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,
Wheeling Brake Block Manufacturing Company and
Wheeling Brake Band & Friction Manufacturing Company and Retail, Wholesale, and Department Store Union, Local No. 379,
and The United Food and Commercial Workers
May 23, 2008
DECISION AND SUPPLEMENTAL ORDER
By Chairman Schaumber and Member Liebman
On December 9, 2005, Administrative Law Judge David I. Goldman issued the attached bench decision. On November 21, 2006, the National Labor Relations Board issued an Order Remanding Proceeding to the judge for receipt of evidence “bearing on the issue of the proper identity of the Respondent” and for the issuance of a supplemental decision and recommended supplemental Order. On March 14, 2007, the judge reopened the record pursuant to the November 21, 2006 Order. On May 31, 2007, the judge issued the attached supplemental decision. Thereafter, Respondent Wheeling Brake Band & Friction Manufacturing Company filed exceptions to the judge’s supplemental decision, and a supporting brief. The General Counsel filed an answering brief, and Respondent Wheeling Brake Band & Friction Manufacturing Company filed a reply brief.2
The National Labor Relations Board3 has considered the bench decision, the supplemental decision, and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions as modified4 and to adopt the recommended supplemental Order as modified.5
Amended Conclusions of Law
Substitute the following for Conclusion of Law par. 1:
“1. Respondent Wheeling Brake Block Manufacturing Company is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.”
ORDER
The National Labor Relations Board adopts the recommended supplemental
Order of the administrative law judge as modified below and orders that the
Respondent, Wheeling Brake Block Manufacturing Company,
1. Insert the following as par. 2(c) and reletter the subsequent paragraphs.
“(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful layoffs of Robert Maxwell, Timothy Colley, Ronald McKenzie, John Cumberlidge, Greg Brawdy, and Richard Palmer, and within 3 days thereafter notify them in writing that this has been done and that the layoffs will not be used against them in any way.”
2. Substitute the attached notice for that of the administrative law judge.
Dated,
Peter C. Schaumber, Chairman
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
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 layoff, fail to recall, or otherwise discriminate against you for supporting the Retail, Wholesale, and Department Store Union, Local 379 and the United Food and Commercial Workers Union, or any other union.
We
will not tell employees that we are going to get rid of the
We
will not solicit employees to assist us in getting rid of the Union so
that other employees will more readily accept the loss of the
We
will not implicitly or explicitly promise any employee that by opposing
the
We will not maintain and enforce an overly broad prohibition on union activity on our premises.
We will not repudiate the collective-bargaining agreement, including the seniority, pension contribution, and dues checkoff provisions of the collective-bargaining agreement.
We
will not refuse to recognize and bargain a successor
collective-bargaining agreement with 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, within 14 days from the date of this Order, offer Greg Brawdy and Richard Palmer full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
We will make Robert Maxwell, Timothy Colley, Ronald McKenzie, John Cumberlidge, Greg Brawdy, and Richard Palmer whole, with interest, for any loss of earnings and other benefits resulting from their layoff.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful layoffs of Robert Maxwell, Timothy Colley, Ronald McKenzie, John Cumberlidge, Greg Brawdy, and Richard Palmer, and we will, within 3 days thereafter, notify them in writing that this has been done and that the layoffs will not be used against them in any way.
We will, on
request, bargain with the
All production and maintenance employees employed by us at our Bridgeport, Ohio facility, excluding all office clerical employees and all professional employees, guards, and supervisors as defined by the Act.
We will make all affected employees whole, with interest, for any loss of earnings or benefits resulting from the repudiation of the expired collective-bargaining agreement, including the repudiation of the seniority and pension provisions of the collective-bargaining agreement.
We will reimburse
the
We will make all contributions to the Union-Industry pension plan that we were required to make under the collective-bargaining agreement, including any additional amounts due the plan on account of our failure to make these contributions at the time they were owed.
We will reimburse unit employees, with interest, for any expenses they have incurred because of our failure to make required contributions to the Union-Industry pension plan.
We will rescind the rule in the expired collective-bargaining agreement prohibiting union activity on our premises and we will advise you that this has been done and that you are free to engage in union activity at our facility during nonworking time and in nonworking areas, and in any other areas and other times on such terms as other nonwork-related activity is permitted, without retribution.
Wheeling Brake Block Manufacturing Company
Thomas M. Randazzo, Esq. for the General Counsel.
Henry A. Arnett, Esq. for the Charging Party.
BENCH DECISION AND CERTIFICATION
Statement of
the Case
David I. Goldman, Administrative Law
Judge. This case was tried in
Respondent did not appear at the hearing despite having received repeated notification of the time and place of the hearing (GC Exh. 3).1 After hearing the testimony of the General Counsel’s witnesses and considering the documentary evidence and oral argument of Counsel for the General Counsel and Counsel for the Charging Party, I recessed the hearing until November 18, 2005, at which time I rendered a bench decision in accordance with Section 102.35(a)(10) of the Board’s Rules and Regulations.
I hereby certify the accuracy of the November 18, 2005 transcript, pages 1 through 35, as corrected, containing my bench decision. A copy of that portion of the transcript is attached hereto as Appendix B. Corrections to the transcript are reflected in the attached Appendix C [omitted from publication].
