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,
Acklin Stamping Company and
United Automobile Aerospace and Agricultural Implement
Workers of
December 28, 2007
DECISION AND ORDER REMANDING
By Members Liebman, Schaumber, and Walsh
On May 4, 2007, Administrative Law Judge Bruce D. Rosenstein issued his decision in this case, finding that the Respondent Union violated Section 8(b)(1)(A) and 8(b)(2) of the Act by requesting that the Respondent Employer terminate employee Niles Menard, and that the Respondent Employer violated Section 8(a)(1) and (3) of the Act when it terminated Menard based on the Respondent Union’s request. The Respondent Employer filed exceptions and the Respondent Union filed exceptions and a supporting brief. Thereafter, the General Counsel filed an answering brief to the Respondent Employer’s and the Respondent Union’s exceptions, the Respondent Union filed a reply brief to the General Counsel’s answering brief, and the Respondent Employer filed an opposition to the Respondent Union’s exceptions.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order Remanding.
In finding that the Respondent Union and the Respondent Employer violated the Act, the judge concluded that they acted in an arbitrary and discriminatory manner because the Respondent Union requested that Menard be terminated for “reasons other than the tendering of periodic dues and initiation fees uniformly required,” and the Respondent Employer complied with this request. By considering only whether the request for discharge was based on a failure to submit dues and initiation fees, the judge failed to apply the proper standard.
Under Board precedent, “whenever a labor organization ‘causes the discharge of an employee, there is a rebuttable presumption that [the labor organization] acted unlawfully because by such conduct [it] demonstrates its power to affect the employees’ livelihood in so dramatic a way as to encourage union membership among the employees.’” Graphic Communications Local 1-M (Bang Printing), 337 NLRB 662, 673 (2002), quoting Operating Engineers Local 478 (Stone & Webster), 271 NLRB 1382 fn. 2 (1984). As the Board further explained in Graphic Communications, supra at 673, quoting, Operating Engineers Local 18, 204 NLRB 681, 681 (1973), enf. denied on other grounds 496 F.2d 1308 (6th Cir. 1974 (emphasis added):
No question that, read literally, Sections 8(b)(2) and 8(a)(3) of the Act specify only, in essence, failure to satisfy union security obligations as a basis for allowing labor organizations to lawfully cause or attempt to cause an employer to discharge an employee. That, of course, is not the situation presented here. Even so, under the Act a labor organization can engage in statutory “cause or attempt to cause” conduct “not only when the interference with employment was pursuant to a valid union-security clause but also in instances where the facts show that the union action was necessary to the effective performance of its function of representing its constituency.”
The issue here is not whether Menard failed to satisfy his
union-security obligations. Rather,
before the judge and in its exceptions, the Respondent Union contended that it
was concerned about Menard’s qualifications as an electrician, his performance
during his probationary period, and the impact of his continued employment on
employee safety. Therefore, to rebut the
presumption that its request that the Respondent Employer discharge Menard was
unlawful, the Respondent Union must show that its action was “necessary to the
effective performance of its function of representing its constituency.” Application of the appropriate standard
requires making a determination as to whether the
On remand, the judge shall apply the applicable standard and determine whether, on the existing record,1 the Respondent Union has shown that its request to discharge Menard was necessary to represent its members, and thereby sufficient to rebut the presumption of a violation. In making this determination, the judge may be required to resolve credibility issues that were not addressed in his previous decision.2
Because any determination of whether the Respondent Employer’s discharge of Menard violated Section 8(a)(1) and (3) is inextricably linked to the 8(b)(1)(A) and (b)(2) allegations, we shall similarly remand this issue to the judge for further appropriate consideration and analysis.
ORDER
It is ordered that this proceeding is remanded to Administrative Law Judge Bruce D. Rosenstein for the purposes described above.
It is further ordered that the judge shall prepare and serve on the parties a supplemental decision setting forth credibility resolutions, findings of fact, conclusions of law, and a recommended Order, as appropriate on remand. Copies of the supplemental decision shall be served on all parties, after which the provisions of Section 102.46 of the Board’s Rules shall be applicable.
Dated,
Wilma
B. Liebman, Member
Peter
C. Schaumber, Member
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
Rudra Choudhury, Esq., for the General Counsel.
Joan Torzewski, Esq., of
Renisa A. Dorner, Esq., of
DECISION
Statement of the Case
Bruce D. Rosenstein,
Administrative Law Judge. This case was tried before me on February 22, 2007,
in
Issue
The complaint alleges that the Respondent Union requested
the Respondent Employer to discharge its employee Menard because it refused to
allow Menard membership in the
Findings of Fact
i. jurisdiction
The Employer, with an office and place of business in
ii. alleged unfair labor practices
A. Background
The parties are subject to a collective-bargaining agreement effective by its terms from October 18, 2005, to October 18, 2008 (GC Exh. 2). Pertinent provisions subject to this case include article 3,[2][ article 6,[3][ and article 50.[4]
Since 1996, Daniel Twiss has been the International Representative
of Respondent Union in Region 2-B, which oversees the
Linda Straub served as Chairman of the
Mark Echler holds the position of Corporate Director of
Human Resources for Ice Industries and is headquartered in
Vince Curtis serves as the Employer’s Plant Superintendent and has held the position since April 10.
