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,
Quebecor World Mt. Morris II, LLC and Graphic Communications Conference/ International Brotherhood of Teamsters, Local 65-B. Case 33–CA–15319
September 8, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
The issues before the Board in this case are whether the Respondent violated Section 8(a)(5) and (1) of the Act by: (1) unilaterally implementing a “Performance Improvement Plan” (PIP) procedure as part of its disciplinary system; (2) demoting employee Robert Gigous pursuant to a PIP; and (3) refusing to provide relevant information requested by the Union in the course of processing a grievance over the PIP procedure. The judge found that the Respondent committed all of these alleged unfair labor practices.[1]
The National Labor Relations 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 to adopt the recommended Order as modified and set forth in full below.[2]
We agree with the judge that the Respondent unlawfully
refused to provide requested information to the
However, we conclude that the judge erred in finding
unlawful the unilateral implementation of the PIP procedure and its application
to employee Gigous. We find, rather,
that the Respondent and the Union properly extended their expiring
collective-bargaining contract by oral agreement and that, under the contract’s
management-rights provision, the
A. Factual and Procedural Background
The Respondent prints newspaper supplements and mail-order
catalogs.[4] Its facility involved here is located in
On or about March 31, 2006,[5]
the date that the parties’ most recent collective-bargaining agreement was set
to expire, the chief negotiators for the Respondent and the
On September 7, employee Gigous received his annual written performance review; at the same time, he received a PIP. The PIP called for an extended, close evaluation of Gigous’ performance over 90 work shifts. At the end of that period, absent improvement, he would be subject to further discipline, including discharge or demotion. No unit employee had previously received a PIP, or had otherwise been disciplined in conjunction with receipt of his or her annual performance review.
On February 26, 2007, at the conclusion of the PIP’s required 90 work shifts, Gigous was demoted to a lower-paying job in the finishing department.
Following the
The judge rejected the Respondent’s contention that implementation of the PIP process was permitted under the management-rights clause in the parties’ expired collective-bargaining agreement. He concluded that because there was no “formal,” i.e., written, extension of the agreement, it ceased to govern the parties’ relationship as of expiration. Relying on the principle that management-rights provisions do not survive contract expiration (absent evidence of the parties’ contrary intention),[9] the judge found that no waiver, contractual or otherwise, of the Union’s right to bargain about mandatory matters such as the PIP was in effect at the time the process was implemented. Having concluded that the management-rights clause was not a relevant consideration, the judge proceeded to evaluate the unilateral-change allegations, and to find that the Respondent’s conduct violated the Act.
B. Analysis
In its exceptions, the Respondent renews its contention that the management-rights clause continued in effect pursuant to the parties’ oral extension of the collective-bargaining agreement, and that this contractual provision privileged the Respondent’s unilateral implementation of the PIP process. We agree.
1. The oral extension of the parties’ agreement.
The judge’s view that continued operation of the management-rights clause required a written extension of the collective-bargaining agreement is erroneous. It is established law that a collective-bargaining agreement need not be in writing to be enforceable. See, e.g., Merk v. Jewel Food Stores, 945 F.2d 889, 895 (7th Cir. 1991); NLRB v. Haberman Construction Co., 641 F.2d 351, 355-356 (5th Cir. 1981); Certified Corp. v. Hawaii Teamsters & Allied Worker, Local 996, 597 F.2d 1269, 1272 (9th Cir. 1979). It is also well-established that an expiring written collective-bargaining agreement may be orally extended, at least in the absence of a contractual prohibition on oral modifications. See, e.g., Certified Corp. v. Hawaii Teamsters, supra, 597 F.2d at 1271.[10] The collective-bargaining agreement in the present case does not prohibit oral modifications.
Board precedent also sheds light on the effect of an oral
extension on waiver provisions which normally do not survive contract expiration.