In supplement to the
attached bench decision, I add the following. The General Counsel alleged, and
I have found, that two conversations that plant manager and owner Robert Burgess
had with Local Union Official Palmer, on July 15 and 18, 2003, were coercive
and violative of Section 8(a)(1). As recited in the bench decision, on July 15,
when Palmer came to the plant to get his layoff notice, Burgess initiated a
conversation with Palmer in which he solicited Palmer “to get rid of the Union,”
emphasizing, as Palmer credibly testified, that if “I would get rid of the
Union, the rest of the people would follow in my steps. They wouldn’t argue
about it.” (Tr. 31, 32).2 As demonstrated
by Burgess’ remarks 3 days later, the July 15 comment was part of an effort to
induce Palmer to assist Respondent’s plan to get rid of the Union. On July 18,
Palmer returned to the plant to meet with Burgess regarding the failure of the
Respondent to recall employees back to work in order of seniority. Burgess
again raised the subject of getting rid of the
The General Counsel alleged, and I found that the July 14, 2003 layoff was unlawfully motivated and violated Section 8(a)(3) and (1). As noted in the bench decision, any employee suffering a loss of work as a result of this layoff is a discriminatee. However, as also discussed in the bench decision, the evidence does not show that all employees were laid off. Moreover, the complaint identifies only six specific individuals alleged to be among those laid off. Two of them, Brawdy and Palmer, testified at the hearing. Based on their testimony, and the documentary evidence, there is no doubt that they were laid off and never recalled by the Employer. The other four—Robert Maxwell, Timothy Colley, Ronald McKenzie, and John Cumberlidge—did not testify. Significantly, the Respondent’s answer to the complaint admits that each of the four were laid off. Moreover, as detailed in the bench decision, records provided by the Respondent to the Region during the investigation of this case and introduced into evidence as GC Exh. 30, provide further support for the complaint allegation that these four employees were laid off. In response to requests for records showing hours worked since June, 2003, the Respondent submitted responses evidencing a diminution of hours worked for Maxwell and Cumberlidge for the week of July 14, 2003. The response shows no hours worked for Colley the weeks of July 14, and July 21, 2003, and thereafter documents a return to full-time hours. The Respondent’s submission does not show McKenzie working at all until January 19, 2004. In addition, in GC Exh. 30, the Respondent admits that there were layoff slips similar to those provided to Brawdy and Palmer (GC Exhs. 9, 10) for employees Maxwell, Cumberlidge, and Colley, although the Respondent states that it is unable to locate the slips. Further, both Palmer and Brawdy testified—albeit without much specificity—that they thought that with one or two exceptions (the exceptions they identified were employees Mellinger and, perhaps, Dymidowski) all the union member employees had been laid off for at least a short time. Although the evidence is not entirely clear as to the duration of their layoff, all the evidence supports the conclusion that Maxwell, Colley, McKenzie, and Cumberlidge lost work as part of the July 14, 2003 layoff.3 If others were also laid off, the evidence is lacking, and, in any event, the complaint does not identify any other alleged discriminatees.
Conclusions of
Law
1. The Respondent is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. The Union, at all material times has been the exclusive collective-bargaining representative, based on Section 9(a) of the Act, of an appropriate unit for such purposes as defined by Section 9(b) of the Act of Respondent’s employees at its Bridgeport, Ohio facility, composed of:
all production and maintenance employees employed by the Respondent at its Bridgeport, Ohio facility, excluding all office clerical employees and all professional employees, guards, and supervisors as defined by the Act.
4. The
5. By informing an employee that the Respondent was going to get rid of the Union and replace it with a union controlled by the Respondent, by soliciting an employee to assist Respondent in getting rid of the Union, so that others would more readily accept the loss of the Union, by implicitly and explicitly promising the employee that for opposing the Union the employee would be recalled from layoff, and by maintaining and enforcing an overly broad prohibition on union activity on its premises, the Respondent has been interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act.
6. By laying off of employees Robert Maxwell, Timothy Colley, Ronald McKenzie, John Cumberlidge, Richard Palmer, and Greg Brawdy, on July 14, 2003, and by failing to recall employees Greg Brawdy and Richard Palmer thereafter, Respondent has been discriminating in regard to the hire or tenure or terms and conditions of employment of employees, to discourage membership in a labor organization, in violation of Section 8(a)(1) and (3) of the Act.
7. By laying off and recalling employees without regard to the seniority provisions of the parties’ collective-bargaining agreement as of July 14, 2003, by withdrawing from the union-industry pension fund as of July 10, 2003 and thereafter failing and refusing to make contractually-mandated pension contributions to the fund, by failing and refusing to deduct and transmit dues deductions pursuant to the parties’ collective-bargaining agreement from July 11, 2003 to September 30, 2004, by repudiating the parties’ collective-bargaining agreement as of July 11, 2003, and by failing and refusing the Union’s request to recognize and bargain with the Union for the purpose of negotiating a successor collective-bargaining agreement, the Respondent has failed and refused to bargain collectively with the representative of its employees and is in violation of Section 8(a)(1), (5), and (d) of the Act.
8. The unfair labor practices set out in paragraphs 5, 6, and 7, above, affect commerce within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act.
The Respondent, having unlawfully laid off employees Robert Maxwell, Timothy Colley, Ronald McKenzie, and John Cumberlidge, on July 14, 2003, must make each employee laid off whole for any loss of earnings and other benefits, computed on a quarterly basis from the date of layoff to the date of a proper offer of reinstatement, 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). In addition to making them whole in accordance with the preceding, as to the two employees Respondent has, to date, failed to reinstate, Greg Brawdy and Richard Palmer, it must immediately offer each of them reinstatement to the position they occupied prior to the layoff, or to an equivalent position, should their prior position not exist, without prejudice to their seniority or any other rights or privileges previously enjoyed.
