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,
Dietrich Industries, Inc. and Local No. 142, International Brotherhood of Teamsters. Cases 13–CA–43598 and 13–CA–43718
September 16, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On August 28, 2007, Administrative Law Judge George Carson II issued the attached decision. The Respondent filed exceptions, a supporting brief, a reply brief, and an answering brief. The General Counsel filed cross-exceptions, a supporting brief, and an answering brief.
The National Labor Relations Board1 has considered the judge’s decision and the record in light of the exceptions,2 cross-exceptions,3 and briefs, and has decided to affirm the judge’s rulings, findings,4 and conclusions and to adopt his recommended Order.5
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, Dietrich
Industries, Inc.,
Dated,
Peter C. Schaumber, Chairman
Wilma
B. Liebman, Member
(seal) National
Labor Relations Board
Lisa Friedheim-Weis and Hyeyoung Bang-Thompson, Esqs., for
the General Counsel.
Ronald J. Andrykovitch and Floyd A. Clutter, Esqs., for
the Respondent.
Mr. Richard J. Knipp, 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 the General Counsel and the Respondent, I make the following[3]
Findings of Fact
i. jurisdiction
The Respondent, Dietrich Industries, Inc., the Company, is
a
The Respondent admits, and I find and conclude, that Local
No. 142, International Brotherhood of Teamsters, the
ii. alleged unfair labor practices
A. Background
The parties have had a collective-bargaining relationship
since 1979. Shortly before the expiration of their prior contract, effective
through February 28, the parties began negotiating a successor agreement. There
were between 60 and 70 employees in the unit.[4]
On February 28, the parties agreed to an extension of the existing contract
through March 4, and the Company presented a proposal to the
The
On May 5, the
B. Facts
The contractual negotiators for the Company were corporate
director of human resources Nancy Albert, who was the spokesperson, regional operations
manager Joseph Labus, and the manager of human resources at Hammond Steve
Navarro. An employee committee and business agents Larry Regan and Les Lis
represented the
At the August 23 bargaining session, two changes of
position occurred. The first related to the tiered system proposal. Knipp came
to the meeting for a short period of time and met with the federal mediator and
Albert. Knipp stated that the Union would accept the tiered system if the
Company would “grandfather” current employees during the term of the agreement
being proposed so that any layoffs of current employees would be conducted by
plant-wide seniority and would increase the Company pension contribution by
four dollars a week to assure that employees with 30 years seniority would qualify
for a full pension. Knipp was aware that the
The second change related to health benefits. The Company
proposal of March 16 had provided, as requested by the
At the August 23 session, the
On August 28, Albert sent an e-mail to Knipp stating that the Company had “started today to put a red line copy of our offer together.” Albert noted that she was out of the office until September 2, and would “have a better sense of where we are next week when I return.”
On or about August 28, Albert sought detailed information
from the Michigan Conference of Teamsters Health and Welfare Fund regarding the
key 3 plan. In the course of her discussions, she learned that the plan
required a 3 year participation agreement. In the course of bargaining sessions
that were held on September 18 and 19, the
By an e-mail dated September 5, Albert advised the federal mediator that the Company was “currently working on the red line [copy] of our proposals,” but noted that she would need to go over the proposal with Regional Operations Manager Labus who was “out this week” and that she would also be out and not return until September 17. No delivery date was stated. Despite the foregoing scheduling difficulties of the management officials, as hereinafter discussed, the Company thereafter committed to provide the red line copy by September 14.
On September 7, Knipp, who had been copied on the September 5 e-mail that Albert had sent to the mediator, wrote to Albert stating that the mediator had informed the Union that it could expect to receive a complete contract proposal “sometime around mid next week,” noting that the Union understood that the proposal “may change in some areas because you are considering our proposal concerning the Michigan Conference of Teamsters Key-3 plan.”
On September 8, the Union sent to the Company, by facsimile
copy and e-mail, a letter stating that the Union was giving “notice that the
striking workers will be returning to work unconditionally, effective
immediately at 3 pm this 8th day of September 2006.” Shortly thereafter a
number of the returning strikers and representatives of the Union appeared at
the gate of the
On September 11, the Company sent the
I am in receipt of your correspondence dated September 8,
2006, by which you communicated the striking employees’ unconditional offer to
return to work effective 3:00 p.m. that date. Please accept this letter as
formal notice that the Company shall not offer reinstatement to the striking
employees until an agreement is reached. Accordingly, the Company is implementing
a lockout effective immediately. The Company will provide its final written
offer to the
The final written offer, which the letter states would be provided by September 14, was not provided until the parties were adjourning on September 18, the first of 2 days of negotiations. Although the parties had been informally communicating regarding the key 3 option of the Michigan Conference of Teamsters Health and Welfare Fund, and although the proposal of March 16 had contained the key 2 option with that Fund, the September 18 proposal offered the Company health benefit plan contained in the expired agreement and which had been proposed in the Company’s initial proposal of February 28, with, of course, the requirement for employee contributions. Article 29, relating to contract duration, left the effective date of the contract blank, whereas the March 16 proposal had provided for retroactivity with the effective date of the contract being March 1, 2006.
