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,
Airo Die Casting, Inc., A Subsidiary of Leggett
& Platt, Incorporated and John A.
Kornides, and Elizabeth P. Gruss and Factory Workers Laborers’ Local
Union 1357 a/w Laborers’ International Union of North America.1 Cases
6–CA–34937, 6–CA–34853, and 6–CA-34854
April 29, 2009
DECISION AND ORDER
By Chairman Liebman and Member Schaumber
On December 20, 2006, Administrative Law Judge Paul Bogas
issued the attached decision. The Respondent filed exceptions with supporting
argument, and the General Counsel filed cross-exceptions
and a brief in support. The Respondent filed an answering brief to the
General Counsel’s cross-exceptions.
The National Labor
Relations Board2 has considered the decision
and the record in light of the exceptions, cross-exceptions, and briefs and has
decided to affirm the judge’s rulings, findings,3
and conclusions only to the extent consistent with this Decision.
In light of the
parties’ settlement agreement,4 only two
complaint allegations remain before the Board.
The first alleges that the Respondent violated Section 8(a)(3) and (1)
of the Act by failing to immediately reinstate employees John Kornides and
Elizabeth Gruss following a unit-wide economic strike. In the absence of exceptions, we adopt the
judge’s dismissal of that allegation.
The second
remaining allegation asserts that the Respondent violated Section 8(a)(5) and
(1) of the Act by subcontracting bargaining unit work without first notifying
and bargaining with the
i. facts
The Respondent manufactures aluminum die castings at its
facility in
The
On August 29,
2005, employees John Kornides and Elizabeth Gruss attempted to return to work
but were informed that they had been permanently replaced during the
strike. Because their jobs had been
filled, they were placed on a preferential hiring list.
After the
employees had returned to work, the Respondent subcontracted certain bargaining
unit maintenance work.6 The Respondent made the decision to
subcontract this work without providing the
The judge found that the issue of whether the Respondent violated Section 8(a)(5) and (1) of the Act by failing to give the Union notice and an opportunity to bargain over its decision to subcontract maintenance work turned on the subcontracting clause contained in the parties’ expired contract. There are no exceptions to the judge’s finding that the subcontracting clause was applicable.7 The subcontracting clause stated that the Respondent “shall have the right to subcontract normal bargaining unit work only when such subcontracting does not result in a layoff or there are no employees on layoff.” Applying this clause, the judge found that the Respondent’s conduct violated the terms of the contract because Kornides and Gruss were “on layoff” when the Respondent began subcontracting work.
ii. analysis
A.
In contrast to the judge, we find that the Respondent’s
decision to subcontract bargaining unit work at a time when two former economic
strikers were on the recall list did not violate the express terms of the
parties’ agreement which prohibited subcontracting when employees were on
layoff. In turn, we find that the
Respondent was privileged to subcontract without bargaining with the Union
because the parties’ contract contained a clear and unmistakable waiver of the
There is no evidence to support a finding that Kornides and Gruss were on layoff at the time that the Respondent subcontracted the maintenance work. Rather, the evidence clearly establishes that Kornides and Gruss had been permanently replaced, rather than laid off, during the strike. Cf. Bio-Science Laboratories, 209 NLRB 796 (1974) (finding that employer did not violate the Act by refusing to treat economic strikers who had been permanently replaced as if they had been laid off). Accordingly, we find that the judge erred in determining that the Respondent’s use of subcontractors, at a time when two permanently replaced employees were on the recall list, violated the express terms of the parties’ collective-bargaining agreement, which prohibited subcontracting only when employees were on layoff.8
B.
We further find that the Respondent was privileged to
unilaterally subcontract bargaining unit work—a mandatory subject of
bargaining—because the Union clearly and unmistakably waived its statutory
right to bargain over that issue. In
evaluating whether there has been a clear and unmistakable waiver, the Board
considers the precise wording of the relevant contract provisions. Provena
Here, the parties’ agreement expressly permits the
Respondent to subcontract bargaining unit work “only when such subcontracting
does not result in a layoff or [when] there are no employees on layoff.”10
We find that the express language of the parties’ contract should be
construed as a clear and unmistakable waiver of the
Accordingly, we find that the Respondent has not violated
Section 8(a)(5) and (1) of the Act by failing to notify and bargaining with the
ORDER
The complaint is dismissed.
Dated,
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
Gerald McKinney, Esq. for the General Counsel..
Timothy
G. Hewitt, Esq. and David Cofer, Esq. of
George H.
Love, Jr., Esq. of
DECISION
Statement of
the Case
Paul Bogas, Administrative Law
Judge. This case was tried in
The consolidated complaint, as amended (the complaint), alleges that in the aftermath of a strike by its employees, Airo Die Casting, Inc., a Subsidiary of Leggett & Platt, Incorporated (the Respondent or the Company), violated the National Labor Relations Act (the Act) by, inter alia, falsely declaring impasse, making multiple unilateral changes to employees’ terms and conditions of employment, delaying the provision of information requested by the Union, threatening and otherwise coercing former strikers, discriminatorily refusing to reinstate two former strikers for a period of approximately 7 months, and discriminatorily demoting another former striker. The Respondent filed timely answers in which it denied that it had committed the unfair labor practices alleged in the complaint. 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 Findings of Fact and Conclusions of Law.
Findings of Fact
i. jurisdiction
The Respondent, a
corporation with an office and place of business in
ii. alleged
unfair labor practices
A. Background Facts
The Respondent
manufactures aluminum die castings at its facility in
In 1976, on the basis of an examination of union authorization cards, the Respondent recognized the Construction and General Laborers’ Local Union No. 1451, AFL–CIO (Local 1451), which was affiliated with the Laborers’ District Council of Western Pennsylvania (the District Council), as the exclusive representative for a bargaining unit consisting of production and maintenance workers at the Respondent’s Pennsylvania facility.3 The Respondent and Local 1451 entered into their initial bargaining agreement in July 1976, and subsequently executed a number of successor agreements.4 The most recent collective bargaining agreement states that it is effective from January 1, 2002, to January 31, 2005.5 In 2005, between 250 and 300 employees were in the bargaining unit.