Respondent shall rescind the unlawful rule prohibiting union activity on its premises, advise employees it has done so, and that they may engage in union activity on the premises of Respondent during nonworking time and in nonworking areas, and in other areas and other times on such terms as other nonwork related activity is permitted, without retribution.
Having found that the
Respondent violated Section 8(a)(1) and (5) by failing and refusing to make contractually
required payments into the union-industry pension plan, from July 11, 2003, the
Respondent shall make the unit employees whole, with interest, for any loss of
benefits they may have suffered as a result, in the manner prescribed by Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971). The Respondent shall be required to make all contractually required
benefit payments or contributions that were not made from July 11, 2003,
including any additional amounts applicable to such delinquent payments, in
accordance with Merryweather Optical Company, 240 NLRB 1213, 1216
(1979). In addition, the Respondent shall reimburse unit employees, with
interest, for any contributions they themselves may have made for the maintenance
of the contractual pension funds after Respondent unlawfully discontinued
contributions to those funds, as set forth in Kraft Plumbing and Heating,
252 NLRB 891, n. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). Respondent shall
reimburse the Union, with interest, for lost dues that should have been paid
contractually but were not paid to the
Respondent shall, upon demand of the union, meet and confer with the union for the purpose of bargaining a successor collective-bargaining agreement .
Respondent shall post an appropriate informational notice, as described in Appendix A, attached. This notice shall be posted in the Employer’s facility or wherever the notices to employees are regularly posted for 60 days without anything covering it up or defacing its contents. When the notice is issued to the Employer, it shall sign it or otherwise notify the Region what action it will take with respect to this decision.
On these findings of
fact and conclusions of law and on the entire record, I issue the following recommended4
ORDER
The Respondent,
Wheeling Brake Block Manufacturing Company,
1. Cease and desist from:
(a) Informing employees that the Respondent is going to get rid of the Union and replace it with a union controlled by the Respondent, soliciting employees to assist Respondent in getting rid of the Union so that other employees would more readily accept the loss of the Union, implicitly and explicitly promising employees that by opposing the Union the employee would be recalled from layoff.
(b) Maintaining and enforcing an overly broad prohibition on union activity on its premises.
(c) Laying off and
failing to recall employees to rid itself of the
(d) Failing and refusing to abide by and repudiating the collective-bargaining agreement, including the seniority, pension contribution, and dues check off provisions of the collective-bargaining agreement.
(e) Upon request, failing and refusing to recognize and bargain a successor collective-bargaining agreement with the union.
(f) In like and 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) Offer immediate and full reinstatement to employees Greg Brawdy and Richard Palmer to their former jobs or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority or any other rights or privileges previously enjoyed.
(b) Make employees Robert Maxwell, Timothy Colley, Ronald McKenzie, John Cumberlidge, Greg Brawdy, and Richard Palmer, whole with interest, in the manner set forth in the remedy section of this Decision and Order for any loss of earnings or other benefits resulting from the layoff described in this Decision and Order.
(c) Make all affected employees whole, with interest, in the manner set forth in the remedy section of this Decision and Order, for any loss of earnings or benefits resulting from the repudiation of the collective-bargaining agreement, including the repudiation of the seniority, pension, and dues check off provisions of the collective-bargaining agreement.
(d) Reimburse the
(e) On request,
bargain with the
(f) Rescind the rule prohibiting union activity on the premises of the Employer and advise employees that it has done so, and that they are free to engage in union activity on the respondent’s facility during nonworking time and in nonworking areas, and in any other areas and other times on such terms as other nonwork related activity is permitted, without retribution.
(g) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of the records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. Bryant & Stratton Business Institute, 327 NLRB 1135 (1999).
(h) Within 14 days after service by the Region, post at its facility in Bridgeport, Ohio, copies of the attached notice marked “Appendix A”5 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.
(i) 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,
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 layoff, fail to recall, or otherwise discriminate against you for supporting the Retail, Wholesale, and Department Store Union, Local 379 and the United Food and Commercial Workers Union, or any other union.
We will not tell employees that we are
going to get rid of the
We will not solicit employees to assist
us in getting rid of the Union so that other employees will more readily accept
the loss of the
We will not implicitly or explicitly
promise any employee that by opposing the
We will not repudiate the collective-bargaining agreement, including the seniority, pension contribution, and dues check off provisions of the collective-bargaining agreement.
We will not refuse to recognize and
bargain a successor collective-bargaining agreement with 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, within 14 days from the date of this Order, offer Greg Brawdy and Richard Palmer full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
We will make Robert Maxwell, Timothy Colley, Ronald McKenzie, John Cumberlidge, Greg Brawdy, and Richard Palmer whole for any loss of earnings and other benefits resulting from their layoff, less any net interim earnings, plus interest.
We will, on request, bargain with the
all production and maintenance employees employed by the Respondent at its Bridgeport, Ohio facility, excluding all office clerical employees and all professional employees, guards, and supervisors as defined by the Act.
We will make all affected employees whole, with interest, for any loss of earnings or benefits resulting from the repudiation of the expired collective-bargaining agreement, including the repudiation of the seniority, pension, and dues check off provisions of the collective-bargaining agreement.
We will reimburse the
We will rescind the rule in the expired collective-bargaining agreement prohibiting union activity on our premises and we will advise you that this has been done and that you are free to engage in union activity at our facility during nonworking time and in nonworking areas, and in any other areas and other times on such terms as other nonwork related activity is permitted, without retribution.
Wheeling Brake
Manufacturing Company
APPENDIX A
[3]
B E N C H D E C I S I O N
November
18, 10:00 a.m.