Both the Company proposal of September 18, and the September 20 proposal, to which the parties ultimately agreed, were presented with a cover sheet stating that the contract would be effective upon ratification until February 28, 2009, that there would be no retroactivity, that the modifications reflected in the red line copy related to the expired agreement and “Withdrawal of all outstanding NLRB charges and appeals.” In the bargaining session on September 19, Business Agent Larry Regan asked Albert whether agreement to the proposal, the predicate for reinstatement of the striking employees, was contingent upon withdrawal. He recalls that Albert answered, “Larry, you know I cannot answer that.” Albert testified that she replied, “Larry, you know I can’t insist on that but we want this anyway.”
Albert testified that, as of September 11, the March 16 proposal,
which the
At negotiations on September 19, the
On Saturday, September 23, the members of the
On Monday, September 25, at 7:57 a.m., Knipp sent an
e-mail to Albert advising that the contract had been ratified and that Business
Agent Regan had attempted, apparently unsuccessfully, to contract the Company
in
On September 27, after making telephone calls to employees on September 25 and 26, the Company offered reinstatement to 41 striking employees, effective October 2. On that same date, September 27, the Company notified the remaining employees, approximately 22, that they were being laid off effective October 2. It is undisputed that, due to a decrease in production during the course of the strike, positions were not available for all strikers. The complaint does not allege any violation of the Act with regard to the layoff of the strikers for whom positions were unavailable.
Reagan testified that, at the ratification vote, he informed the employees, who had seen the proposal of September 20, with the cover sheet, to disregard the language relating to withdrawal of the NLRB charges.
The
The letters of September 27, to the laid off employees state their entitlements, including unemployment compensation and health care benefits that “will be continued through November 4, 2006.”
Director of Human Resources Albert learned from representatives of the Michigan Conference Fund that employees not actively working when the Michigan Conference Fund became the insurer were ineligible for continuation of benefits because they were not eligible for benefits unless actively working. The transition rules for the Michigan Conference Fund specifically provide that “no eligibility will be established for MCTWF benefits until the Employee returns to active employment.”
By an undated letter, which manager of human resources Navarro testified was sent on November 13, the laid off employees were informed that the September 27 letter was in error regarding the continuation of benefits, that because the laid off employees had “not returned to active employment” they were “not eligible for and were not receiving benefits at the time of . . . layoff . . . there are no benefits to continue pursuant to Article 18, Section 1(3) of the contract.” That contractual provision states that “[c]overage of an employee who is laid off will be discontinued by the Company as of the end of the fourth week after the week in which such layoff occurs.”
C. Analysis and Concluding Findings
1. The lockout
The complaint alleges that the Respondent locked out the striking employees on September 11, at a time when the Respondent had made no complete contract offer and failed and refused to reinstate the striking employees to their former positions of employment upon their unconditional offer to return to work.
Three principles are applicable in addressing the foregoing complaint allegations.
The first principle, established in Laidlaw Corp., 171 NLRB 1366 (1968), is that an employer’s failure to reinstate striking employees to available positions upon their unconditional offer to return to work is inherently destructive of rights under that Act and, standing alone, violates Section 8(a)(3) and (1) of the Act. Due to a decrease in production, positions were not available for all strikers either on September 8 or 27, the date that reinstatement was finally offered, and the complaint herein alleges no violation with regard to the formal layoff of the employees for whom positions were not available. It is, however, undisputed that a significant number of positions were available. Replacement employees had not been hired.
The second principle, discussed in Harter Equipment (Harter I), 280 NLRB 597 (1986), is that an employer is privileged to lock out employees in support of its bargaining position.
The third principle, and the principle critical to the
decision in this case, is that, although an employer may lock out striking
employees in support of its bargaining position and refuse to reinstate them
immediately in response to an unconditional offer to return to work, it must
make a “timely announcement to the strikers that it is locking them out in
support of its bargaining position” and “clearly and fully . . . [inform them]
of the conditions they must meet to be reinstated.” Eads Transfer, 304 NLRB 711, 712 (1991);
In Dayton Newspapers,
the employer argued that the Union had not agreed to various operational
changes, but the Board found that the employer had not given the
[T]he Respondent failed to give the
Thus, although an employer may lock out its employees in
support of its bargaining position, it is privileged to do so only if it gives
notice that it is doing so and makes the union aware of the employer’s
bargaining position so that the union and strikers, as held in Dayton Newspapers, are “clearly and
fully informed of the conditions they must meet to be reinstated. “ This is
necessary because, as held in Ancor
Concepts, the
In this case there was no “moving target.” There was no target
at all. Neither the
The Respondent, citing West Co., 333 NLRB 1314, 1315 (2001), argues that its offer of March 16, was “on the table” at the time of the lockout because it was never specifically withdrawn nor did the parties “reasonably believe that the offer had been withdrawn.” The General Counsel argues that the Respondent’s arguments regarding the purported viability of the March 16 offer are made “in hindsight.” I agree. That offer, although not formally withdrawn, did not represent the Respondent’s current bargaining position in September, and the letter of September 11, did not state that its acceptance would end the lockout.