By mid-January 2005, a number of bargaining unit members had become dissatisfied with the representation being provided by Local 1451 and with the role of the District Council. On January 15, the Local 1451 bargaining committee informed the Respondent that the employees were forming a new local. The new entity—Local 1357—received a provisional charter from the International Union on January 24, a fact that the Respondent was aware of and confirmed with the International Union. On January 25, the International Union transferred the members of Local 1451 to Local 1357.6 By May 19, 2005, Local 1357 provided the Respondent’s director of human resources with cards signed by 293 of the approximately 300 unit members, authorizing Local 1357 to act as their bargaining representative. Although the Respondent’s answer denies that Local 1357 is the representative of the unit employees,7 the record shows that during negotiations the Respondent did, in fact, agree to recognize Local 1357 as the representative of the unit employees based on the authorization cards. In a July 11 letter, the Respondent’s attorney and chief negotiator stated that “[d]uring the process of bargaining, based upon membership cards provided, the Employer has agreed to replace Local Union No. 1451 with Local Union No. 1357.” (GC Exh. 42, at pp. 2.)8 The Respondent also took other concrete actions by which it implicitly recognized Local 1357 as the representative of unit employees for purposes of collective bargaining. For example, the Respondent’s officials met repeatedly to negotiate with the Local 1357 bargaining committee. The Respondent submitted a contract proposal that identified Local 1357 as the representative of the employees (GC Exh. 32), and processed grievances that it knew were submitted by Local 1357 (GC Exh. 17, 20, 20a.) The Respondent addressed July 15, 2005, correspondence about alleged picket line misconduct not to Local 1451, but to the business manager of “Local 1357.” (GC Exh. 23.) There is no evidence that after the Respondent began bargaining with the Local 1357 committee in May 2005, its agents ever again sought to negotiate with Local 1451. Indeed, despite the efforts of counsel for the Respondent to muddy this issue, even the Respondent’s president testified that his understanding was that Local 1357 had represented the unit employees since early 2005. (Tr. pp. 61–62.) The evidence clearly shows that the Respondent recognized Local 1357 as the bargaining representative of unit employees no later than July 11, 2005, and probably earlier than that.9 See Terracon, Inc., 339 NLRB 221, 223 (2003) (union may become recognized bargaining representative of unit when the union proves majority status and either the employer agrees to recognize the union upon such proof, or the Respondent implicitly recognizes the union by statements or actions that evidence a commitment to negotiate with the union), affd. sub nom. Operating Engineers Local 150 v. NLRB, 361 F.3d 395 (7th Cir. 2004). While Local 1357 was initiating its operations, it had some limited connection to the District Council. The record shows that the District Council supplied Local 1357 with $5000 in start-up funds, and provided an attorney, Dominic Bellisario, to assist Local 1357 in negotiations for a brief period. Bellisario was the same attorney who the District Counsel had provided to assist Local 1451 during the 2004–2005 contract negotiations preceding the creation of Local 1357. On December 31, 2005, Local 1357 and the District Council severed any remaining ties.
B. Negotiations Prior to Creation of Local 1357
The Respondent and Local 1451 began negotiating for a new contract in December 2004. The Respondent’s bargaining team consisted of Teague, who served as chief negotiator, and Lukacs. Krinock attended the initial bargaining session, but only came to one or two other sessions during 2005. The Local 1451 bargaining team consisted of attorney Bellisario, Thad Rager, Robert Hillman, David Simpson, Cindy Upholster, and Dave Weber (a representative of the International Union). Bellisario served as primary spokesperson for Local 1451.
On December 8, 2004, Local 1451 gave the Respondent its initial proposal, and on December 15, the Respondent provided an answer to that proposal. By the end of January 2005, the parties had met 15 times and reached tentative agreements on 21 items. The most important issues dividing the parties at that time concerned the health insurance benefit. Under the last contract, health insurance was provided through a plan that the District Council made available to affiliated locals. The Respondent paid 100 percent of the premiums for participating unit employees. The Respondent stated that it was concerned about the cost of the District Council plan and made a presentation on the possibility of substituting a health insurance plan offered by the Respondent’s parent company—Leggett & Platt, Inc.
Other significant
issues on which the parties had not reached agreement by the contract’s January
31, 2005, expiration date included wages, the defined benefit pension plan, and
management rights. Regarding pension,
the
On January 15, during the second month of negotiations, the Local 1451 committee informed the Respondent that employees were forming a new local—later chartered as Local 1357—and that it would be impossible to reach an agreement before the current contract expired on January 31 because any proposal would have to be considered by the new local.
C. Negotiations Between Respondent and Local 1357
Negotiations for a new contract were suspended for a time while Local 1357 held elections for officers, obtained authorization cards from the unit members, and generally got up and running.10 While Local 1357 was initiating its operations, the Respondent presented what it called the “Company’s last best and final offer made on January 31, 2005” to Local 1451. That offer included the 21 tentative agreements previously reached plus a number of other proposals. The other proposals included a 5-year contract term, with wage increases of 3 percent for each of 3 years and 3.5 percent for the remaining 2 years. Regarding the pension benefit, the Respondent agreed to continue participating in the LIUNA joint labor-management pension fund, but proposed lesser increases in contributions—5 cents per hour during 3 years of the contract’s 5-year term, with no increases during the remaining 2 years. Regarding what had been the most contentious issue—health insurance—the Respondent proposed switching from the District Council’s health and welfare plan, under which the Respondent paid 100 percent of premiums, to the Leggett & Platt plan, under which the employees would contribute weekly premiums of $5 per individual and $12 per covered family.
Bargaining sessions
between the Respondent and Local 1357 began in early May 2005. On May 19, 2005, the union membership voted
to reject the Respondent’s “last best and final offer” of January 31 and to
initiate a strike on June 12, 2005, unless the parties reached an agreement
prior to that time. At a bargaining session
on June 1, Teague made a presentation regarding new contract terms, which he
said did not constitute a formal proposal, but rather a “sub-posal.” He said he would present the sub-posal as a
formal proposal if the union committee agreed to recommend the terms to the
membership. The
On the evening of June 12, the bargaining unit began its strike. During the strike, both sides selected new chief negotiators, but continued to bargain. Attorney Timothy Hewitt took over for Teague as the Respondent’s chief negotiator.11 Teague continued to participate in the negotiations and attended some, but not all, of the subsequent bargaining sessions. In early July, Bellisario ceased to represent Local 1357 and later that month Local 1357 retained George Love to serve as their attorney and chief negotiator.12 Members of Local 1357’s executive committee, including Kenneth Cogan (president) and Simpson (business manager) also participated in the bargaining sessions.13 The parties began to use a Federal mediator to assist in the negotiations.