Judge Goldman: Good morning. We’re back on the record. I’m going to issue a bench decision at this time.
Here telephonically are Mr. Arnett for the Charging Party Union and Mr. Randazzo as counsel for the Acting General Counsel.
Respondent was contacted this morning but was not available to participate or be present on this call and so they are not present.
I’ve heard the testimony in this case and have taken oral argument and considered the evidence and so I’m now ready to render a bench decision pursuant to 102.35, 102.35(a), parens, (10) of the Board’s Rules and Regulations.
The charge in 8–CA–34764 was filed on January 7, 2004 and amended February 27th and May 124th, 2004 by the Retail, Wholesale and Department Store Union Local 379 of the United Food and Commercial Workers Union.
The complaint issued on May 25, 2004 and amended complaint notice of hearing issued June 8, 2004 against the Respondent, Wheeling Brake Block 25 Manufacturing.
[4]
An additional charge was filed in case on January 6, 2005
by the
The complaint alleges that Paragraph 8 what are two independent 8(a)(1) violations, these are statements by the Respondent, specifically by its General Manager Robert Burgess that intended to rid itself of the collective bargaining representative.
Paragraph 9 of the complaint alleges a different kind of 8(a)(1) violation that Respondent maintained and enforced an overly broad prohibition on union activity. A clause—and that’s contained in the collective bargaining agreement, the clause that maintains, that, that carries out that rule.
Paragraph 10 alleges that discriminatory lay off and recall of employees, that is allegedly an 8(a)(3) violation but also in contradiction of the party’s collective bargaining agreement and in that way is also alleged to be a violation of 8(a)(5).
Paragraph 11(a) of the complaint alleges unilateral discontinuation of dues deduction from July 11, 2003 to February 6, 2004, which at trial counsel for General Counsel moved to amend to continue that
[5]
violation, to continue to allege that’s a violation not just through February 6, 2004 but to September 30, 2004, which is the date of the expiration of the collective bargaining agreement.
Paragraph 11(b) alleges the unilateral withdraw from the contractual pension plan. It’s alleged in the complaint that these are violations of 8(a)(5) and further alleged they collectively, the actions taken by Respondent amount to repudiation of the party’s collective bargaining agreement on or about July 11, 2003.
And finally the complaint alleges that Respondent failed and refused union request to meet and bargain for successor bargaining agreement, which is alleged in an 8(a)(5) violation.
Counsel for the General Counsel and the Charging Party who tried this case are already cited in the record and I’m not going to restate appearances here. As noted Respondent—as noted in the record
Respondent did not appear for the hearing. I now turn to
the Board’s jurisdiction over this case.
The Employer and Respondent Wheeling Brake Block Manufacturing admits in
its answer and I find that it’s a
[6]
engaged in the manufacture of industrial brake parts.
It has also admitted in its answer in the course of its business
it sells and ships goods value in excess of $50,000 directly to points located
outside of the State of
I further find that the Charging Party Union has been and is a labor organization within Section 2.5 of the Act as is evidenced by the testimony at the hearing and the numerous documents entered into evidence including the now expired collective bargaining agreement.
The answer of Respondent admits and I find that—hold that thought—okay strike that. The answer of Respondent admits and I find that Robert Burgess at all material times was and is a supervisor within the meaning of Section 2.11 of the Act and a agent of Respondent within the meaning of Section 2.13 of the Act.
Turning to the facts of this case. The evidence introduced at the hearing shows the Charging Party has been the representative bargaining unit of Respondent’s employees for many years since before
[7]
1987 according to the testimony. There have been a succession of labor agreements covering the terms and conditions of the bargaining unit employees since that time, most recent was effective October 1st, 2001 through September 30, 2004 and it’s found in the record as General Counsel’s Exhibit 6.
The General Counsel put on three witnesses, employees Richard Palmer and Greg Brawdy who are active in and held posts with the Local Union at the facility. In addition John Moore, an International Union Representative who serviced the Local Union, testified for the General Counsel.
Based on my observation of their demeanor while testifying and in context with the documentary evidence and the record as a whole I find that all three testified credibly.
There were occasional difficulties remembering certain events such as dates or when or if a letter was received, which led to small discrepancies in testimony, not so much between witnesses but in the testimony of a given witness but I do not think this distracts from their credibility. I think it shows their testimony was unscripted and reflected an honest effort to recount events.
[8]
The evidence revealed the following: The Employer announced a temporary shut down of the plant the afternoon of Friday, July 11, 2003. This occurred an hour or two before the scheduled three o’clock finish of the workday.
The lay off was to be effective Monday, July 14th, although General Manager Burgess actually emerged from his office the afternoon of July 11th quote “ranting and raving” end quote and yelling that he was shutting the plant down and was not going to run it anymore.
He said he was going to return the business to his father. At least some employees left Friday afternoon before the regularly scheduled end of the work shift at three o’clock.
Two weeks before the lay off Burgess approached Brawdy, who was the chairman of the local union at this facility, and told him that quote “we should get rid of the union” end quote.
He solicited Brawdy’s assistance in this plan however Brawdy told Burgess that he wanted to have a union and refused to assist Burgess.
This conversation is not alleged by the General Counsel as a violation of the Act presumably because it’s outside of the 10(b) period, as the
[9]
initial charge was filed slightly more than six months after this incident.
For that reason I do not find it to be a violation, however it is pertinent background that sheds light on subsequent events and is indicative of the mind set and motivations of this Respondent.