In Granite
Construction Corp., 330 NLRB 205, 207–208 (1999), the Board dismissed
8(a)(3) allegations involving the discharge of strikers, finding that a
contractual no-strike clause continued in effect after the employer and the union
orally agreed to extend their expiring contract. Accord: Kroger
Co., 177 NLRB 769, 776 (1969), affirmed sub nom. Silbaugh v. NLRB, 429 F.2d 761 (D.C. Cir. 1970) (striking employees
were lawfully discharged where a no-strike provision remained in effect after
the parties orally agreed to extend their expiring contract).
No-strike clauses, like management-rights provisions, do not routinely survive contract expiration.[11] But, as the cases above establish, a no-strike clause will continue in effect when the parties orally agree to extend an expiring contract. Board decisions involving management-rights clauses are not to the contrary. See University of Pittsburgh Medical Center, 325 NLRB 443, 443 fn. 2 (1998) (interpreting Lustrelon, Inc., 289 NLRB 378 (1988), as holding that provision in expired agreement authorized unilateral action by employer, where parties had reached oral understanding to abide by agreement until new contract was reached). In light of this Board precedent, we hold that a management-rights clause, like a no-strike clause, remains in effect when the contracting parties orally agree to extend their agreement.
There is no significant dispute in this case that the Union and the Respondent orally agreed to extend their collective-bargaining agreement in its entirety on March 31, and that it continued to govern unit employees’ employment conditions at all relevant times. Accordingly, the contract’s management-rights provision was in effect when the Respondent implemented the PIP process.[12]
2. The management-rights clause and the
Because the management-rights clause was operative, we
must determine whether relevant language in the clause constituted a “clear and
unmistakable” waiver of the
In its entirety, article IV “Management Rights” of the parties’ extended contract states as follows:
Except as limited by the express provisions of this Agreement, the Company shall have the exclusive right to manage the plant and to direct the working forces including, but not limited to, the right to direct, plan and control plant operations; to assign employees; to establish and change work schedules; to hire, recall, transfer, promote, demote, suspend, discipline or discharge for cause; to lay off employees because of lack of work or other legitimate reasons; to establish and apply reasonable standards of performance and rules of conduct; to determine quality standards and production schedules; to determine whether to contract out or subcontract work or services; to determine the number and location of its plants; and to decide products to be manufactured; all of which functions shall be executed in a manner consistent with the terms of this contract.
In light of Provena,
it is apparent in the present case that, on the face of the management-rights
clause, the
Accordingly, we dismiss the allegation that implementation of the PIP process violated Section 8(a)(5).[13] Because the allegation that Gigous was unlawfully demoted is based on the argument that implementation of the PIP process was unlawful, we dismiss that claim as well.[14]
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, Quebecor World Mt. Morris II, LLC,
1. Cease and desist from
(a) Refusing to bargain collectively with Graphic Communications
Conference/International Brotherhood of Teamsters, Local 65-B, by failing and
refusing to provide requested information that is relevant and necessary to the
All employees employed in the Finishing Department at the
Company’s existing plant at
(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) Provide the information requested by the
(b) Within 14 days after service by the Subregion, post at
its facility in
(c) Within 21 days after service by the Subregion, file with the Regional Director a sworn certification of a responsible official on a form provided by the Subregion 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
refuse to bargain collectively with Graphic Communications Conference/ International
Brotherhood of Teamsters, Local 65-B, by failing and refusing to provide requested
information that is relevant and necessary to that
All employees employed in the Finishing Department at the
Company’s existing plant at
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 provide
to the
Quebecor World Mt. Morris II, LLC
Debra L. Stefanik, Esq., for the General Counsel.
Steven L. Hamann, Esq., for the Respondent.
Thomas D. Allison, Esq., for the Charging Party.
