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,
Tecumseh Packaging Solutions, Inc. and United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Service Workers
International
June 2, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On July 16, 2007, Administrative Law Judge Karl H. Buschmann issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed an answering brief.
The National Labor Relations Board has considered the judge’s decision and the record in light of the exceptions[1] and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.[2]
The judge found that the Respondent did not violate
Section 8(a)(1) of the Act by promulgating and maintaining an overly broad
no-loitering rule. We disagree. In Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004), the Board found that a rule prohibiting “[l]oitering on
company property (the premises) without permission from the Administrator”
violated Section 8(a)(1) of the Act because it would reasonably chill employees
in the exercise of their Section 7 rights.
The Respondent raises various concerns that may prompt an employer to ban after-hours loitering, such as prevention of violence and avoidance of liability for accidents and injuries. Such concerns may well be legitimate, but our decision does not prevent employers from maintaining rules and policies tailored to those concerns. What employers may not do, however, is maintain overbroad no-loitering rules that reasonably tend to chill the exercise of Section 7 rights.[3]
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified and set forth in full below
and orders that the Respondent, Tecumseh Packaging Solutions, Inc.,
1. Cease and desist from
(a) Maintaining employee work rules containing overly broad prohibitions against loitering, solicitation, or distribution.
(b) Refusing to bargain with the
(c) Giving effect to a complaint procedure contained in its unilaterally implemented employee handbook.
(d) 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) Rescind its overly broad work rules prohibiting solicitation and distribution of union material during working hours and loitering on company property after working hours.
(b) Upon request of the
(c) Before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employees, notify and, on
request, bargain with the
All production and maintenance employees employed by the Respondent at its 707 S. Evans Street, Tecumseh, Michigan location; but excluding all supervisors, office workers, and guards.
(d) Rescind any discipline issued to unit employees as a result of the unilateral implementation of rules contained in the employee handbook, and make its employees whole for any losses suffered as a result of the unilateral implementation of those rules.
(e) Within 14 days from the date of this Order, remove from its files any reference to any such discipline, and within 3 days thereafter notify the employees in writing that this has been done and that the discipline will not be used against them in any way.
(f) 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.
(g) Within 14 days after service by the Region, post at
its facility at
(h) 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,
______________________________________
Peter C. Schaumber, Chairman
______________________________________
Wilma B. Liebman, 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 maintain employee work rules containing overly broad prohibitions against loitering, solicitation, or distribution.
We will not refuse to bargain with United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO (the Union), as the collective-bargaining representative of our employees in an appropriate bargaining unit by making unilateral changes in their terms and conditions of employment.
We
will not give effect to the
complaint procedure contained in the employee handbook that we unlawfully
implemented without bargaining with the
We will not in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights set forth above, which are guaranteed by Section 7 of the Act.
We will rescind our overly broad work rules prohibiting solicitation and distribution of union material during working hours and loitering on company property after working hours.
We
will, if the
We
will, before implementing any changes in wages, hours, or other terms
and conditions of employment, notify and, on request, bargain with the
All production and maintenance employees employed by the Respondent at its 707 S. Evans Street, Tecumseh, Michigan location; but excluding all supervisors, office workers, and guards.
We will rescind any discipline we issued any of you as a result of our unlawful unilateral implementation of rules contained in the employee handbook, and WE WILL make our employees whole for any losses suffered as a result of the unilateral implementation of those rules.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to any such discipline, and we will, within 3 days thereafter, notify the affected employees in writing that this has been done and that the discipline will not be used against them in any way.
Tecumseh Packaging Solutions, Inc.
Michael P. Silverstein, Esq., for the General Counsel.
Robert J. Brown, Esq. (Thompson Hine, LLP), of
John G. Adam, Esq. (Martens, Ice, Klass,
Legghio & Israel, P.C.), of
DECISION
Statement of the Case
Karl H. Buschmann,
Administrative Law Judge. This case was
tried in
By order consolidating cases and notice of hearing, dated
January 28, 2007, the Regional Director ordered that Case 7–RD–3544, a petition
to decertify the Union, be consolidated for the purpose of a hearing to
determine whether the unfair labor practices alleged in the complaint in Case
7–CA–49861 bear a causal relationship to the employee disaffection reflected in
the filing of the decertification petition.