Richard Palmer who, in addition to Brawdy was the only other local union official at the facility, was on vacation July 10th, 2003. He was called by Respondent’s management on July 10th and told not to come into work on Monday, July 14th as scheduled because of the lay off that would begin that day.
I note to the fact that Palmer was contacted on the 10th meant that Burgess’ outburst on the afternoon of the 11th was more for show than an actual outburst of frustration over circumstances that led him to suddenly to shut down the operation the afternoon of July 11th.
Other evidence discussed below indicates that on July 10th the Company withdrew from the multi employer pension fund. This also supports the view that the alleged mass lay off was planned in advance for July 14th.
I believe the lay off was part of a plan,
[10]
the interest in which Burgess expressed to Brawdy in late June or early July of getting rid of the union.
Having failed to enlist Brawdy after the lay off began Burgess reached out to the other local union official, Richard Palmer. Palmer was told by Burgess to come to the plant on July 15th to pick up his lay off slip. At that time Burgess approached Palmer and asked Palmer to help quote “get rid of the union”.
He stated to Palmer that if Palmer would support getting rid of the union the other employees would follow his lead.
On July 18th when Palmer was at the plant again to discuss the lay offs with Burgess, Burgess once more raised the subject of the union when they were alone in the office, in Burgess’ office.
At that time Burgess announced that he 1wanted to get rid of the union. He stated that employees could have a union but the union would have to answer to Burgess, meaning he would make the final decisions for the union.
I find that each of these conversations with Palmer are violations of Section 8(a)(1). In each instance the subject of getting rid of the union was pointedly raised by the highest-ranking management
[11]
official.
In each instance the context of the conversation about getting rid of the union was the unprecedented lay off at the plant.
On July 15th the conversation occurred when Palmer was ordered by Burgess to come to the work site to pick up his lay off slip. The July 18th conversation occurred in Burgess’ office when Palmer came to the plant to discuss the lay offs.
Implicit in these conversations is that by ingratiating himself with Burgess by helping to get rid of the union, Palmer’s recall prospects would be better.
In addition the conversations announced an interest in intent on Burgess’ part, already in motion for the lay offs, so the plan to go non-union or to at least replace the union with some form of Company dominated union. The message to Palmer was to join up and implicitly I believe to suffer the consequences if he did not.
Of course as discussed below both Palmer and Brawdy paid the price for their failure to accede to Burgess’ demands that they assist his efforts to get rid of the union.
I note that threats to go non-union by
[12]
management are unlawful and for that proposition cases such as Shuck Components Systems 230 NLRB 838 at 842 from 1977, Associated Constructors 325 NLRB 998 at Page 1007 from 1998 and American Automatic Sprinkler Systems 323 NLRB 920 at Pages 920 and 921 from 1997.
The comments to Palmer about getting rid of the union were not friendly discussions and clearly would have a reasonable tendency to interfere, restraining course of employees in the exercise of Section 7 rights.
Turning to the lay offs. It’s not insignificant in considering the lay offs that both local union officials at the facility were solicited to support getting rid of the union. Both refused and they are the only employees never to be recalled notwithstanding their significant seniority.
I think clearly the lay offs can only be understood in the context of Burgess’ stated desire to rid the plant of the union.
It’s also notable that the lay off was carried out in a discriminatory fashion. At the time of lay off there were 11 employees performing bargaining unit work, two of whom were not in the union. An additional bargaining unit employee was out on sick leave.
[13]
Of the 12 bargaining unit employees only two were union officials Brawdy and Palmer. They were never recalled to work despite their being number three and four, respectively, on the seniority list.
They were the only employees never recalled and, in fact, most employees were back to work within a week and some did not miss any work.
Based on testimony and records supplied by the Employer during the Region’s investigation into the charges in this case the following information about the lay off can be reconstructed.
Taking a look at the employees in order of seniority, James Maxwell was the senior employee. He worked 16 hours the week of July 14th, suggesting that he was laid off for three days but in any event showing that he returned to work the week of the 14th.
Second employee on the seniority list is Richard Mellinger. Mellinger worked 40 hours the week of July 14th. He does not appear to have been laid off.
Employer Roger Dunn was fifth on the seniority list after Brawdy and Palmer. He worked 40 hours the week of July 14th. He does not appear to have been laid off.
Employee William Davenport was on sick
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leave at the time of lay off and returned directly from sick leave to full-time employment, without being laid off, the week of September 8, 2003.
Employee Timothy Calli suffered a two-week lay off and was recalled to full-time employment the week of July 28th. Employee Richard—Ronald McKenzie. The record showed he worked full-time as of January 19th, 2004. Based on the available records he appears to have been laid off for a significant time, approximately six months.
Employee Victor Dymidawski is next on the seniority list. He worked a full week of, full—he worked a full 40 hours the week of July 14th and did not suffer a lay off.
Next is employee Cumberlidge who worked eight hours the week of July 14th and then resumed full-time work the following week suggesting a four day lay off.
In addition, testimony revealed that two newer employees hired prior to the lay off and performing bargaining unit work but who were not members of the union were not laid off on July 14th.
One of these employees is known, was described only as Dave who performed bargaining work in shipping and there was an employee, Roger Phillips,
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who operated a sander and also worked in shipping. Neither of these two were union members and the testimony showed that they were not laid off.
In sum what this shows is that of the 12 employees performing bargaining unit work only two were never recalled. They, not so coincidentally I believe, were the two union officials Brawdy and Palmer and both had refused the Employers entreaties to turn on the union.