The first bargaining
session with Hewitt and Love both serving as chief negotiators took place on
August 4. A few days earlier, on or about July 28, the Respondent had provided
the
The Respondent also proposed to delete language that was in the expired contract, and had been in contracts since 1976, which prohibited the Respondent from subcontracting bargaining unit work while there were any unit employees on layoff. In addition, the Respondent sought to add new language to the management rights clause stating that the Respondent had authority to “determine job content, to create or change jobs and assign jobs to particular classifications; to consolidate or combine job duties,” “to schedule the number of straight or overtime hours to be worked,” “to add to or reduce the number of shifts,” and “to reasonably establish, modify, or change work schedules.”14
On August 8, Local
1357 replied to the Respondent’s July 28 proposal. Local 1357 stated that it accepted the tentative
agreements that the Respondent had previously reached with Local 1451 on 21
items. Local 1357 indicated that it
would agree to a contract duration of 5 years, rather than the 3 years
preferred by the
About 10 days later, on August 18 or 19, the Respondent cut its pension proposal further. In the proposal that Hewitt provided to Love at that time, the Respondent proposed not only to eliminate all increases to the $1.62 hourly contribution rate during the duration of the contract, but to reduce its contributions by over 50 percent to 80 cents per hour effective January 1, 2006. This reduction would lessen the pension benefits that employees received for years of service worked under the reduced contribution level, but would not affect the pension benefits they received for years of service prior to implementation of the proposed reduction. Under this proposal, the Respondent did not offer to take any portion of the 82 cents per employee/per hour that it was cutting from the Company’s pension contributions and use it for the benefit of employees. In other words, the Respondent was apparently proposing to retain that money for its own purposes. The Respondent’s proposal also gave management the option of discontinuing participation in the LIUNA joint labor-management pension fund and instead offering employees the chance to participate in a Leggett & Platt pension plan.
Hewitt, in an August 19 letter to Love, stated that the Respondent wanted the option of switching pension plans because the LIUNA joint labor-management fund was “financially risky” and “financially troubled.” Earlier, at a meeting in late June or early July, the Respondent had told the Respondent that the LIUNA plan was underfunded by $700,000. The Respondent did not show that it had any basis for these characterizations of the LIUNA plan’s financial status and, based on the record evidence, the characterizations were inaccurate. The LIUNA fund’s attorney, James Ray, credibly testified that the plan was not underfunded and more than exceeded the funding requirements under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. Section 1001 et seq.15
Although the Respondent was seeking authority to withdraw from the LIUNA fund, Hewitt wrote, in his August 19 letter, that the Company might “decide not to exercise the option of withdrawing from the [LIUNA] pension plan depending upon withdrawal liability”—i.e., depending on the size of the penalty the Respondent would have to pay if it withdrew from the fund.16 Hewitt said that “the current contribution level of $1.62/hour would continue” in the event that the withdrawal liability figure led the Respondent not to withdraw from the LIUNA plan. (GC Exh. 29.) He stated that the LIUNA fund would not make the withdrawal liability figure for a 2005 withdrawal available until mid-September 2005. Despite Hewitt’s representation that the Respondent’s decisions about whether it wanted to withdraw from the LIUNA plan and whether it would seek to reduce pension contributions were based on a withdrawal liability calculation that would not be available for another month, Hewitt’s August 19 letter included the following statement regarding impasse: “If the Union does not vote to ratify the agreement and we continue to be at impasse and the Union abandons its strike, we are still prepared to return employees to work in an orderly fashion with the understanding that we will continue to negotiate in good faith and that we may exercise our right to implement our proposals at impasse.” Hewitt also stated that while he hoped the employees would ratify the agreement, “we reserve our right pursuant to law to implement any or all of the terms of the Employer’s last proposal, if they do not.”
The employees ended their strike on August 29, and the parties met for their first poststrike negotiating session on September 12. Witnesses for both sides agree that the pension issues were the most serious ones dividing the parties during the period after the strike. At the September 12 meeting, the Respondent did not change its position regarding the issues and Hewitt expressed the view that the union membership might approve the Respondent’s proposal if they had better information about it. On September 20, Hewitt provided Love with a complete revised contract proposal. In this version, the Respondent altered its July 28 comprehensive proposal by incorporating the Respondent’s more recent pension proposal of cutting its contributions to 80 cents per hour and permitting the Company the option of withdrawing from the LIUNA joint labor-management pension plan. The September 20 proposal, also reinserted the $12-per week cap on employee health insurance premium contributions for family coverage that it had previously offered, but dropped from its July 28 proposal.
On September 7, 2005, the Respondent received some preliminary information on the withdrawal liability figure that the parties had been awaiting. The information came in the form of a letter from the LIUNA fund administrator, Mark Speakes, who told Hewitt that while the fund could not yet provide a figure for a 2005 withdrawal, it could state that if the Respondent had left the plan in 2004, the withdrawal liability figure would have been $2,131,890. Speakes stated that a figure for a 2005 withdrawal could not be provided until later in the year since it would be based on the January 1, 2005 actuarial valuation, which was not yet available. In a subsequent conversation, Speakes informed Hewitt that the figure for a 2005 withdrawal would not be available until after December 1. The $2,131,890 figure was significantly greater than what the Respondent expected to incur for leaving the plan. On September 20, 2005, Hewitt informed Love that, while the Respondent was still proposing that the company have the option of withdrawing from the LIUNA pension fund, the “substantial withdrawal liability” was a factor that would “certainly provide greater economic incentive for the Employer to remain in the plan.” (GC Exh. 31.)
On September 29, the
The next day, November
16, the
In a letter dated
November 23, 2005, Hewitt expressed extreme disappointment with the
As advised, the withdrawal liability information for current withdrawals should be available after December 1, 2005. Once that information is provided, the Employer will reconsider its proposal. At this time, the Employer has no change to its pension proposal.
* * * *
If we receive any additional information from the Pension Administrator that changes our position, I will let you know if we need a meeting.
In other respects, Hewitt stated that the Respondent was not modifying its proposals.
The parties’ next
negotiating session was held on December 13.
This was approximately the eighth session between the Respondent and
Local 1357. In the days before that meeting,
Hewitt called Love and stated that the Respondent would consider taking a
portion of the 82 cents per hour it wanted to cut from pension contributions
and returning that portion to employees in the form of increased wages. More specifically, Hewitt suggested that the
When the parties met
on December 13, they still did not have the withdrawal liability information
that Hewitt had previously indicated might lead the Respondent to reconsider
its proposals for a reduction in pension contributions and withdrawal from the
LIUNA pension plan. Nevertheless, the
At the December 13
meeting the parties also discussed health care.
The
Despite the movement that the
According to Love, the parties were not deadlocked on the pension issue because they were considering alternatives to address the Respondent’s desire to withdraw from the LIUNA joint labor-management pension fund while permitting the unit employees who were not yet vested to become vested, and were trying to reach an agreement about what would happen to the money that the Respondent proposed to cut from pension contributions. The parties were also exploring other types of retirement benefits, including 401(k) plans.