DECISION
Statement of the Case
George
Carson II, Administrative Law
Judge. This case was tried in
On the entire
record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by all parties, I make the following
Findings of Fact
i. jurisdiction
The Respondent,
Quebecor World Mt. Morris II, LLC, the Company, a
The Respondent
admits, and I find and conclude, that Graphic Communications
Conference/International Brotherhood of Teamsters, Local 65-B, the
ii. alleged unfair labor practices
A. Background
The Company,
headquartered in
All employees employed in the Finishing Department at the
Company’s existing plant at
The collective-bargaining
history of the unit of finishing employees dates from 1918. The prior
collective-bargaining agreement expired on March 31, 2006. At the time of the
hearing the parties had been unable to agree upon a successor agreement.
Undisputed testimony establishes that, at a bargaining session shortly before
the expiration of the prior agreement, Company spokesperson David McCarthy
asked if the
The complaint
allegations relate to the placing of employee Robert Gigous upon a performance
improvement plan on September 7, his demotion on February 26, 2007, and requests
of the
B. Facts
Two witnesses
testified: Human Resources Manager Ron Slade and Union Vice President and
Steward Daniel Strohecker. Documentary evidence establishes various relevant
communications between the parties. The material facts are virtually
undisputed.
Employee Robert
Gigous, a third-shift finishing employee, received his annual performance
review on September 7, and on that same day he was placed on a “90 Shift Performance
Improvement Plan.” Thus, Gigous had to work 90 shifts under the plan, a time
period exceeding 3 months. No unit employee in the finishing department unit
had previously been placed upon any performance improvement plan.
Article IV, Management Rights, of the expired contract provided, in pertinent part:
Except as limited by the express provisions of this Agreement, the Company shall have the exclusive right to manage the plant and to direct the working forces including but not limited to the right to direct, plan and control plant operations; to assign employees; to establish and change work schedules; to hire, recall, transfer, promote, demote, suspend, discipline or discharge for cause; . . . to establish and apply reasonable standards of performance and rules of conduct . . . all of which functions shall be executed in a manner consistent with the terms of this contract.
Prior to September
7, derelictions in performance by finishing department unit employees had been
addressed by a “Corrective Action Notice” that sets out a list of offenses: excessive
absenteeism, misconduct, insubordination, unsafe work practice, work
performance and “Other,” and the level of punishment being administered,
beginning with a verbal warning and continuing with a written warning,
administrative suspension, suspension, “Immediate Suspension/Investigation,”
and discharge. The
The management-rights
clause in the expired agreement makes no mention of discipline for receipt of a
substandard performance review. There is no reference to performance improvement
plans in the clause.
Human Resources
Manager Slade testified that four press employees, in a different unit represented
by a different local union, had been placed upon performance improvement plans,
but those documents were not placed into evidence. Whether these were imposed
with annual performance reviews or were 90 shift plans is not established.
There is no evidence that the
Prior to September
7, no finishing unit employee had been placed upon a performance improvement
plan or been disciplined in conjunction with an annual performance review. Human
Resources Manager Slade testified that the Company considered the performance
improvement plan to have constituted discipline, but “[a] lighter form of
discipline.”
Article V,
Grievance and Arbitration, provides that “any dispute or difference . . . as to
the meaning and application of any provision of this agreement . . . shall be
settled through the following steps of the grievance procedure . . . .” Step 1 provides that the “aggrieved employee,”
with his steward if desired, “may present the grievance orally to his immediate
supervisor.” Although a grievance is to be presented within 5 work days after
the cause of the grievance “or after notice thereof to the
At step 2, the
grievance having been reduced to writing is submitted to “the area Superintendent
or his designee.” Human Resources Supervisor Jim Adams is the designee for step
2 grievances. At step 3 the grievance is submitted to Human Resources Manager
Slade.
Article XII,
Seniority, section 1(c), defines “Classification Seniority” as an “employee’s
length of continuous service since his permanent transfer to the
classification.” Section 8(a) of Article XII grants the Company the right to
reduce the number of employees in a classification by (a) temporary transfer “not
to exceed two (2) shifts” or (b) removal of “[e]mployees with the least
classification seniority.”
There is no
provision in the collective-bargaining agreement relating to information
requests. Union Vice President Strohecker testified without contradiction that
he makes most of his information requests to Human Resources Manager Slade.