Following the hearing in Case 7–CA–49861
and having performed the function of the hearing officer in Case 7–RD–3544, as
requested by the Regional Director, Case 7–RD–3544 was severed at the conclusion
of the hearing and remanded to the Regional Director for appropriate
disposition of the case in accordance with Section 102.64 through 104.66 of the
Board’s Rules and Regulations.
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, the Charging Party, and the Respondent, I make the following
Findings of Fact
i.
jurisdiction
The Respondent, Tecumseh Packing Solutions, Inc., is an
Ohio corporation, engaged in the manufacture, nonretail sale and distribution
of corrugated paperboard boxes and related products at its facility at 707 S.
Evans Street, Tecumseh, Michigan, where it annually derived revenues in excess of
$500,000 and purchased goods and materials valued in excess of $50,000 from
points located outside the State of Michigan.
The Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that
the
ii. alleged
unfair labor practices
The Respondent, Tecumseh Packaging Solutions, Inc. is the
successor to Tecumseh Corrugated Box (TCB), which manufactured and sold paper
corrugated boxes in several facilities in
By letter of March 24, 2006, TCB advised the
Upon learning of the events, Connie Malloy, staff representative
for the
Having completed the assets acquisition on June 12, 2006, the Respondent began operations without interruption at the same location using the same equipment with 28 full-time production and maintenance employees of the predecessor and approximately 6 temporary employees (Jt. Exh. 1). Jeff Robideau, the prior president, continued as the general manager of the newly named company. Initially, the Respondent operated with one shift, after a few weeks the Employer expanded the operation to two shifts. All employees received a set of work rules (GC Exh. 15). The rules contain the following prohibitions: Engaging in any unauthorized activity during working hours that is not related to the employee’s regular job responsibilities; [p]osting, distribution [sic], or circulating of unauthorized notices, posters, and placards during working hours and in working areas. The rules also prohibit “[l]oitering on Company property after working hours.”
By letter of June 20, 2006, the
Prior to any meeting with the
The first bargaining session was held on July 26,
2006. Representing the
The parties did not meet for their next bargaining session
until September 22, 2006. In the
meantime, the Respondent implemented several terms and conditions of employment
which, according to the General Counsel, should have been the subject of
collective bargaining with the
Similarly, the Respondent effectuated a change in computating overtime for employees who worked following a holiday. The Respondent posted a memorandum on July 26, 2007, entitled, “Notice Regarding Tecumseh Packaging Solutions, Inc. Overtime Pay Policy.” The Respondent announced that there “has been a change to the way overtime hours are calculated when considering hours worked” (GC Exh. 16). Even though the Union had raised the issue at the bargaining table and made the same proposal in its contract offer, the Respondent failed to notify the Union and to bargain with the Union, when it posted the memorandum notifying the employees of the policy changes (GC Exh. 8, p. 6).
In August or September 2006, the Respondent conducted an
informational meeting with the employees about the Company’s 401(k) plan. Representatives from UBS Financial and
Hartford Insurance were present and discussed investment options. The Respondent did not notify the
At the May 8, 2006 meeting with the employees, the Respondent
assured the employees that it hoped to provide them with comparable medical
insurance. The Respondent had obtained
Humana PPO healthcare coverage for its employees (R. Exh. 6). During the July 26, 2006 bargaining session,
the
On September, 22, 2006, the parties held their second bargaining
session. The
The final issue involved Timothy Michels, an employee and
union president of Local 1026. He
submitted a grievance report, dated September 27, 2006, to Rob Waynick,
production manager, complaining about the Company’s failure to perform bidding
for available jobs (GC Exh. 23). In the
middle of October 2006, Waynick returned the grievance to Michels telling him
that the Company would not accept the grievance, and advised him to use the
company complaint procedure contained in the employee handbook. Michels requested Waynick to confirm this in
writing. Waynick complied, stating: “For
any issues in the workplace the employee’s handbook has a complaint procedure
that needs to be followed” (GC Exh. 24).
The Union challenged the procedure, because the handbook was implemented
without bargaining with the
Analysis
The parties are in agreement that the Respondent is a
successor corporation to TCB. This
becomes clear, considering the totality of the circumstances showing a
continuity of the business operation in the same plant with the same, albeit reduced,
work force, performing the same work on the same equipment and producing the
same products under the same manager, namely Jeff Robideau as general
manager. As a successor employer, the
Respondent has the right to set the initial terms of employment for the
employees. However, the bargaining obligation
attaches once a successorship exists, that is when the holdover employees
constitute a majority of the employees.