If the offer of March 16, had been the Respondent’s bargaining position, the letter of September 11, would have so stated. When Albert was asked, “At that time [the day of the lockout] what were the reasons that you . . . were not in a position to immediately conclude a contract?” Albert answered that the Company was “working through the issues on the, the Michigan Conference . . . [which] required a three year participation agreement. And we weren’t willing to do that.” Insofar as the Respondent considered the offer of March 16, to have been open, Albert would have answered that the Respondent was in a position to immediately conclude a contract, and the letter of September 11, would have stated that fact.
The Respondent was not in a position to conclude a contract because the Respondent had decided not to offer a contract that would be retroactive. The March 16 proposal, Article 29, states the effective date of the contract to be March 1, 2006. Albert’s testimony that the Respondent was unwilling to agree to a 3 year participation agreement establishes that, at least by September 11, the Respondent’s bargaining position precluded retroactivity. If the March 16 offer had represented the Respondent’s bargaining position, the 3 year participation agreement to which the Respondent was unwilling to agree would have presented no problem since the contract would have been effective retroactively to March 1, 2006, and would expire on February 28, 2009. The Respondent’s decision not to offer retroactivity explains why the March 16 offer was not mentioned in the letter of September 11. The only offer stated in the September 11 letter was the “final written offer.”
It is well settled that “a new offer . . . will end the
power to accept the original offer . . .” Corbin on Contracts, Revised Edition,
section 2.20 (1993). See also Restatement (Second) of Contracts, section 43
(1981). The Respondent’s September 11 letter informs the
So far as the
Whether the letter of September 11, effectively revoked
the offer of March 16, is immaterial. Although, as the Respondent argues, the
offer was not withdrawn, the absence of any contemporaneous mention of it by
either party in the context of the September 11 lockout establishes that both
parties reasonably believed that it was no longer viable. Consistent with Lincoln Hills Nursing Home, acceptance
by the Union of any prior offer would have been a nullity because the
Even if I were to have found that the March 16 offer was legally
capable of being accepted, that offer did not reflect the Respondent’s
bargaining position as of September 11, and the Respondent did not inform the
Union that acceptance of that offer would end the lockout. The
2. Withdrawal of unfair labor practice charges
The complaint, as amended at the hearing following the
General Counsel’s filing a notice of intent to amend dated June 22, 2007,
alleges that the Respondent demanded that the
There is no evidence that the
“Neither party to a collective-bargaining relationship may
condition agreement on the other side’s withdrawal of a previously filed unfair
labor practice charge.” Gloversville
Embossing Corp., 314 NLRB 1258, 1264 (1994), citing John Wanamaker Philadelphia, 279 NLRB 1034 (1986). Director of Human Resources Nancy
Albert testified that, when questioned by Regan regarding the withdrawal
condition on the cover sheet, she replied, “Larry, you know I can’t insist on
that but we want this anyway.” It is well established with regard to permissive
subjects of bargaining that “each party is free to bargain or not to bargain,
and to agree or not to agree.” NLRB v.
Borg-Wagner Corp.,
In Texaco Inc.,
273 NLRB 1335 (1985), and Texaco Inc.,
291 NLRB 325 (1988), cited by the Respondent, there were signed strike
settlement agreements in which the
Likewise, there is no evidence that the Respondent unlawfully
insisted that the
3. Discontinuation of health insurance
The complaint alleges that the Respondent unlawfully discontinued health insurance benefits to the employees for whom positions were not available and who were formally laid off on October 2.
Although the Respondent initially notified these employees that their benefits would be extended for 4 weeks after their layoff, this did not occur. Upon learning that employees who were not actively working were ineligible for benefits and, insofar as they were not receiving benefits those nonexistent benefits could not be continued, the Respondent advised the employees of its prior miscommunication.