Slade agreed that information requests unrelated to grievances are made
directly to him, but that when a grievance was pending, he would refer any
request “to the property [sic] level,” the first line supervisor at the first
step, Human Resources Supervisor Adams at the second step.
On September 8,
Vice President Strohecker, having learned that employee Gigous had been placed
upon a performance improvement plan, addressed his immediate supervisor, Brian
Riesselman, regarding “what was up” with Gigous and “what was going on with
this performance improvement plan.” Riesselman replied that “he didn’t really
know” because it was done on the third shift. Strohecker asked what the
intentions of the Company were, and Riesselman replied that “he wasn’t involved
with it.” Thus, the parties did not, relative to step 1 of the grievance
procedure, “satisfactorily adjust the matter.” Strohecker stated that the
In a letter from
Vice President Strohecker to Human Resources Manager Slade dated September 8,
but personally delivered on September 12, the subject of which was “Union objection
to unilateral change in conditions of employment-Implementation of 90 Shift
Performance Improvement plan,” the
This is to advise you that . . . [the Union] has learned
that you have a new policy [a]ffecting conditions of employment for our members
in the
The Union would request a meeting with you so that you can
provide information regarding the policy and all information you may possess
that will subsequently permit the
The letter was
given to Slade following a meeting regarding a different matter. Immediately
prior to handing the foregoing letter to Slade, with copies for Human Resources
Supervisor Jim Adams and Superintendent John Cheever, who had been in the
meeting, Strohecker asked “what was going on” with regard to Gigous.
On September 14,
Slade wrote Strohecker acknowledging his receipt of the letter on September 12,
and noting that he had been informed that a grievance had been filed. The
letter continues stating:
This being the case, it would not be appropriate to have a
separate discussion while this is in the grievance process. After the
None of the
information sought in the
On November 14,
Strohecker wrote Slade again, protesting the implementation of the new policy,
noting that the
Your response to this dated September 14, 2006, stated
that you felt it would not be “appropriate to have a separate discussion while
this is in the grievance process.” To date the
All records of performance reviews for Robert Gigous, as well as all other Bindery Machine Operators. All records of machine performance for Robert Gigous, as well as all other Bindery Machine Operators. All records of discipline for work performance for Robert Gigous, as well as all other Bindery Machine Operators. All other records, correspondence, interview notes, investigative reports, supervisor’s notes, and any other documents or factual information relied upon by the company in their decision to implement this Performance Improvement Plan.
On November 21,
Strohecker sent an e-mail to Slade to confirm that he had received his letter
dated November 14. Slade responded by e-mail and referred Strohecker to his response
of September 14. On November 22, Strohecker acknowledged that he had received
that letter but pointed out that “we have not received anything at all in the
way of information or any meetings.” He pointed out that the information
request was expanded “so we have data for comparison and evaluation.”
On the afternoon of
November 22, Slade replied by e-mail that he “had no idea you were expecting
anything from me at this time on this issue.” He cited his letter of September
14, referring to the grievance procedure and closed by asking, “Has the
grievance process been followed?”
The next
communication, following the Thanksgiving holiday is from Strohecker to Slade.
It states that the
We have been waiting for the requested information, and saw a need to expand that request to try and better understand and evaluate the impact of this situation on our members. As previously stated, when we receive the requested information, and have had time to review it, we will contact [y]ou {or Jim Adams} to schedule a meeting and proceed with the grievance. We have just been waiting to receive the information we have requested.
On November 29,
Slade responded, referring to his letter of September 14 and his e-mail of
November 22. He repeated, in response to the request for a meeting, that he had
informed Strohecker “to follow the grievance process.” The e-mail then states, “I
have no knowledge of the status of the first step meeting but according to Jim
[
On December 10,
Strohecker sent an e-mail stating that he “thought when the grievance was
reduced to writing, it was a request for a second step meeting.” He then
pointed out that “the
Slade responded to
the foregoing e-mail stating that he realized that “the grievance was
documented,” i.e., reduced to writing, but that, to his knowledge, “a grievance
was never presented to the proper people. . . . [T]he grievance procedure . . .
starts with the first step.”