At that point unilateral changes in existing terms become unlawful. NLRB v. Burns Security Services, 406
The record shows that the Respondent told the employees at the May 8, 2006 meeting that it would not be bound by the predecessor’s collective-bargaining agreement and announced the initial terms of employment, which included the employees’ wages, their work shifts, different health insurance, and the elimination of the Employer’s pension and insurance expenses. With the commencement of its operation on June 12, 2006, the Respondent had implemented its work rules, including healthcare coverage for the employees by the Humana health plan.
By letter of June 20, 2006, the
In August 2006, the Respondent announced to the employees
that it changed insurance companies from Humana to Blue Cross Blue Shield,
effective October 1, 2006. As already discussed
above, it was understood at the first bargaining session that the
The Parties agree that the Company’s work rules do not address
the issue of overtime pay as a result of a holiday. However, the Union’s contract proposal
submitted at the July 26, 2006 bargaining session does contain such a
provision, which states that “time lost from work due to vacation, holidays,
and union business shall be considered as time worked for purposes of
calculating overtime pay.” The issue
arose when an employee was not paid following the July 4 holiday. The issue was presented to David Degner,
administrative manager. Degner posted a
notice in July 2006 regarding the Company’s holiday policy, stating that there “has
been a change to the way overtime hours are calculated when considering hours
worked.” According to the notice, the Respondent agreed to consider holiday and
vacation hours when figuring overtime so that employees were paid overtime
following the July 4 holiday. The
Respondent strongly argues that the matter was a mere ministerial correction
rather than a change in policy, and points to the testimony of the Company’s
negotiators that the issue was not discussed at the bargaining session. The union witnesses disagreed and clearly
recalled discussing the issue.
Considering the demeanor of the witnesses, as well as the wording of the
notice and the terms in the
At the May 8, 2006 meeting with the employees, the Respondent
announced that it would offer a 401(k) plan.
On about July 26, 2006, the Respondent posted a notice, entitled, new
401(k) plan, notifying the employees that the plan would be set up with the projected
enrollment date of September 1, 2006, to be administered by UBS Financial
Services and Hartford Insurance Company.
Although the Respondent admitted that it did not inform nor bargain with
the Union concerning the implementation of the plan, the Respondent argues that
it had no obligation to do so, reasoning that the matter had been announced
before the bargaining obligation attached and the Respondent had the right to
set its own terms and conditions of employment.
However, the General Counsel has shown that the program was not in
effect at the May meeting, and that the
In late August or early September when the employees were
meeting with representatives of UBS and
Finally, the Respondent improperly rejected a grievance submitted by Timothy Michels to Rob Waynick, Respondent’s production manager. The grievance, dated September 12, 2006, challenged the Company’s bidding procedure. A month later, Waynick responded and directed Michels in a memorandum, dated October 13, 2007, to follow the Company’s complaint procedure contained in the employee handbook. As discussed above, the complaint procedure was one of the provisions unilaterally implemented by the Respondent, when it distributed the employee handbook. Clearly, the Respondent effectuated an improperly implemented work rule contained in the employee handbook.
The General Counsel also challenges two work rules promulgated on June 12, 2006, as overly broad and a no-access rule as invalid. The Respondent concedes that its work rules which prohibit solicitation and distribution of literature during working hours are in conflict with established law and argues that no employees have been disciplined for violating the rules. I accept the Company’s representation that none of the employees have been disciplined because of the prohibitions. But maintaining such provisions has a tendency to intimidate the employees. In this regard the law is clear, employees have the right to solicit or distribute union material on their own time. Prohibiting union activity during working hours, as distinguished from working time, is presumptively invalid. Our Way, Inc., 268 NLRB 394 (1983). The record does not show that the Respondent has tolerated solicitation during breaktime or during nonworking time. Accordingly, the rules are facially invalid and unlawful. But I find the other prohibition against loitering on company property lawful. I agree with the Respondent that an employer should have the right to prohibit loitering on company property.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. The following employees of the Respondent constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(c) of the Act:
All production and maintenance employees employed by the Respondent at its 707 S. Evans Street, Tecumseh, Michigan location; but excluding all supervisors, office workers, and guards.
4. By implementing the following terms and conditions of employment without notice to the Union and without affording it an opportunity to bargain collectively and in good faith, the Respondent violated Section 8(a)(1) and (5) of the Act
(a) Unilaterally implementing a wage increase for the unit employees.
(b) Unilaterally implementing changes to the health insurance of unit employees.
