent, a corporation, with an
office and place of business and facility in
The Respondent admits and I find that the
ii. preliminary issues and
background to the litigation
A.
The 10(b) Issue
The Respondent contends that the amended
complaint in paragraphs 9(a)(1), (2), (3), (4,) and (5); 9(b)(2); and 9(d)
should be dismissed on grounds of untimely filing under Section 10(b) of the
Act. As noted, the General Counsel has
withdrawn paragraphs 9(a)(5), 9(b) in their entirety, as well as 9(d)(5).[8]
Accordingly, for purposes of the 10(b) issue, I will treat only with the
remaining complaint allegations in paragraphs 9(a)(1), (2), (3), and (4), and
9(d)(1), (2), (3), (4), and (6).
The General Counsel in opposition
essentially contends that the allegations in paragraph 9(a) are “closely
related” to the allegations contained in the timely filed original charges and
relate back to the initial 10(b) period.
Therefore, he argues that dismissal on the grounds of untimely filing is
not appropriate.
The pertinent 9(a) charges, basically
assert that five alleged discriminatees on dates covering May 3 through about
June 27, 2002, were each issued new job descriptions unlawfully imposing new
and onerous conditions by the Respondent.
These charges first appear as to some of the affected employees in the
aforementioned third amended charge filed by the
The original charge, as noted previously,
was also amended a second time by the Union in this case on October 23 and December
9, 2002; these charges were received by the Respondent on or about the dates in
question. These amended charges name two
of the affected employees as having had imposed upon them the allegedly new and
more onerous job descriptions and duties.
Section 10(b) of the Act provides in pertinent
part:
. . . . That no 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 five employees identified in the 9(a)
complaint and the dates on which the allegedly unlawful conduct took place are
as follows:
Mark
Cook—May 3, 2002
Robert
Crosby—June 18, 2002
Ronald
Wagner—June 20, 2002
George
Ludwig Jr.—June 25, 2002
William
Shembarger—June 23, 2002
Applying the Act’s 6-month limitation
strictly, charges relating to Cook should have been filed no later than about
November 3, 2002;
Directing myself to the charges, I note
the Union’s original charges (October 21) state that Shembarger and Crosby were
allegedly not given their scheduled performance reviews by the Respondent for
unlawful reasons on September 27 and October 17, 2002, respectively. The October 23 amended charge states that on
September 27 and October 17, 2002, Shembarger and Crosby, respectively, were
given negative performance reviews, again for allegedly unlawful reasons.
The December 9 amended charges states,
inter alia, that the Respondent unlawfully imposed new and onerous conditions
on Shembarger’s and Crosby’s employment on June 27 and October 21, 2002.
The January 29, 2003 third amendment (the
fourth amendment, counting the October 23 amendment) charges the Respondent
with additional unlawful conduct against Crosby and Shembarger stemming from
the June 18 and October 17, 2002 performance evaluations of Crosby and the June
27 and November 21, 2002 evaluations of Shembarger. The third amendment for the first time
charges the Respondent, inter alia, with imposing new and onerous conditions on
the employment of employees Mark Cook, George Ludwig Jr., and Ron Wagner.
First, it appears that as to Crosby and
Shembarger, the 9(a) charges are clearly timely filed and I would so find. Regarding the remaining three—Cook, Wagner,
and Ludwig Jr.—I would concur with the General Counsel, that the complaint
allegations, though technically beyond the 6-month period, are appropriately
joined in the complaint. As will later
herein become evident, this case reflects for all intents and purposes a
continuation of activities and events pertinent to another case before the
Board involving the same parties and in some cases the same witnesses. Notably, the alleged discrimination in the
9(a) complaint allegations are all maintenance technicians who the General
Counsel asserts were targeted en masse by the Respondent in its effort to
defeat and rid itself of the Union. He
asserts further that the timely filed charges relating to the three maintenance
techs arose in the context of an unlawful campaign against the
For similar reasons, I decline to dismiss
the complaint allegations in paragraph 9(d)(1), (2), (3), (4), and (6). These allegations pertain to the same five
maintenance techs for a period covering September 30 and December 17, 2002, and
stem from the aforementioned amended charges.
B.
Background to the Instant Litigation:
Intermet I
This case is or may be at least viewed as
a sequel to a case (JD–54–03) heard by Administrative Law Judge C. Richard
Miserendino in the fall of 2002 and decided by him on May 16, 2003. This case is presently on appeal before the
Board and at this writing has not been decided.
This prior litigation involved the Respondent and the
I believe it will be helpful gaining an
understanding of the present case by summarizing the facts, issues, and the
judge’s findings and conclusions of the prior case which I will sometimes refer
to as Intermet I to distinguish it
from the instant case, which I will refer to as Intermet II where necessary for clarity.