Menard was contacted by
B. The Section 8 (a)(1) and (3) and
8(b)(1)(A) and
(b)(2) Allegations
1. The position of the parties
The General Counsel alleges in paragraph 8 of the
complaint that about June 14, Respondent Union requested that Respondent
Employer discharge its employee Menard because it refused to allow Menard membership
in the
The Respondent Employer argues that in an effort to maintain
a positive relationship and avoid an expensive grievance with the Union, it
acquiesced to the Union’s demand to discharge Menard on the basis that the
The Respondent Union asserts that it did not affirmatively
request that Menard be terminated and therefore, it is not responsible for his
subsequent discharge. Additionally, the
2. The facts
Menard, on March 6, completed a Union membership application
and dues check-off authorization (U Exh. 2).
He continued to remit dues to the
In or around April 2006, Straub approached Menard and requested
that he supplement his electrical experience as the
In or around early May 2006, Straub showed the letter that Menard had provided from his prior employer to both Twiss and Curtis. Straub testified that both individuals agreed that there wasn’t enough information to verify Menard’s electrical experience. On or about June 10, Curtis called Straub into his office and informed her that in his opinion Menard was not qualified for the electrician’s job and he would like to create a position for him because he is a nice guy. Straub informed Curtis that a skilled trade position could not be created for Menard because there were other workers with more seniority that would be entitled to bid on the job. Straub suggested that Curtis could create a production job and if Menard bid on the job and got it, it was fine. Curtis thought that was a good idea.
On June 12, a meeting occurred in Curtis’s office that was attended by Lyons and Menard. During the meeting, Curtis informed Menard that he was happy to have him aboard as a full-time employee since he had successfully completed his 90 day probationary period.[9]
During the morning of June 14, Straub asked Curtis what
had happened with Menard. Curtis
informed Straub that Menard had completed his probationary period and was a
member of the
Twiss, after talking with Straub on the morning of June 14, placed a telephone call to Echler who was unavailable but left a message for him to return the call.
Earlier on June 14, before receiving the telephone message from Twiss, Curtis had called Echler and informed him that Menard was slow and did not catch on quickly. Echler informed Curtis that since Menard had completed his probationary period, the responsibility falls on either you or Lyons. Echler inquired if Curtis had performed the proper evaluations on Menard during the probationary period, and Curtis replied that we really did not do so.
Echler testified that he returned the telephone call to Twiss either later that morning or early afternoon.
Twiss testified that he informed Echler that the
According to Echler, after he returned the telephone call,
Twiss informed him that the
Curtis testified that Echler telephoned him during the afternoon of June 14, and stated that Twiss asked that Menard be terminated. Echler then instructed Curtis to terminate Menard. Curtis contacted Menard to offer him a production job. Menard turned the offer down since it would be at a reduced rate of pay.
Thereafter, on the afternoon of June 14,
3. The agency status of Daniel Twiss
The Board and the Courts have uniformly held that whether
someone acts as an agent under the Act must be determined by common law
principles of agency. See, e.g. NLRB v. Plasterers & Cement Masons Local
90 (
Applying these principles to the subject case, the
evidence establishes that Twiss negotiated four contracts including the
parties’ current collective-bargaining agreement on behalf of the
Further evidence that impacts on the agency status of Twiss was his testimony that when he made the June 14 telephone call to Echler concerning Menard, it was on behalf of the Respondent Union.
For all of the above reasons, and contrary to the
Respondent Union’s denial of his agency status, I find that Twiss is an agent
of the
4. Analysis
In Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), the Board announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1) turning on
employer motivation. First, the General
Counsel must make a prima facie showing sufficient to support the inference
that protected conduct was a “motivating factor” in the employer decision. On such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken place even in the
absence of the protected conduct. The
United States Supreme Court approved and adopted the Board’s Wright Line test in NLRB v. Transportation Management Corp., 462 U.S. 393, 399–403
(1983). In Manno Electric, 321 NLRB 278 fn. 12 (1996), the Board restated the
test as follows. The General Counsel has
the burden to persuade that antiunion sentiment was a substantial or motivating
factor in the challenged employer decision.
The burden of persuasion then shifts to the employer to prove its affirmative
defense that it would have taken the same action even if the employee had not engaged
in the protected activity.
The Supreme Court has held in Air line Pilots Assn. v. O’Neill, 499 U.S. 65 (1991) that the
“arbitrary, discriminatory, or in bad faith” standard applies to all union
activity.