On December 26,
Strohecker sent an e-mail to Slade noting that the grievance procedure was
followed in that he, Strohecker, spoke with his immediate supervisor before
filing the grievance and that his supervisor denied any knowledge of the plan
which constituted “an unsatisfactory adjustment from the
On January 3, 2007,
Slade responded stating that, at step 1, “the aggrieved employee should present
the grievance to the supervisor involved in the dispute” and that “mentioning
it to another supervisor . . . does not qualify as following the grievance
process.”
On January 9, 2007,
Strohecker replied by e-mail to Slade explaining that “[w]hen a company
implements a policy that is a unilateral change in conditions of employment,
all employees are aggrieved,” that he could himself be affected by the change,
and that he did address the matter with his “immediate supervisor.” Strohecker
points out that he was not “directed to anyone else in regards to the first
step,” and notes that the
On the same day,
Slade responded, pointing out that the “action [was] against Robert Gigous,”
asserting that it was not a “change in conditions of employment,” and noting
that there had been no discussion with the supervisors of Gigous. The response
does not address the requests for information that had been specifically
pointed out in Strohecker’s e-mails of December 10 and 26, as well as the
e-mail of January 9, 2007.
On January 15,
2007, Strohecker responded by e-mail stating that he had “inadvertently left
Brian’s name [Riesselman] off the [original grievance] form.” He noted that a
management official had “indicated that there was ‘a list,’” and that the foregoing
comment suggested “more than just impact on one of our members.” As already
noted, the initial grievance did not name Gigous but specifically addressed the
unilateral change. The January 15, 2007, e-mail closes by stating that “[h]opefully
now, the
There is no
evidence of any response by the Company to the foregoing e-mail. No requested
information was provided. Although Slade initially testified that he would
refer any information request “to the property [sic i.e., “proper”] level,” he
later contradicted that response and contended that the requested information
was not provided “because the
Slade admitted that
the 90 Shift Performance Improvement Plan constituted discipline, but a “lesser
form of discipline . . . not a verbal warning,” that it was viewed by management
“as a more positive step.” He acknowledged that the only discipline ever
administered in connection with an annual performance review was placement upon
a performance improvement plan. It is undisputed that the first time this
occurred with regard to a finishing unit employee was on September 7, when that
occurred to Gigous. When asked whether a hypothetical employee would agree that
being placed under a microscope for 90 shifts was preferable to simply
receiving a warning, Slade answered that he could not speak for the employee.
Gigous, after
completing the 90 Shift Plan, was demoted on February 26, 2007. The
Prior to the
demotion of Gigous, there had been two demotions of unit employees. Tom Goldie,
who had been discharged, was reinstated to a job at a lower classification than
he had previously held pursuant to a third-step grievance settlement on
December 11, 2002. Employee Rachel Pieper had been urged to voluntarily
downgrade on May 3, 2004, when the Company denied a grievance filed by the
C. Analysis and Concluding Findings
1. The unilateral change
The complaint
alleges that the implementation of the 90 Shift Performance Improvement Plan
constituted an unlawful unilateral change. “[A]n employer is prohibited from making
changes related to . . . terms and conditions of employment without first
affording the employees’ bargaining representative a reasonable and meaningful
opportunity to discuss the proposed modifications.” Flambeau
Airmold Corp., 334 NLRB 165 (2001). The Respondent gave no opportunity to
the
The Respondent
argues that it was privileged to implement the plan based upon the language in
the management-rights clause. I disagree. There was no formal extension of the
collective-bargaining agreement. As the General Counsel and Charging Party
point out, citing various cases, including Clear
Channel Outdoor, Inc., 346 NLRB 696 (2006), such clauses do not survive the
expiration of the contract absent evidence to the contrary. As stated by the administrative
law judge in Clear Channel Outdoor, Inc.:
A management-rights clause in a collective-bargaining agreement and any waivers contained therein do not survive the expiration of the contract—absent some evidence of the parties’ intentions to the contrary. Thus, any waiver of a union’s bargaining rights that relies on a management rights clause . . . is limited to the time the contract is in force, Furniture Rentors of America, 311 NLRB 749, 751 (1993), enf. denied 36 F.3d 1240 (3d Cir. 1994); Pan American Grain Co., 343 NLRB No. 47 [318] (2004). There is no evidence in this case that the parties intended that the waivers contained in the management rights provisions would survive the expiration of their collective-bargaining agreement . . . . “
The foregoing
conclusion is confirmed in this proceeding by the absence of any reliance upon
the management-rights clause by the Respondent during its September 12 conversation
with the representatives of the
The Respondent
contends that the management-rights clause did survive the expiration of the
contract, citing Castle-Pierce Printing
Co., 251 NLRB 1293 (1980). That decision is inapposite. It holds only that “rights
granted by an expired contract can be considered in evaluating whether a unilateral
change has, in fact occurred, if the employer had exercised those management
rights when the contract was in effect.”