The General Counsel argues that the Respondent “declined
to pay for the laid-off employees’ health insurance . . . because they had
participated in the strike.” I cannot agree. The Respondent and the
Conclusion of Law
By failing to reinstate its striking employees following their unconditional offer to return to work on September 8, 2006, and by locking them out on September 11, 2006, without presenting the Union with a contract offer capable of acceptance or giving the Union clear conditions for reinstatement, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) 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 must make whole all strikers for whom positions were available as of their unconditional offer to return to work on Friday, September 8. Those strikers are the employees whose names appear with the shading emphasis on Respondent’s Exhibit 12 and are named in my recommended Order. Insofar as is it undisputed that the offer to return occurred in midafternoon near the end of the workday and that the next regular workday was Monday, September 11, backpay will be computed from September 11 through October 2, or the actual date of reinstatement or refusal of 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). I am mindful that offers of reinstatement for October 2, were made on or about Wednesday, September 27, and that October 2, the reinstatement date, would, in other circumstances, be a reasonable reporting date in relationship to that September 27 date; however, “a lockout unlawful at its inception retains its initial taint of illegality until it is terminated and the affected employees are made whole.” Movers and Warehousemen’s Assn., 224 NLRB 356, 357 (1976). See also Horsehead Resource Development Co., 321 NLRB 1404, 1415 (1996). In this case, there was an unlawful lockout on September 11, and no “substantial business justification” for refusing to offer reinstatement in response to the unconditional offer to return as of September 8. See La Corte ECM, Inc., 322 NLRB 137 fn. 2, 140 (1996). Thus, the granting of a “grace period” in which to arrange for reinstatement is inappropriate.
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 recommended[6]
ORDER
The Respondent, Dietrich Industries, Inc.,
1. Cease and desist from
(a) Failing to reinstate to available positions its striking employees represented by Local No. 142, International Brotherhood of Teamsters, following their unconditional offer to return to work on September 8, 2006, and by locking them out on September 11, 2006, without presenting the Union with a contract offer capable of acceptance or giving the Union clear conditions for reinstatement.
(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) Make whole the following named employees for any loss of earnings and other benefits suffered as a result of the lockout following their unconditional offer to return to work in the manner set forth in the remedy section of the decision:
|
Fernando Vasquez |
Larry Ellis |
|
|
Rick Matlon |
Richard Slussar |
|
Ariel Diaz |
David Stevenson |
|
Eugene Urbina |
Ray M. Bilka |
|
Pedro Moreno |
William Lambert |
|
Richard Harold Rodgers |
Phil Walma |
|
Mark Shearer |
Will McGaha |
|
Martin Hernandez |
Kenneth Houlihan |
|
Louis Castaneda |
John Saffa |
|
Michael Brown |
Frank Azzolina |
|
Ruben Valdez |
Greg Walker |
|
Larry Wright |
Mark Zelesky |
|
Darin W. Bensinger |
Theodore V. Kolivas |
|
Douglas Goodfellow |
Kirk Stuhlmacher |
|
Terry P. Lush |
Larry E. Stone |
|
Frank L. Lambert |
Richard Brambert |
|
Lloyd Davidson |
John Begley |
|
Jefferey Cavins |
Victor Muniz |
|
Kenneth R. Berkley |
Tom Suchala |
|
Michael Speakes |
Nick Brankowitsch |
|
Scott Hansen |
|
(b) 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.
(c) Within 14 days after service by the Region, post at
its facilities in
(d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
Dated,
APPENDIX
Notice to Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board had 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 fail to reinstate you who are represented by Local No. 142, International Brotherhood of Teamsters, and who engaged in a strike, to available positions following your unconditional offer to return to work on September 8, 2006, by locking you out without presenting the Union with a contract offer capable of acceptance or giving the Union clear conditions for reinstatement.
We will make whole those of you whose names appear below for any loss of earnings and other benefits suffered as a result of the lockout following your unconditional offer to return to work, with interest.
|
Fernando Vasquez |
Larry Ellis |
|
Rick Matlon |
Richard Slussar |
|
Ariel Diaz |
David Stevenson |
|
Eugene Urbina |
Ray M. Bilka |
|
Pedro Moreno |
William Lambert |
|
Richard Harold Rodgers |
Phil Walma |
|
Mark Shearer |
Will McGaha |
|
Martin Hernandez |
Kenneth Houlihan |
|
Louis Castaneda |
John Saffa |
|
Michael Brown |
Frank Azzolina |
|
Ruben Valdez |
Greg Walker |
|
Larry Wright |
Mark Zelesky |
|
Darin W. Bensinger |
Theodore V. Kolivas |
|
Douglas Goodfellow |
Kirk Stuhlmacher |
|
Terry P. Lush |
Larry E. Stone |
|
Frank L. Lambert |
Richard Brambert |
|
Lloyd Davidson |
John Begley |
|
Jefferey Cavins |
Victor Muniz |
|
Kenneth R. Berkley |
Tom Suchala |
|
Michael Speakes |
Nick Brankowitsch |
|
Scott Hansen |
|
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.
Dietrich Industries, Inc.