Soon after the December 13 meeting, the Respondent received the 2005 withdrawal liability calculation from the LIUNA fund administrator, and Hewitt forwarded that information to Love prior to December 20. That information showed that the Respondent’s liability if it chose to withdraw from the LIUNA plan in 2005 would be $2,600,876. This figure was an increase from the $2,131,890 calculation for a 2004 withdrawal.
Hewitt, in a December 20, 2005, letter to Love, discussed a number of subjects, including health insurance, the increased withdrawal liability calculation, impasse, and the Respondent’s plan to implement its proposal to reduce pension contributions. Regarding health insurance, Hewitt recognized that progress had recently been made, stating that “the health insurance proposal did not seem to be an issue and there did not seem to be any objection with respect to the Employer’s insurance proposal.” On the subject of the higher withdrawal liability figure, although Hewitt had previously stated that a large withdrawal liability figure would make it less likely that the Respondent would want to withdraw from the LIUNA fund, Hewitt now took a different tact—stating that the high withdrawal figure supported the Respondent’s refusal to “continue to be at risk for this growing liability” by “continuing to participate in the fund.”19
In the December 20
letter, Hewitt asserted again that “the
Hewitt also warned the
In a December 21
response to Hewitt’s letter, Love stated that the
The parties did not meet again prior to arrival of the January 1, 2006, “deadline” described by the Respondent. The Respondent proceeded to implement its proposal to reduce hourly pension contributions from $1.62 to 80 cents per employee effective January 1, 2006. Hewitt, in a December 20, 2005, letter, informed the LIUNA fund administrator that the Respondent would be cutting its contribution level as of the first hour in calendar year 2006. The Respondent tendered its first actual payment for the period being calculated at the lower rate on February 16, 2006.20 By letter dated January 9, 2006, Hewitt informed Love that the Respondent was, in fact, now calculating pension contributions at the hourly rate of 80 cents, rather than $1.62, per employee. Hewitt also opined that “It is clear that the parties are at impasse,” and warned that the Respondent “must implement the balance of our bargaining proposal in the very near future.” Two days later, in a letter dated January 11, Love responded that the parties “should go back to the bargaining table as soon as possible” and that he would contact the Federal mediator to setup dates.
The Respondent’s
brief, which was signed by Hewitt, states that during a telephone conversation
between Hewitt and Love on December 19, Love “confirmed that impasse existed”
and that the “union was not going to make any further offers.” Respondent’s Brief at 18 and 19. Although Hewitt presents this bombshell in
the Respondent’s brief as fact, not a shred of sworn evidence was cited to
support it. Instead, Hewitt relies
entirely on his own December 20 letter to Love purporting to summarize their
December 19 telephone exchange. (GC Exh.
35.) This is true despite the fact that
Hewitt himself was present throughout the proceedings as one of the Respondent’s
trial attorneys and could have testified under oath about Love’s supposed
admission. At any rate, Love did testify under oath, and denied
Hewitt’s claim that he had confirmed that impasse existed or stated that the
The record also shows
that the looming January 1, 2006, “deadline” to which Hewitt repeatedly
referred and which he used to justify his assertion that the parties were at
impasse was a false deadline. The evidence is clear that the Respondent’s
contributions on or after January 1, 2006, would have no effect whatsoever on
Hewitt’s stated concerni.e., liability for withdrawal from the LIUNA fund in
2006—since the 2006 withdrawal liability figure was fixed based on the
Respondent’s contributions as of the end of 2005. See footnote 16 supra (withdrawal liability
calculation for a given year based on contributions through the end of the prior calendar year). Contributions made in 2006 would not even be
considered in the calculation. Moreover,
Ray testified, credibly and without contradiction, that to the extent a
reduction in the Respondent’s contributions for 2006 might have an effect on
the Respondent’s liability for a withdrawal in 2007 (as opposed to 2006), such
effect would be “infinitesimal.”21 Finally, January 1, 2006, was not a deadline
for reducing the contributions since those contributions could be reduced at
any time during the year and the withdrawal liability for 2007, to whatever
minimal extent it would be effected by such a change, would depend on the total
contributions actually made through the end of 2006, not on the contribution
level used on January 1, 2006, or any other particular date. In other words, the Respondent’s claim that
it would be “locked-in” to the level paid on January 1, 2006, for the rest of
the year was simply false. Indeed, there
was no credible evidence that the Respondent even had a reasonable basis for
any of its representations to the Union committee about the necessity of
reducing pension contributions by January 1.
Although the record shows that Hewitt repeatedly made such representations
to the
Love, Teague, and Lukacs testified regarding their personal views as to whether impasse existed. Love testified that impasse did not exist. (Tr. 460, 515–516.) He recounted that the parties were still discussing whether they could agree to a withdrawal from the LIUNA plan that was premised on allowing unvested employees an opportunity to vest, and to a compromise that would involve returning a portion of the pension contribution reduction as a wage increase. According to Love, the parties simply “ran out of time” before the Respondent’s January 1 “deadline” because they had been waiting for the withdrawal liability calculation which did not become available until “very late in the game”—about 2 weeks before January 1 and at the start of the of the holiday season. (Tr. 560.)23
Regarding the
testimony of the Respondent’s witnesses about whether they believed that
impasse existed, I begin by noting that the Respondent failed to present the
testimony of Hewitt, even though he was the chief negotiator during the months
leading up the declaration of impasse, and the individual who made the
declaration of impasse. Hewitt was the
witness in the best position to testify on behalf of the Respondent about
circumstances surrounding the declaration of impasse, and his failure to
testify and subject himself to cross-examination is cause for some
suspicion. Instead, the Respondent
relied primarily on the testimony of Teague, who testified that the parties
were at impasse on December 31, 2005. (Tr. 872–873.) I give his testimony little weight for a
number of reasons. First, Teague did not
even attend the December 13 session.