The Respondent
herein had not, in the finishing department unit, altered the historical
disciplinary system established by the past practice of the parties or sought
to implement new forms of discipline that changed either the scope of discipline
or the method for determining the level of discipline “when the contract was in
effect.” Castle-Pierce Printing Co.,
Ibid. Gigous was not cited for any specific dereliction that justified discipline
for cause. If he had been, the
The past practice
of the parties establishes that failure to meet standards was dealt with by corrective
action notices. The offenses listed on the corrective action notices, which include
“unsafe work practice” and “poor performance,” do not include receipt of a less
than favorable annual performance review.
Slade admitted that the only discipline that had ever been administered in
conjunction with a performance review was placement upon a performance plan and
that the only occasion upon which that occurred with regard to a finishing unit
employee was on September 7, with regard to Gigious. The performance
improvement plans affecting employees in a different unit who are represented
by a different local union were not placed into evidence, and they have no
relevance or materiality to the allegations of the complaint.
Gigous had
previously received discipline pursuant to corrective action notices. Rather
than citing a specific dereliction and disciplining Gigous for cause for any
shortcoming in his performance, as it had in the past with regard to Gigous and
all other finishing unit employees, the Respondent chose to implement a policy
that effectively placed Gigous under scrutiny for 90 shifts without establishing
any deficiency in his work that merited disciplinary action. The record herein
does not establish an objective standard of performance that Gigous failed to
achieve. The plan refers to undefined “significant improvement to an acceptable
performance level” and includes the unobjective requirements of a need to “demonstrate
leadership” and “sense of urgency in your duties.” Failure to accomplish
specifics that are noted, such as the need “not be shown the same task multiple
times” and “produce his work in accordance with published quality standards,”
assuming those shortcoming were established, could have, in accord with past
practice, been appropriately dealt with pursuant to corrective actions.
Although demoted in February, Gigous did not receive any corrective action notices
when working under the 90 Shift Performance Improvement Plan.
The Board decision
in Golden Stevedoring Co., 335 NLRB
410 (2001), is instructive in this case. In that case, the respondent, following
the election victory of a union, began issuing written rather than oral,
warnings. The Board, affirming the administrative law judge, agreed that this
constituted a “material, substantial and significant” change insofar as the
change “could affect his [the employee’s] job security.”
The unilateral
implementation of the 90 Shift Performance Improvement Plan “changed both the
scope of the discipline and the method for determining the level of discipline
to be applied” to unit employees. Toledo
Blade Co., 343 NLRB 385, 388 (2004). Slade testified that he considered the
unilaterally instituted Performance Improvement Plan to be a “more positive
step.” I do not agree. No employee wants to work with someone looking over his
or her shoulder every day. I suggest that any employee would prefer to receive
a clear warning regarding a specific infraction rather than having his or her
every action scrutinized for 90 shifts.