After those two the general lay off becomes a much smaller event. One employee was laid off for six months, another for two weeks, other than that everyone was working the week of the, everyone who was working the week of—strike that.
Other than that everyone who was working on the week of July 7th was back to work the week of July 14th and five of the 12 worked 40 hours the week of July 14th and effectively suffered no lay off.
Under these circumstances I find that the general lay off was discriminatory and a violation of Section 8(a)(3). I believe that the announcement of the shut down of operations on Friday afternoon was a sham designed to allow the employer to pick and choose which employees would be back to work Monday and which would be laid off.
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I should note that arguably the lay offs began Friday afternoon. It did for Brawdy who went home an hour or two early that afternoon pursuant to Burgess’ direction.
So arguably even employees who resumed work on Monday morning and lost no time from work the week of the 14th were subject to discrimination on the 11th as the entire shut down was part of an unlawfully scheme but I think that with the exception of Brawdy the evidence is too sketchy about who was laid off Friday afternoon.
I conclude, as Palmer was informed that the lay offs began in substance on Monday with those employees that the employer decided to lay off.
And as I said the announcement on Friday, July 11th about a temporary shut down was just cover for the selective and discriminatory lay off of the following week.
I find that the general lay off was motivated by Burgess’ stated desire to get rid of the union and that Brawdy and Palmer were singled out for what has been to date a permanent lay off because of their union activity and their unwillingness to renounce that union activity.
I think that the right line burden has been
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met by the General Counsel. That well-known test requires that the General Counsel make out a prima facie case that the anti union animus contributed to the adverse employment actions. The General Counsel does so.
It’s up to the Respondent to persuade that it would have taken the same action in the absence of protected conduct.
The employer cannot carry this burden merely by showing that it also has a legitimate reason for its action but it must persuade that the action would have taken place absent protected conduct.
The evidence here of animus is direct and unequivocally and a lay offs impact clearly fell largely on the only two employees who were union officials and who refused to go along with getting rid of the union.
And the lay off occurred just two weeks after Burgess approached Brawdy with his plan to get rid of the union. That timing is highly suspect.
That Palmer was not approached about getting rid of the union till after the lay offs doesn’t change anything. That would be the time when he was most vulnerable.
And I think, in fact, it’s revealing that
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in the midst of a lay off, that was allegedly generated by business considerations, that Burgess made a point of talking to Palmer about getting rid of the union twice.
Also the fact that the recalls and lay offs were done without regard to seniority, which is an express requirement of the collective bargaining agreement, is also suggestive of the discriminatory motivation as was the fact that there was no history of lay offs at the plant according to testimony of Union Representative Moore.
I would note here that it is a violation of Section 8(a)(3) of the Act for an employer to order a general lay off for the purposes of discouraging union activity or in retaliation against employees because of the union activities of some.
In this case the general lay off allegedly resulting from a temporary closure was a pre-text to rid the union of certain employees, primarily to rid the facility of the two union officers, but the entire lay off is therefore tainted and unlawful and any employee swept up in the lay off is a discriminatee.
Respondent, of course, chose not to attend the hearing and therefore did not put on any evidence to rebut the General Counsel’s case. What evidence
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there is is suspicious.
The lay off slips for Brawdy and Palmer say that the reason for the lay off is that the company is temporarily closed due to management change of ownership. Those are found in General Counsel’s Exhibits 9 and 10.
This is essentially what Burgess stated in his tirade the afternoon of July 11th but it’s obviously false as the vast majority of employees were back working the next week and many suffered no loss of work that week. The Company did not close.
Finally, additional evidence is found, per the proposition of the lay offs, were discriminatory and the conduct of the Employer after July 14th, I’ll discuss this shortly.
I would note here that in making my findings regarding the recall and lay offs I’ve relied upon credited testimony but also records of hours worked found in General Counsel’s Exhibit 30, which is a document provided by Respondent to the Region as part of its investigation of the charge.
Similar information was demanded from Respondent by subpoena, which was placed in the record as General Counsel’s Exhibit 5 and returnable the day of the hearing in accordance with NLRB practice.
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The General Counsel represented that no documents were provided in response to the subpoenas and no petition to revoke or quash was ever submitted.
Given Respondent’s total non compliance with the subpoenas I think the introduction of materials provided to the Region during the investigation of the charges filed in this case is particularly appropriate.
But also note that Board law recognizes that position letters and materials submitted by Respondent to a Region may be used as admissions against interest introduced in such as a Board proceeding, in a Board proceeding.
And for that, one would look to the Federal Rule of Evidence, Rule 801(d)(2) in cases such as Schneider’s Inc. 241 NLRB 850 from 1979 and Steve Alloyed Ford 179 NLRB 229 Footnote 2 from 1969 and a host of other cases.
The General Counsel has also alleged the 2 lay offs were not only violations of Section 8(a)(3) but violative of Section 8(a)(5) as they ignored the collective bargaining agreement.
Article 4 Section 2 of the collective bargaining agreement states, “Seniority shall govern the lay off and re-employment of employees provided
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that the employee is capable of doing the work”.
Clearly seniority was flouted with regard to the lay off and recall. There’s no evidence that 0the seniority employees were incapable of doing the work. That was asserted by Respondent as to Palmer.
Palmer disputes it and I note that Palmer and other senior employees worked at the facility by definition of their being senior for some years without any evidence of a problem handling the work.
As seniority is a mandatory term and condition of employment I find that the employer’s repudiation of it was violative of Section 8(a)(5), (1) and 8(d) and a case supporting that is Hilton’s Environmental 320 NLRB 437.