That was the key session for purposes of determining whether the parties
were at impasse because it was the last one before the January 1
implementation, and the one at which Hewitt declared impasse. In addition, at that session the Union made
an informal proposal along the lines of one that Hewitt had broached with Love
a few days earlier—i.e., that the
Lukacs testified that the parties were “pretty much at impasse with the pension” at the December 13 meeting. (Tr. 788.) I do not consider her testimony on this point to be entitled to much weight. First of all, I note the lack of certainty in her statement—“pretty much” at impasse is not the same thing as at impasse, even in layperson’s terms. Secondly, Lukacs admitted that she generally was not included in the prenegotiation meetings that the Respondent’s
bargaining team had
before meeting with the Union bargaining committee. Therefore, it appears unlikely that she was
fully informed about the strategies, authorities, and analyses of the
Respondent’s chief negotiators. Third,
Lukacs stated that, as far as she knew, both sides made the same pension
proposals on December 13 that they had been making for some time. That testimony indicates that she was not
aware that Hewitt had recently made an overture to the
D. The Strike
As discussed above, on May 19, 2005, the union membership voted to go on strike effective June 12, 2006. The understanding was that the strike would be averted if the parties reached a contract during the intervening weeks, and this understanding was communicated to the Respondent. However, no agreement was reached, and the union membership began a strike at approximately 11 pm on June 12. At the outset, all unit employees participated. The Respondent continued to operate the facility during the strike by using management personnel, personnel from other Leggett & Platt facilities, and temporary replacement workers. In addition, over the course of the strike a number of unit employees decided to resign their union memberships and return to work. At trial, witnesses for both sides referred to these individuals as “crossover employees” or “crossovers.” In order to complete work during the strike, the Respondent moved workers between jobs and shifts. The Respondent operated the plant for two shifts of 12 hours each, rather than for 3 shifts of 8 hours each, as was the case before the strike.
At some point during
the strike, the Respondent also hired two replacement workers on a permanent
basis. The Respondent informed the
During the strike, the Respondent informed the bargaining unit employees that they could return to work under the terms of the most recent contract. This offer was reiterated by Krinock in a July 19 letter to employees, in which he stated that, “as previously advised, the Company has continuing work available to you under the terms of the expired Collective Bargaining Agreement.” On August 18, 2005, after the employees had been on strike for approximately 9 weeks, Love sent Hewitt a facsimile correspondence, in which he stated: “The executive board of the union voted unanimously to return to work . . . . This is of course under the terms of the expired contract.” The next day, Love sent Hewitt a second facsimile correspondence in which he stated:
[W]e are willing to return to work under the existing terms and conditions of the expired contract, with or without an extension agreement and end the strike immediately. Please advise me as soon as possible if the company position has now changed, I understood that a return to work was an open option.
That same day, Hewitt responded in a letter stating that: “Continuing work is available under the conditions which existed prior to the strike with those terms and conditions being available for a reasonable period of time pending the outcome of bargaining.”
E. Unit Employees Return from Strike
On August 29, the bargaining unit returned to work, ending the strike. All the temporary workers who the Respondent had retained during the strike were relieved of their duties. When the former strikers returned to work, Krinock gathered the employees, supervisors, and managers together for a meeting during each shift. The testimony regarding Krinock’s statements indicates that there was little variation in what he said during these meetings. First Krinock welcomed the employees back. Then he stated that he recognized that everybody “hurt a lot” during the strike, but that it was important to “move on” because the Respondent needed to get back to work. He said he wanted everybody to respect one another and that management was going to show such respect. He stated that if there was anyone who could not work under those conditions, or did not want to be there, the Respondent would grant that individual a permanent layoff and not contest his or her claim for unemployment insurance. Of the approximately 300 unit employees, 25 or so never returned after the strike. Another 14 resigned over the course of the 2 weeks following Krinock’s speeches. At the time of trial, the total number of unit employees who either did not return from the strike, or subsequently resigned, was about 45.
F. Kornides and Gruss Denied Reinstatement
As stated above,
Kornides and Gruss were the bargaining unit employees with the least seniority,
and both were classified as general finishers.
During the strike, the Respondent hired two employees as permanent replacements
for striking employees. The Respondent
informed the
When the strike ended,
Kornides and Gruss appeared for work on August 29 along with the other former
strikers. Upon reporting, each was required
to meet with Lukacs. Lukacs met with
them separately, although Hillman, the vice president of the
G. Wareham and Grazier
Jeffrey Wareham is
employed by the Respondent as a quality control manager. One of the employees
When Grazier returned
from the strike he attended the “welcome back” presentation by Krinock. Shortly thereafter,
On an occasion in late
October or early November 2005, Grazier, by his own account, “got a little loud”
during a conversation with a coworker about the negotiations for a new labor
contract. This occurred near
On the day of this
exchange,
H. Edward Byers’ Duties
Edward Byers is a
working foreman in the shipping department.
He is paid on an hourly basis, is a bargaining unit employee, and
participated in the strike. At the time
of trial he had been employed by the Respondent for over 12 years, the last 8
or 9 of those years in the shipping department.
Prior to the strike he had a wide range of duties, which included: ensuring
product flow out of the facility; overseeing the flow of raw materials in and
out of the facility; monitoring the work of shippers, receivers, and drivers;
figuring out how best to use carriers and carrier routes; negotiating contracts
with carriers within corporate guidelines; working with other departments to
develop packaging for new products; determining how to utilize floor space
within the shipping and receiving department; and inspecting the outside
buildings and grounds. A number of these
duties were not set forth in Byers’ written job description, however, Byers had
acquired the additional duties over the course of time and had been performing
them for a number of years. The record
does not reveal who, if anyone, was performing these duties before they became
Byers’ responsibility. Hillman testified
that the
When Byers returned to work on August 29, following the strike, Vincent Battaglia, the Respondent’s production manager, told him that changes had been made by Nancy Hauser, the Respondent’s controller.26 Battaglia stated, in general terms, that Byers’ duties had been changed and that his work would now be confined to shipping and receiving. Byers would no longer be located in his office work station, or have use of the computer and the cell phone, and would no longer be working overtime. About a week later, N. Hauser met with Byers about the change in duties. At that meeting, Byers was told that he would no longer be ensuring the flow of raw materials in and out of the facility, scheduling carriers, negotiating contracts or rates with carriers, developing packaging, determining how to utilize floor space in the department, or inspecting the buildings and grounds. These duties were reassigned to nonunit employees. Byers complained about the changes, and Battaglia told him that they were “based upon the Company needing a company person or personnel to in effect have a paper trail which was based upon 9/11 and Sarbanes-Oxley or whatever the bill was.” Since the changes were made, Byers has not had the opportunity to earn overtime pay, but his regular hourly wage rate has not been reduced.
The
I. Cooper and Rellick
Patrick Cooper is employed by the Respondent as a shift facilitator, and is a supervisor and agent of the Respondent for purposes of the Act. One of the employees who Cooper supervised at the time the strike ended was Christopher Rellick. Rellick was a casting employee who had been employed by the Respondent for about 3 years, and participated in the strike.
Soon after the employees returned from the strike, two of Rellick’s coworkers and two foremen reported to Cooper that Rellick was refusing to perform certain aspects of his position27 and was complaining that he hated his job and did not think that the employees should have returned to work. Rellick testified that he had, in fact, told one of these co-workers that he was not happy to be back from the strike “because nothing had been settled” and he “did not know what was going to happen in the future.”