The Board has held that a labor organization violates Section 8(b)(1)(A) and (b)(2) of the Act when pursuant to a union–security agreement it seeks the discharge of employees who have been denied membership on grounds other than their failure to tender periodic dues uniformly required as a condition of employment. In addition, an employer violates Section 8(a)(1) and (3) of the Act when it discharges an employee, pursuant to a valid union-security agreement, if it is aware that the employee has tendered his periodic dues. AMF Wheel Goods Division of AMF Incorporated and Kenneth D. Schwartz, 247 NLRB 231 (1980).
The evidence establishes that Menard fully complied with
his membership requirements including the tendering of periodic dues and
initiation fees and the Employer had never been apprised otherwise by the
Contrary to the
Lastly, I note that on June 16, the Employer prepared a
letter to “whom it may concern” that due to circumstances with the
Under these circumstances, and for all of the above
reasons, I find that the Respondent Employer and the Respondent Union acted in
an arbitrary and discriminatory manner and the
Conclusions of Law
1. Acklin Stamping Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. Respondent Union violated Section 8(b)(1)(A) and (b)(2) of the Act when it requested Acklin Stamping Company to terminate Menard for reasons other than the failure to tender uniformly required initiation fees and periodic dues.
4. Respondent Employer violated Section 8(a)(1) and (3) of the Act when it terminated Menard based on the Union’s request for reasons other than the failure to tender uniformly required initiation fees and periodic dues.
Remedy
Having found that the Respondent Employer and Respondent Union have engaged in certain unfair labor practices, I find that they must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act
Accordingly, I order the Respondent Employer to immediately reinstate Menard to his former or substantially equivalent job and that the Respondent Employer and Respondent Union jointly and severally make Niles Menard whole for any loss of earnings, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended[10][10]
ORDER
A. Acklin Stamping Company, It’s officers, agents, and representatives, shall
1. Cease and desist from
(a) Terminating Niles Menard for reasons other then the failure to tender uniformly required initiation fees and periodic dues.
(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) Immediately reinstate Niles Menard to his former or a substantially equivalent position and jointly and severally make him whole, with interest, for any loss of earnings suffered because he was terminated in the manner set forth in the remedy section of the decision.
(b) Within 14 days from the date of this Order, remove from the files of Acklin Stamping Company, any reference to the unlawful termination of Niles Menard, and within 3 days thereafter, notify him in writing that we have done so and that we will not use the termination against him in any way.
(c) We will 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.
(d) Within 14 days after service by the Region, post at our offices, copies of the attached notice marked “Appendix A.”[11] Copies of the notices, on forms provided by the Regional Director for Region 8, after being signed by the Respondent Employer’s authorized representatives, shall be posted and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent Employer has gone out of business it shall duplicate and mail, at its own expense, a copy of the notice to all employees at any time since June 14, 2006.
(e) Sign and return to the Regional Director sufficient copies of the notice for posting at all places where notices to employees are customarily posted.
(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 it has taken to comply.
B. Respondent United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, Local 12, its officers agents,
and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause Acklin Stamping Company to discriminate against Niles Menard or any other employee in violation of Section 8(a)(1) and (3) of the Act.
(b) In any like or related manner 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) Jointly and severally make whole Niles Menard, with interest, for any loss of earnings suffered because he was terminated in the manner set forth in the remedy section of the decision.
(b) Within 14 days from the date of this Order, remove
from the
(c) We will 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.
(d) Within 14 days after service by the Region, post at the Union Office, copies of the attached notice marked “Appendix B.”[12] Copies of the notices, on forms provided by the Regional Director for Region 8, after being signed by the Respondent Union’s authorized representatives, shall be posted and maintained for 60 consecutive days in conspicuous places including all places where notices to employees and members are customarily posted. Reasonable steps shall be taken to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent Union has gone out of business or closed the Union office involved in these proceedings, it shall duplicate and mail, at its own expense, a copy of the notice to all employees and current members employed by Acklin Stamping Company at any time since June 14, 2006.
(e) Sign and return to the Regional Director sufficient
copies of the notice for posting by the
(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 it 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,
APPENDIX A
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 in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will within 14 days from the date of the Board’s Order, offer Niles Menard full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
We will, jointly and severally, make Niles Menard 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.
We will within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharge, and within 3 days thereafter notify the employee in writing that this has been done and that the discharge will not be used against him in any way.
Acklin Stamping Company
APPENDIX B
Notice to Employees
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will, jointly and severally, make Niles Menard whole for any loss of earnings and other benefits resulting from our request to Acklin Stamping Company to terminate Niles Menard for reasons other then the failure to tender uniformly required initiation fees and periodic dues, less any net interim earnings, plus interest.
We wil , within 14 days from the date of this Order, remove from our files, any reference to the our request to Acklin Stamping Company to terminate Niles Menard , and we will, within 3 days thereafter, notify him in writing that we have done so and that we will not use the termination against him in any way.
Aerospace and Agricultural Implement Workers of