As the Charging
Party correctly points out in its brief, “[t]he issue is not whether the
Company has the right to demote employees for cause. The issue is whether the
Company can unilaterally implement an all-new practice and policy for dealing
with issues of work performance, by no longer treating them under the
long-established progressive discipline policy, and instead treating them with
a new unilaterally implemented . . . [90 Shift Performance Improvement Plan].” Prior to the implementation of the performance
improvement plan, employees’ poor work performance was addressed by specific disciplinary
actions, each of which the
Instituting the 90
Shift Performance Improvement Plan for a less than favorable annual performance
review introduced a new form and level of discipline with undefined consequences.
The Respondent, without notice to or bargaining with the Union, expanded the
scope of discipline by issuing discipline for less than favorable annual performance
reviews and instituted a level of discipline, performance improvement plans,
that had previously not existed. Toledo
Blade Co., supra. By doing so, the Respondent violated Section 8(a)(5) of
the Act.
2. The demotion
The complaint
alleges, and the answer admits, that the Respondent “reassigned an employee in
the Unit to a lower classification and position pursuant to a 90 Shift
Performance Improvement Plan.” The demotion of Gigous resulted from his failure,
in the eyes of the Respondent, to successfully complete the 90 Shift
Performance Improvement Plan imposed upon him. The implementation of that plan
constituted a unilateral change affecting the terms and conditions of
employment of unit employees. Notwithstanding the request of the
Neither the
management-rights clause of the expired contract nor the parties past practice
permitted the action of the Respondent. Article XII of the expired contract provides
that, once an employee assumes a permanent position, loss of that position may
occur by (a) temporary transfer “not to exceed two (2) shifts” or (b) removal
of “[e]mployees with the least classification seniority.” The corrective action
notices do not provide for demotion as punishment imposed under the
disciplinary system. Slade acknowledged that demotion was not part of the
disciplinary process when employee Pieper was urged to take a downgrade.
The record
establishes two instances in which demotion occurred in a manner other than the
contractual temporary transfer or removal of an employee with the least
seniority from a permanent classification. Although the Respondent’s brief
asserts that those two demotions resulted from poor performance, the facts
reveal otherwise. With regard to Goldie, who had been discharged, the
The vice is not
what happened to Gigous; the vice, as explained by the
The demotion of
Gigous affected his terms and conditions of employment and directly resulted
from the unilaterally imposed performance plan. “If the Respondent’s unlawfully
imposed rules or policies were a factor in the discipline or discharge, the
discipline or discharge violates Section 8(a)(5).” Great Western Produce, 299 NLRB 1004, 1005 (1990). The unilateral
implementation of the performance improvement plan resulted in the demotion of
Gigous. I find that the demotion of Robert Gigous violated Section 8(a)(5) of
the Act.
3. The information requests
The complaint
alleges that the Respondent failed and refused to provide the
The legal standard concerning just what information must
be produced is whether or not there is “a probability that such data is
relevant and will be of use to the union in fulfilling its statutory duties and
responsibilities as the employees’ exclusive bargaining representative.” Bohemia,
Inc., 272 NLRB 1128 (1984). The Board’s standard, in determining which requests
for information must be honored, is a liberal discovery-type standard.
The contract
contains no provision relating to information requests. Slade admitted that he
handled requests for information unrelated to grievances. Although Slade
initially testified that he would refer any information request “to the
property [sic] level,” he later contradicted that response and contended that
the information requested by the Union herein was not provided “because the
The Respondent’s
claim that the grievance was improperly filed has no bearing upon the
information request and, furthermore, it is incorrect. As Strohecker explained
in his e-mail of January 9, 2007 “[w]hen a company implements a policy that is
a unilateral change in conditions of employment, all employees are aggrieved.”
Strohecker points out that that he was not “directed to anyone else in regards
to the first step,” and notes that the
The Respondent’s
e-mails never addressed the
The Respondent
never responded to the requests for information. Even if it be assumed that the
grievance was not properly filed, a respondent may not refuse to provide requested
relevant information pursuant to a contention “that the grievances are
procedurally defective,” because “the Board, in passing on an information
request, is not concerned with the merits of the grievance.” Southeastern Brush Co., 306 NLRB 884 fn.