Intermet I involved numerous charges of unlawful
conduct on the part of the Respondent occurring in the context of the Union’s attempt
to organize the Company’s production and maintenance workers; the allegedly
unlawful conduct took place both during the organizing campaign and afterwards.
Writing a 70-page opinion, Judge Miserendino
found and concluded in material part that since February 20, 2002, a majority
of the Respondent’s employees, in a unit he found constituted a unit
appropriate for purposes of collective bargaining within the meaning of Section
9(b) of the Act, signed union authorization cards designating and selecting the
Union as their representative for purposes of collective bargaining with the
Respondent.
The judge also found that since February
20, 2002, and continuing through the date of his decision, the Union has been
the representative for purposes of collective bargaining of the employees in
the unit of production and maintenance workers with respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment; that
since February 20, 2002, and continuing to the date of his decision, the Union
has requested that the Respondent recognize and bargain collectively with it
with respect to the aforementioned rates of pay, wages, hours of employment,
and other terms and conditions of employment of employees in the unit.
The judge found that the Respondent had
failed and refused to recognize and bargain with the
Judge Miserendino also found the
Respondent had committed 21 separate violations of Section 8(a)(1) of the Act;
6 separate violations of 8(a)(3); and 1 violation of Section 8(a)(5)
(essentially the failure to recognize the Union as the unit employees’
representative and bargain with it). I
will consider Judge Miserendino’s findings of unfair labor practice violations
by the Respondent among the totality of circumstances associated with the
complaint allegations in deciding the instant litigation. Overnite
Transportation Co., 336 NLRB 387 (2001); Nelcorp, 332 NLRB, 179 (2000);
Notably, in finding the many violations
in question, the judge also made credibility findings regarding the various employee
and employer witnesses. Consistent with
Board authority, I will not disturb these findings and will consider the judge’s
findings based on witness credibility as established fact for purposes of
resolving pertinent issues in the instant litigation. See Standard
Drywall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
At the risk of dramatic overstatement,
the many 8(a)(1) violations as determined by Judge Miserendino run what may be
fairly the entire panoply of such violations historically brought under the
Act.[9]
Regarding the judge’s finding of a number
of 8(a)(3) violations, I note that he determined that the Respondent not only
targeted a known union supporter for discriminatory discipline but also
unlawfully disciplined, demoted, and reduced in pay an employee the Company
merely suspected was a union supporter because of her close friendship with a
known unionist.
With the judge’s findings and conclusions
in Intermet I serving as a backdrop,
we turn to the complaint allegations in the instant litigation, Intermet II.
C.
The Instant Litigation: Intermet
II; and
Overview of the Charges
The consolidated complaint (the
complaint), as amended, alleges that the Respondent during a period covering
roughly May 3, 2002, through September 2003, committed numerous unfair labor
practices against a number of its employees, all of whom either were union
supporters and/or witnesses in the Intermet
I campaign and prior Board hearing.
Indeed, the thrust of the complaint is that these employees, and verily
the department (maintenance) to which most were assigned at the Respondent’s
facility, were unlawfully targeted for reprisals because of their involvement
in the organizing campaign and/or their testimony at the trial. The unlawful actions against the named
employees include unfairly critical performance evaluations, disciplinary
warnings, reduction of overtime, changing job requirements, issuing job descriptions,
and imposing new and onerous employment conditions, requiring job-related
training at employee expense and on their own time, suspensions, layoffs, and
discharges, all in violation of Section 8(a)(3), (4), and (1) of the Act.
The Respondent is also charged with
various acts of unlawful interference with employees’ Section 7 rights, including
coercive interrogations and threats of plant closure and relocation in
violation of Section 8(a)(1) of the Act.
Finally, the Respondent is charged with numerous violations of Section
8(a)(5) of the Act by failing and refusing to bargain collectively with the
As noted, the alleged violations took
place over a substantial period of time.
Moreover, since the original complaint was amended several times, the
consolidated complaint consequently reads in a somewhat disjointed
fashion. I will for the sake of clarity,
and hopefully brevity, treat with allegations in an order different from the manner
in which the charges are presented in the complaint. For instance, as will become evident, some of
the charges involve certain named employees in the Respondent’s maintenance
quality control and furnace departments.
These allegations, in my view, form a continuum of sorts and will be
treated as such for discussion. Other
charges, where applicable, will be arranged likewise for discussion and resolution.
D.
The Respondent’s Business and Operations During
the Relevant Period
Before turning to the discussion of the
unfair labor practice allegations, I believe it will be helpful to gain an understanding
of the history[10]
of the Respondent’s business, which changed in terms of the products made by
the Company as well as the technology and associated processes that were of
necessity part of the new business. It
will also be helpful to discuss the Company’s operations during the relevant
period.
The Respondent currently engages in the production of aluminum die cast automobile products, primarily