The evidence also shows that at the time of the lay off and the timing is not in my view coincidental the employer withdrew from the union’s district pension fund and ceased making contributions to the fund on behalf of employees.
Article 10 of the collective bargaining agreement required that these payments be made at specified rates through September 30, 2004 at a set amount per employee.
There’s no question based on the testimony of Union Representative Moore and the exhibits entered
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into evidence, specifically General Counsel’s Exhibit 18 and 21, that the Respondent ceased making pension contributions on or about July 11th, 2003.
Indeed the response of the grievance filed by the union over this issue, General Counsel’s Exhibit 21, suggests that any allegations quote, “in regard to union dues or pension payments were the result of instructions from the respective employees” end quote.
To the extent this is an admission or rationale for ceasing pension contributions it is not valid. Pensions are a mandatory subject of bargaining and even with employee consent, for which there’s no evidence, the employer is not privileged to cease making contractually mandated pension contributions.
Moreover I find it noteworthy the General Counsel’s Exhibit 18, which is a letter from the pension fund to Burgess, begins with the gray line of quote “withdraw liability” end quote and the letter, the body of the letter, begins by stating quote “This 2will acknowledge notification indicating that as of July 10th, 2003 your company has withdrawn from participation in the above multi employer pension fund” end quote.
This shows that Burgess wrote or contacted
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the fund on July 10th, 2003 before the lay offs and withdrew from the fund. While that letter from the employer or notification from the employer to the fund is not in evidence, the funds’ acknowledgement letter appears to be a standard fund letter written to employers in the ordinary course of business who give notice of withdrawal.
For that reason it carries the heighten reliability from what otherwise might be considered hearsay evidence. Given that it suggests strongly that the decision to withdraw from the pension fund was made as of July 10th, it is highly suggestive of the fact that the lay off that followed were part of a scheme that was planned by the company to rid the company of its union obligations.
It adds evidentiary weight to my findings that the lay offs were part and parcel of anti union offensive plan by the employer.
Clearly the company did not bargain with the union about ceasing the pension payments or offer the union an opportunity to bargain before ceasing the pension payments.
It’s well settled that the employer violates Section 8(a)(5) when during the term of a labor contract fails to make appropriate and
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contractually required fringe benefit payments.
See for example D.C. Mason Buildings Inc. 321 NLRB 1081 from 1996 and Stevens and Associate Construction Company 307 NLRB 1403 from 1992 and Lear Ziegler 283 NLRB 929 from 1987. The company’s conduct was a violation of Section 8(a)(5), 8(d) and 8(1)—8(a)(1).
The testimony and evidence also shows that the employer ceased transmitting dues to the union in July. Prior to that the employer had deducted dues from employee pay pursuant to check off cards and transmitted dues to the union pursuant to the agreement to do so found in the collective bargaining agreement.
The evidence and the testimony of Union Representative Moore and particularly General Counsel’s Exhibit 15 showed these payments stopped in July and never started again. July dues were quote “short” unquote by $7.56 and no dues were transmitted thereafter.
The collective bargaining agreement provides, and employees are paid weekly on Fridays, if the weekly shift extends to a Friday and that monthly dues are deducted on the second pay of each calendar month.
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That would mean that dues were deducted for July from the July 11th paychecks. Thus it would appear that the company did as alleged cease making dues deductions as of July 11th, 2003.
If the company did not bargain this change with the union or provide the union with an opportunity to bargain over it, this is straightforward violation of 8(a)(5), (1) and 8(d).
There is a question as to the duration of this violation. The complaint originally alleged the failure to remit dues violation continued only until February 6, 2004.
Apparently the complaint was pled that way not because the employer began deducting and remitting dues again on February 6, 2004 but because of General Counsel’s Exhibit 17, which is a fax sent to union representative Moore on February 6, 2004 from Burgess that included what the fax cover sheet refers to as quote “your copy of revocation from employees” end quote.
The fax includes eight documents entitled quote “Acknowledgment of revocation of authorization” end quote, each of which is dated February 6, 2004 and is identical except for each appears to be signed by each remaining union employee at the facility.
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The revocation states that the employees are acknowledging that they revoke the authorization to deduct dues beginning July 2003 and that they are currently reaffirming that revocation.
These revocations were received on the heels of a union grievance, General Counsel’s Exhibit 21, filed February 2, 2004 filed in part over the Company’s owing of dues for periods going back to July of 2003.
At the hearing Union Representative Moore testified that after he received these purported revocations he received a call from one employee, whose revocation form was sent in, who told him that the employer told employees that if the employees didn’t sign the revocation they wouldn’t have a job.
At that point counsel for the General Counsel moved to amend the complaint to alleged failure to deduct dues from on or about July 11, 2003 until September 30, 2004, the date of the contract’s expiration.
I believe
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And while Respondent chose not to be present in the hearing and therefore did not object to the introduction of this hearsay evidence I still have trouble accepting it as evidence for truth of the matter asserted.
The hearsay nature of the evidence limits its weight in my view. Having said that however and for much the same reasons the revocation cards or actually the copies that were faxed to the union are also hearsay evidence.
They were sent to the union with the assertion that they represent the employees’ decision to revoke dues deduction authorization but there is no foundation testimony regarding how they were procured, where the form language came from or even evidence that any employee actually signed a card.
All we have in evidence is something received by the union. The cards were obviously not 1offered into evidence and were not accepted for the truth of the matter asserted in them.