1 (1992). “[A]n employer must respond to a union’s requests for relevant
information within a reasonable time, either by complying with it or by stating
its reason for noncompliance within a reasonable period of time. Failure to
make either response in a reasonable time is, by itself, a violation of Section
8(a)(5) and (1) of the Act. Some kind of response or reaction is mandatory. Ellsworth Sheet Metal, 232 NLRB 109
(1977)”
The Respondent, by
failing to respond the requests for information by the Union and by failing to
provide the information requested in its letter of September 8, and as expanded
in its letter of November 14, all of which was relevant to the Union in
carrying out its obligation to represent finishing department unit employees,
violated Section 8(a)(5) of the Act.
Conclusions of Law
1. By unilaterally,
without notice to or bargaining with Graphic Communications
Conference/International Brotherhood of Teamsters, Local 65-B, implementing a
90 Shift Performance Improvement Plan, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the Act.
2. By demoting employee
Robert Gigous on February 26, 2007, pursuant to the unlawfully implemented 90
Shift Performance Improvement Plan, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and (5) and
Section 2(6) and (7) of the Act.
3. By refusing to
bargain collectively with the Union by failing and refusing to provide information
requested by the Union in its letters of September 8, and November 14, that is
relevant and necessary to that Union as the collective-bargaining representative
of employees in the appropriate unit, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Section 8(a)(1) and
(5) and 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.
The Respondent
having unilaterally implemented a 90 Shift Performance Improvement Plan, it
must rescind the Plan and make whole Robert Gigous, who was demoted pursuant to
that Plan, for any loss of earnings and other benefits, plus interest as
computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
The Respondent must
provide the information initially requested by the
The Respondent must
also post an appropriate notice.
On these findings
of fact and conclusions of law and on the entire record, I issue the following
recommended2
ORDER
The Respondent,
Quebecor World Mt. Morris II, LLC,
1. Cease and desist
from
(a) Unilaterally,
without notice to or bargaining with Graphic Communications
Conference/International Brotherhood of Teamsters, Local 65-B, implementing a
90 Shift Performance Improvement Plan.
(b) Demoting
employees pursuant to the unlawfully implemented 90 Shift Performance Improvement
Plan.
(c) Refusing to
bargain collectively with the Union by failing and refusing to provide requested
information that is relevant and necessary to the
All employees employed in the Finishing Department at the
Company’s existing plant at
(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 the
implementation of the 90 Shift Performance Improvement Plan with regard to
employees represented by Graphic Communications Conference/International Brotherhood
of Teamsters, Local 65-B, in the appropriate unit set out above.
(b) Make Robert
Gigous whole for any loss of earnings as a result of his demotion on February
26, 2007, pursuant to the foregoing Plan, in the manner set forth in the remedy
section of the Decision.
(c) Provide the
information requested by the
(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 Subregion, post at its facility in
(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 unilaterally, without notice
to or bargaining with the Graphic Communications Conference/International
Brotherhood of Teamsters, Local 65-B, implement a 90 Shift Performance Improvement
Plan and we will rescind that
Plan.
We will not demote any employee pursuant
to our unlawfully implemented 90 Shift Performance Improvement Plan and we will make Robert Gigous whole for
any loss of earnings as a result of his demotion pursuant to the foregoing
Plan, plus interest.
We will not refuse to bargain
collectively with Graphic Communications Conference/ International Brotherhood
of Teamsters, Local 65-B, by failing and refusing to provide requested information
that is relevant and necessary to that
All employees employed in the Finishing Department at the
Company’s existing plant at
We will not in any like or related
manner interfere with, restrain, or coerce any of you in the exercise of your
rights guaranteed by Section 7 of the Act.
We will provide to the
Quebecor World Mt. Morris II, LLC