(c) Unilaterally implementing a change in the manner of calculating unit employees’ overtime hours related to holidays.
(d) Unilaterally implementing a new 401(k) plan for its unit employees.
(e) Unilaterally implementing a new employee handbook for its unit employees, and attempting to effectuate a complaint procedure contained in the handbook.
5. By maintaining work rules containing overly broad solicitation and distribution provisions, the Respondent interfered with the employees’ Section 7 rights, in violation of Section 8(a)(1) of the Act.
6. The unfair labor practices found 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 and to take
certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent failed to
bargain collectively and in good faith by unilaterally implementing certain
working conditions, it must be ordered to bargain in good faith with the Union
and on request by the
ORDER
The Respondent, Tecumseh Packaging Solutions, Inc.,
1. Cease and desist from
(a) Maintaining employee work rules containing overly broad prohibitions against union solicitation or distribution of union material.
(b) Refusing to bargain collectively and in good faith
with the
All production and maintenance employees employed by the Respondent at its 707 S. Evans Street, Tecumseh, Michigan location; but excluding all supervisors, office workers, and guards.
(c) Unilaterally implementing the following terms and conditions of employment for unit employees: Wage increases, changes to health insurance policies, changes to the manner of calculating overtime relating to holidays, a new 401(k) program, promulgation of a new employee handbook and effectuating an internal complaint procedure contained therein.
(d) In any like or related manner interfering, restraining, or coercing employees in the exercise of the rights under Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind its overly broad work rules prohibiting union solicitation or distribution of union material during working hours.
(b) On request by the Union, rescind the above-mentioned unilateral changes in the terms and conditions of employment, and rescind any discipline issued to unit employees as a result of the unilateral implementation of rules contained in the employee handbook, remove any discipline from its files and so inform the employees when that has been done and make them whole for any losses suffered as result of the unilateral implementation of the work rules contained in the handbook with interest in accordance with applicable decisions.
(c) On request, bargain with the Union as the exclusive representative of the employees in the above-mentioned appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement.
(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 facility at
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible official on a form
provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
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 maintain employee work rules containing overly broad prohibitions against union solicitation or distribution of union material.
We will not refuse to bargain collectively and in
good faith with the
All production and maintenance employees employed by the Respondent at its 707 S. Evans Street, Tecumseh, Michigan location; but excluding all supervisors, office workers, and guards.
We will not unilaterally implement the following terms and conditions of employment for unit employees: Wage increases, changes to health insurance policies, changes to the manner of calculating overtime relating to holidays, a new 401(k) program, and promulgation of a new employee handbook and effectuating an internal complaint procedure contained therein.
We will not in any like or related manner interfere, restrain, or coerce employees in the exercise of the rights under Section 7 of the Act.
We will rescind our overly broad work rules prohibiting union solicitation or distribution of union material during working hours.
We will on request by the Union, rescind the above-mentioned unilateral changes in the terms and conditions of employment, and rescind any discipline issued to unit employees as a result of the unilateral implementation of rules contained in the employee handbook, remove any discipline from its files and so inform the employees when that has been done and make them whole for any losses suffered as a result of the unilateral implementation of the work rules contained in the handbook with interest in accordance with applicable decisions.
We will on request, bargain with the Union as the exclusive representative of the employees in the above-mentioned appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement.
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.
Tecumseh Packaging Solutions, Inc.
[1] No exceptions were filed to the judge’s findings that the Respondent violated Sec. 8(a)(1) and (5) of the Act by unilaterally implementing the following changes in the unit employees’ terms and conditions of employment: a wage increase, changes in health insurance, a change in the manner of calculating overtime hours, a new 401(k) plan, and a new employee handbook. There were also no exceptions to the judge’s findings that the Respondent violated Sec. 8(a)(5) by effectuating a complaint procedure contained in the unlawfully implemented handbook, and Sec. 8(a)(1) by maintaining work rules containing overly broad solicitation and distribution prohibitions.
[2] Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.
We will modify the judge’s recommended Order to conform to
the violations found and to the Board’s standard remedial language. We will also substitute a limited bargaining
order for the judge’s recommended affirmative bargaining order in accordance
with
[3]
We reject the Respondent’s suggestion that
[4] If
this Order is enforced by a judgment of a
1 If no exceptions are
filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48
of the Rules, be adopted by the Board and all objections to them shall be
deemed waived for all purposes.
2 If this Order is
enforced by a judgment of a