I note that the cards are, on their face, somewhat suspect. They assert a seven-month retroactive revocation. Also note that although it’s hearsay and as I say I cannot rely on it for the truth of the matter asserted, the only foundation evidence
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in the record as to
how the cards came about is the hearsay statement to
Given the state of the evidence I cannot find that there was valid evidence of revocation that would limit the employer’s obligation to deduct and remit dues to February 6, 2004.
I grant the General Counsel’s motion to amend the complaint, find that the employer’s violation in failing to deduct dues, deduct and remit dues continued through the expiration of the labor agreement on September 30, 2004.
I also find that the conduct of the employer constitutes a whole scale repudiation of the 1 collective bargaining agreement as of July 11, 2003.
To review, we have a repudiation of the seniority clause in the labor agreement, of the dues check off clause and of the pension provision set in the context of anti union animus and discrimination against local union officials in an effort of Respondent to rid itself of the union.
These are serious 8(a)(5) violations that strike at the heart of the protection’s offered by the contract, in particular the loss of seniority and pension contributions cannot be considered fringe or
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minor or technical repudiations by the employer.
Similarly the Board has found that an employer’s failure and refusal to make payments for severance pay, vacation pay and health insurance premiums constitutes a repudiation of a contract and that’s Victory Specialty Packaging Inc. 331 NLRB Number 139 from the year 2000 and then the famous case of Oak Cliff and Gold Baking Company 207 NLRB 1063 from 1972 where the Board said that an across the board wage reduction constitutes a general repudiation of the collective bargaining agreement.
Here I believe that the elimination of pension contribution and especially the elimination of seniority is of that severe in nature and renders the contract repudiated.
I turn now to the evidence found in Union Representative Moore’s testimony and in General Counsel’s Exhibits 22, 23, 25 and 26, that the employer failed and refused to recognize and bargain with the union for a successor labor agreement to replacement of the agreement set to expire September 30, 2004.
The union repeatedly requested bargaining for a successor contract. The first request was made July 7, 2004 and the employer ignored that and
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subsequent requests at one point claiming flood damage and saying the employer would get back to the union, which it did not do
Even after September 30, 2004 the union’s request for dates and times to meet was met with silence. There’s no excuse offered for this failure to meet and bargain.
It’s a straightforward per se refusal to bargain under Section 8(a)(5) of the Act and it’s also a violation of 8(a)(1) and many cases support that proposition. For instance B & B Gallo Pest Control Services 265 NLRB 535 from 1982, Associated Constructors 325 NLRB 998 at 1009 from 1998, Automatic 1Sprinkler Corp. 319 NLRB 401 at Page 402 from 1995.
Finally, the General Counsel alleges that Respondent maintained and enforced an overly broad prohibition on union activity. That restriction is found in the collective bargaining agreement at Article 1, Section 6.
It states in relevant part quote “Union property except as provided in this agreement—I’m sorry, strike that. Quote—it states in relevant part quote “Union activity except as provided in this agreement shall not be engaged in on company time or property” end quote.
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This is a facially unlawful clause. It is of no relevance that the union agreed to it in the collective bargaining agreement. It is far more restrictive of employer’s rights than what is permitted under the Act.
It targets all and only union activity. It prohibits it on all company property, not just working areas, and it prohibits it on company time, not just while working.
It is therefore patently unlawful and I find its maintenance enforcement is a violation of Section 8(a)(1) of the Act and cases that support that include Jenson Enterprises 339 NLRB 877 at 878, stands for the proposition that employer may not restrict union related conversation while permitting conversation relating to other topics.
Also important is cases that support the proposition that the words company time’ may be reasonably construed to mean that any discussion of union or union related matters at any time, including during breaks and other non working periods, is prohibited and that’s unlawful.
And so clauses would—the words prohibiting union activity on company time are presumptively unlawful and there’s, of course, been no
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rebutting of that presumption in this case. Those cases include M.J. Mechanical Services Inc. 324 NLRB 812 at 813 from 1997 and RCN Corporation 333 NLRB 295 from 2001.
So that’s my decision. I enter an order consistent with it. I wont restate my conclusions of law here now. I’ve described them. I will restate them when I issue the follow up written decision that will come up with the full recommended order remedy and notice.
The remedy for these violations of the Act that I found will be for Respondent to cease and assist there from and take affirmative action designed to effectuate the purpose of the Act.
Such affirmative action shall include making each employee laid off on July 14, 2003 as part 1 of the employer’s unlawful lay off whole for loss wages and benefits, offering reinstatement to employees Brawdy and Palmer to their former positions.
Such affirmative action will also include rescinding the rule against union activity on company time found in Article 1 of the expired collective bargaining agreement and informing employees that the rule has been rescinded.
The affirmative action will include
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reimbursing the union for loss dues that should have been paid contractually but were not paid because of the employer’s repudiation of the dues check off provision during the term of the agreement.
The affirmative action will include remitting all pension payments due under the collective bargaining agreement on behalf of unit employees from the time the employer unilaterally withdrew from the pension fund and failed to make pension contributions.
The affirmative action shall include upon the demand of the union meeting and conferring for the purpose of bargaining a successor collective bargaining agreement.
The affirmative action shall also require that Respondent rescind its repudiation of the now expired contract and notify the union in writing that it will honor the terms of that contract through the period until the contract expired.
And the remedy will also include an order that informational notice, that I will describe in more detail in my follow up written decision, will be posted.
Effectively it will say that the employer will not take these kinds of acts or anything like
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them that will interfere, restrain or coerce employees in the exercise of their Section 7 rights and that the employer will make the employees and the union whole as I’ve described in the remedy, and I will describe in more detail in my written decision.
This notice will be posted in the employer’s facility