At work the next evening, Cooper asked Rellick whether there was “a problem with anything that was going on at work.” Rellick said that he did not have “a problem with anything.” Cooper reminded Rellick about the “welcome back” speech that Krinock had given, and said that Rellick “should leave” if he was not happy working there. Rellick replied that he was there “to work.” Cooper stated, “[I]f I have to take you upstairs to my office, [you will] be fired and . . . w[ill] not be able to collect unemployment.” Rellick asked if he was being accused of something, and Cooper responded, “I have to do what I have to do.”28
When Rellick completed his shift, he discussed Cooper’s remarks with Cogan. After this discussion, Rellick and Cogan met with Lukacs on either September 1 or 2. Rellick told Lukacs that he had decided to accept Krinock’s offer of the layoff. Lukacs asked “Why?” and Rellick responded, “Let’s just say that things just didn’t work out and I’m going to accept that layoff.”
Lukacs said that “I’m
sorry you feel that way about it.” Lukacs
asked him what was wrong, but Rellick said “Let’s just leave it go.” Cogan later informed Lukacs about what
Rellick had told him regarding the conversation with Cooper, but the
J. Lukacs’ Conversation with Hauser
Jan Hauser has worked for the Respondent for over 7 years as a general finisher. In early October 2005, she went to Lukacs’ office, to ask how many vacation days she had left that year. While the two were alone in Lukacs’ office, Lukacs asked J. Hauser whether she was paying her union dues. J. Hauser responded “yes.” Then Lukacs said, “Well, you don’t have to, because we have no contract.”29
The Respondent’s counsel elicited testimony from Lukacs that, approximately 3 months after the strike, two employees expressed concern to her that they would lose their jobs if they did not pay their union dues, and that she had told those employees that she did not believe that this was true. However, neither Lukacs, nor anyone else, claimed that J. Hauser had expressed concerns that she would lose her job for not paying union dues. Nor did the evidence show that such concerns had ever been expressed to Lukacs by any employees prior to the October meeting between J. Hauser and Lukacs.
K. Shift and Job Assignments
Under the most recent
bargaining agreement, the Respondent must use the bid process when assigning an
employee to a new shift on a permanent basis.30 On the other hand, the Respondent has long
had authority to make temporary shift
reassignments without using the bid process as long as the employee consents to
the temporary reassignment. In the event
there are no volunteers, the Respondent may reassign the least senior employee
on a temporary basis. The Respondent
does not have to obtain the
As discussed above, about 25 unit employees did not return at the end of the strike, and another 14 or so resigned during the subsequent weeks. The vacancies caused by these resignations were not spread evenly over job categories and shifts. In order to compensate for the staffing imbalances that resulted, and ensure the completion of priority work, the
Respondent made temporary shift assignments and temporary job assignments more frequently during the period immediately after the strike than it had done before the strike. However, the record does not show that this change in frequency persisted.
The Union president, Cogan, testified that the “main thing” was that since the strike the Respondent had been using temporary assignments rather than posting the jobs for bid by employees. However, Simpson, another union official who was called by the General Counsel, testified that the frequency of temporary assignments was generally no greater than before the strike. (Tr. 241.) I find that the record fails to establish the existence of a prior, established, practice or policy that dictated when the Respondent would meet a staffing need through the use of a temporary assignment, and when the employer would meet such a need by posting a permanent job or shift assignment. To the extent that there was an increase in the use of temporary assignments for a period immediately after the strike, the evidence did not demonstrate that this increase resulted from any change in standards, rather than from the application of prestrike standards for nonbid transfers to the altered circumstances created by the resignations of a large number of bargaining unit employees.
The General Counsel presented evidence that in a September 8, 2005 memorandum to various managers and supervisors, Krinock listed the job titles and shift assignments of 28 unit employees who had left the company, and stated: “We will ultimately be bidding the jobs that were left open by these departures and right sizing all departments and shifts. In the meantime coordinate the remaining personnel to assure that our top priority jobs are being shipped and our customer needs are being met.” The record suggests that not all of those 28 positions were ultimately filled through the bid process. Indeed, in late October or early November 2005, the Respondent posted a bid sheet listing 15 to 20 vacancies, but ultimately chose to fill only 3 of those vacancies based on bids. The uncontradicted testimony was that many employees had signed up to be considered for those vacancies, and that the bid sheets were filled, or nearly filled, at the time the Respondent took down the posting. The Respondent’s witnesses did not provide any direct explanation for the Company’s decision not to fill the other 12 to 17 positions posted for bid. This episode is, in my view, cause for suspicion that something was in flux regarding how such determinations were made post-strike. However, cause for suspicion is not the same as evidence demonstrating either the existence of an established practice or a significant change from that practice. Moreover, the record suggests that other factors would have influenced the Respondent’s decisions about whether to make permanent assignments after the strike, even if the general parameters used to make such decisions were unchanged. Krinock credibly testified that the Respondent’s staffing needs were decreasing around the time of the strike due to the loss of several major customers. He also credibly testified that, during the period when managers were filling-in for the striking employees, those managers had identified inefficiencies in the manufacturing process and that by correcting those inefficiencies had been able to increase the amount of work that each employee could produce.
The General Counsel also presented evidence regarding three individual employees who were reassigned. One of the employees, Tom McIntyre, had been working as a layout technician, but was reassigned to a job as a floor inspector when the employee who held the position did not return from the strike. This reassignment was made without use of the bid process and yet McIntyre continued to work in the floor inspector assignment at the time of trial, almost a year after the reassignment. Another employee, Rob Buchanan, was transferred from the midnight shift to the afternoon shift without use of the bid process. Buchanan remained on the afternoon shift for 5 or 6 months before being returned to the midnight shift. The evidence also indicates that Don Siko, a crossover employee, was assigned to the daylight shift during the strike and remained in that position after the strike for a little over 3 months until December 2, 2005, when he resigned. Although these are rather extended reassignments, the evidence did not show that their durations exceeded any pre-strike limits on how long a “temporary” reassignment could last.
The General Counsel
argues that the Respondent changed its practices by reassigning employees to
new shifts without their consent.
However, the General Counsel presented no real evidence to support this
assertion. Instead, the General Counsel
argues that the fact that the Respondent did not call any employees to testify
that they transferred voluntarily “strongly suggest[s] that most of these
temporary transfer of shifts [were] not voluntary.” (GC Br. at 14.) However, the General Counsel had the
opportunity to call employees as witnesses, and failed to elicit testimony from
any who said they were transferred involuntarily.
This despite the fact that it is the
General Counsel’s burden to show that there was a change to an established
practice. Moreover, Krinock testified
that no one was involuntarily reassigned to a different shift. (Tr. 808.)
L. Assignment of Unit Work to Process Technicians
Process technicians, also referred to as process engineers, were a group of nonunit employees at the Respondent’s facility. Prior to the strike, the Respondent and Local 1451 had a practice of permitting process technicians to perform unit work when unit employees were on break or vacation, or were sick or injured. The record indicates that, after the strike, the frequency with which the Respondent used process technicians to perform bargaining unit work temporarily increased from once every couple of weeks, to daily. This change continued for a period of several months after the strike. Hillman, vice president of Local 1357, testified that, after the strike, he saw process technicians performing some specific unit tasks that he had not observed them doing prior to the strike. However, Simpson, another union official, testified that the difference in how the process technicians were being used after the strike was a matter of frequency and of the fact that, in the past, there had not been unit members awaiting recall when the process technicians were performing unit work. The record evidence indicates that the circumstances under which process technicians were called upon to perform unit work—e.g., when unit employees were on break, on vacation, sick, or injured—did not change.
On September 9, 2005,
the
M. Subcontracting
The most recent
contract between the parties states that “The Company shall have the right to
subcontract normal bargaining unit work only when such subcontracting does not
result in a layoff or there are no employees on layoff.” The same language appears in every prior labor
agreement in the record, including the initial contract reached in 1978. In the negotiations for a new contract, the
Respondent was seeking to amend this provision to delete the clause that
precluded subcontracting when there were employees on layoff, but the
The record shows that, following the strike, the Respondent subcontracted a number of different types of work, including central melt work, the rebuilding of equipment (machine 7), relining one furnace, and patching another furnace. This was all work that bargaining unit employees were capable of performing and, at least in the case of the central melt work and machine rebuilding, had been responsible for performing in the past.33 Kornides and Gruss, two unit employees, were on layoff when this work was subcontracted. The Respondent did not deny the allegation that it took this action without giving the Union notice or an opportunity to bargain.34
In its brief, the Respondent claims that the bargaining agreement states that the prohibition on subcontracting while employees are on layoff only applies when the laid-off employees are “qualified to perform the contracted work.” Respondent’s Brief at 28. However, this is false. The agreement in no way limits the prohibition on subcontracting to situations in which the laid off employees are capable of performing the specific contracted work. The Respondent does not even cite to any testimony indicating that its misstatement of the rule reflects the parties understanding of the contract’s contrary language. The rule stated by the Respondent would not be an unreasonable one, but it was not the rule the parties agreed to.
N. Overlap Meetings
For a period of at least 4 years prior to the strike, the Respondent had an established practice of permitting quality inspectors the option of working 15 minutes of overtime at the end of their shifts in order to communicate information to personnel on the incoming shifts.35 The quality inspectors were paid for the extra 15 minutes when they chose to stay for one of these “overlap meetings.” If their hours totaled over 40 for the week, the additional 15 minute periods were compensated at the higher, overtime, rate. In the case of Grazier, the extra pay attributable to attendance at these overlap meetings amounted to approximately $1000 per year, although it appears that during the 6 months leading up to the strike his participation had tapered off.
Upon the strike
ending,
O. Requests for Seniority Lists
Prior to October 2005,
Hillman had asked Lukacs for seniority lists on approximately 10 to 15 occasions
and in almost all cases Lukacs had supplied the lists the same day or the next
day. Sometimes Lukacs simply printed the
seniority list on the spot. In late
October 2005, Hillman again asked Lukacs for a seniority list. On this occasion Lukacs stated, without
further explanation, that she could not get the list for Hillman. About a week later, Hillman and/or Cogan
requested the seniority list again, but still it was not supplied. Hillman and Cogan told Love that Lukacs had
not supplied the requested seniority information. Love orally requested the seniority list from
Hewitt at the December 13 bargaining session, but the list was not provided.36 By
letter dated January 11, 2006, Love requested that the Respondent provide the
P. Complaint Allegations
The complaint alleges that the Respondent violated Section 8(a)(5) and (1) by: falsely declaring impasse orally on or about December 13, 2005, and by letter on December 20, 2005, over the single issue of the Respondent’s pension plan proposal; announcing its intention to implement a pension plan proposal as of December 31, 2005, in the absence of impasse; and, unilaterally implementing the Respondent’s pension plan proposal at a time—about December 31, 2005—when the Respondent had not bargained to a good-faith impasse. The complaint alleges that the Respondent also violated section 8(a)(5) and (1) by failing to give the Union notice and an opportunity to bargain over the following changes and their effects: the temporary transfers of employees among shifts; the temporary transfers of employees among jobs; the routine assignment of bargaining unit work to nonbargaining unit process technicians; the subcontracting of bargaining unit work; the elimination of scheduled daily overtime for quality control inspectors; and the permanent reassignment of bargaining unit work from the shipping department working foreman to nonbargaining unit employees. The complaint also alleges that the Respondent violated Section 8(a)(5) and (1) by waiting until January 19, 2006,37 before supplying updated seniority rosters that the Union first requested in or about late October 2005. The complaint alleges that through its overall conduct, the Respondent failed and refused to bargain in good faith in violation of Section 8(a)(5) and (1).
In addition, the
complaint alleges that the Respondent violated section 8(a)(1): on or about
August 29, 2005, when Wareham threatened employees with demotion if they could
not get along with crossover employees; on or about September 2, 2005, when
Cooper threatened employees with termination and the denial of unemployment
compensation if they did not elect to take a voluntary layoff; and in or about
October 2005, when Lukacs interrogated employees about their union support and
solicited employees to withdraw their economic support from the Union. Finally, the complaint alleges that the Respondent
violated Section 8(a)(3) and (1) by discriminating against employees, and
thereby discouraging membership in a labor organization, by: failing to
reinstate Kornides and Gruss from August 29, 2005, until mid-April 2006; and
demoting Grazier from his position as group leader in October or November 2005.
iii. analysis
and discussion
A. Unilateral Implementation of Reduction in Pension Contributions and Respondent’s Claim of Impasse
The General Counsel alleges that the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing its pension proposal on January 1, 2006, at a time when good-faith impasse had not been reached regarding either the pension plan proposal or overall negotiations. In addition, the General Counsel alleges that the Respondent violated Section 8(a)(5) and (1) when, prior to such implementation, it falsely declared impasse based on the single issue of pension benefits and announced that it would implement its pension proposal. For the reasons discussed below, I conclude that the Respondent committed these violations.
The Board has held
that when, as here, the “parties are engaged in negotiations for a
collective-bargaining agreement,” the employer’s obligation to refrain from
unilateral changes regarding mandatory subjects “‘extends beyond the mere duty
to provide notice and an opportunity to bargain about a particular subject
matter; rather it encompasses a duty to refrain from implementation at all,
absent overall impasse on bargaining for the agreement as a whole.’” Register-Guard, 339 NLRB 353, 354
(2003), quoting RBE Electronics of S.D.,
Inc., 320 NLRB 80, 81 (1995); Bottom
Line Enterprises, 302 NLRB 373, 374 (1991), enfd. sub nom. Master Window Cleaning v. NLRB, 15 F.3d
1087 (9th Cir. 1994) (Table). The
employer’s obligation to refrain from such changes survives the expiration of
the contract, and failure to meet that obligation is a violation of Section
8(a)(5) and (1) of the Act.
In this case, there is no dispute that the Respondent made a unilateral change to employees’ pension benefits and that such benefits are a mandatory subject of bargaining.38 The Respondent contends that it was within its rights in doing this because the parties had reached a good faith impasse in negotiations. As the party asserting impasse, the Respondent has the burden of establishing that impasse existed. L.W.D., Inc., 342 NLRB 965 (2004); CalMat Co., 331 NLRB 1084, 1097–1098 (2000), Outboard Marine Corp., 307 NLRB 1333, 1363 (1992), enfd. 9 F.3d 113 (7th Cir. 1993) (Table). The Board defines bargaining impasse as the “situation where ‘good-faith negotiations have exhausted the prospects of concluding an agreement.’” Royal Motor Sales, 329 NLRB 760, 761 (1999), enfd. sub nom. Anderson Enterprises v. NLRB, 2 Fed. Appx. 1 (D.C. Cir. 2001), quoting Taft Broadcasting, 163 NLRB 475, 478 (1967), enfd. sub nom. Television Artists, AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968). It is “the point in time of negotiations when the parties are warranted in assuming that further bargaining would be futile . . . . ‘Both parties must believe that they are at the end of their rope.’” AMF Bowling Co., 314 NLRB 969, 978 (1994), enf. denied, 63 F.3d 1293 (4th Cir. 1995), quoting PRC Recording Co., 280 NLRB 615, 635 (1986), enfd. 836 F.2d 289 (7th Cir. 1987); Patrick & Co., 248 NLRB 390, 393 (1980), enfd. 644 F.2d 889 (9th Cir. 1981) (Table). The question of whether a valid impasse exists is a “matter of judgment” and among the relevant considerations are “[t]he bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, [and] the contemporaneous understanding of the parties as to the state of negotiations.” Taft Broadcasting Co., 163 NLRB at 478.
In the instant case,
the record shows that on December 13, during the same meeting at which the
Respondent declared impasse, the
The evidence also
indicates that, on December 13, the Respondent was not at the end of its own
negotiating rope regarding the pension issue.
As stated above, Hewitt had recently made an overture to Love regarding
the possibility of reaching a compromise based on the Company taking a portion
of the 82 cents per employee/per hour by which it was proposing to reduce its
pension contribution rate, and returning that portion to employees in some
other form. Not only that, but the Respondent
had repeatedly told the
The record also shows
that the parties did not reach impasse regarding the pension issues during the
period between December 13 (when the Respondent prematurely declared impasse)
and January 1, 2006 (when the Respondent unilaterally implemented the pension contribution reduction). During that interval, the Respondent finally
obtained the withdrawal liability calculation for 2005, and the
Even assuming for
purposes of argument that the parties were at impasse regarding the issue of
pension benefits, such a single-issue impasse would not legitimize the Respondent’s
actions since the Respondent was required to await overall impasse in the
negotiations before unilaterally reducing the pension contribution levels
provided for under the expired contract.
See Register-Guard, supra; Bottom Line Enterprises, supra. The record in this case clearly shows that
the parties had not reached an overall impasse.
Going into the December 13 meeting, the parties had already reached
tentative agreement on 21 issues. On
December 13, the
The Respondent’s
December 20, pre-implementation, letter makes clear that the Company was
declaring impasse only on the “pension issue.”
Nevertheless the Respondent now argues that the parties were at overall
impasse under the Board’s decision in CalMat
Co., because “‘a complete breakdown in the entire negotiations’” had
resulted from the “‘single critical issue’” of pension benefits. (R. Br. at 38; CalMat Co., 331 NLRB at 1097, quoting Sacramento Union, 291 NLRB 552, 554 (1988), enfd. mem. sub nom. Sierra Publishing Co. v. NLRB, 888 F.2d
1394 (9th Cir. 1989). It is true that
pension benefits were the most critical subject dividing the parties in
December 2005. However, the record does
not support the Respondent’s claim that bargaining on that issue had caused a
breakdown in overall negotiations. To
the contrary, the record shows that the parties were making progress on the
other major issues of health insurance, wages, and contract duration. The
The
In reaching the
conclusion that the parties were not at impasse, I considered the fact that by
time the Respondent declared impasse approximately a year had passed since the
first negotiating session for a new contract.
However, it would not be fair to say that the parties had been
negotiating for a year at the time the Respondent made the impasse
declaration. After negotiations began,
the bargaining unit employees organized a new local union to represent them in
contract negotiations, elected officers, and retained a new attorney (with no
prior labor law experience) to serve as lead negotiator. These actions interrupted negotiations for a
period of many months, and probably slowed progress for a period thereafter. Negotiations were also complicated by the
fact that the Respondent introduced harsher, in some instances concessionary,
proposals relatively late in the negotiations.
In its January 31, 2005, proposal the Respondent had been willing to
increase pension contributions, although the increases were less than what the
employees had been seeking.
Approximately 8 months later, the Respondent proposed not only to
eliminate all pension contribution increases, but to slash contributions by
over 50 percent from the current level.
Similarly, in its January 31 proposal the Respondent had offered wage
increases of 3 percent during 3 years, and 3.5 percent during the remaining 2
years, of a 5-year contract. On December
13, the
The evidence shows that the Respondent declared impasse when it did because its self-imposed “deadline” for cutting contributions to the pension fund—January 1—was approaching, not on the basis of the actual prospects for reaching agreement. This was made explicit in the contemporaneous pronouncements by Hewitt. At the December 13 negotiating session, Hewitt stated that he had “no choice” but to implement the pension contribution reduction because of the “looming January 1 deadline.” He stressed the Respondent’s determination to act by that date again in his December 20 letter to Love. An employer cannot establish impasse when the evidence shows that its declaration was based on a desire to implement a change by a particular date, rather than on the actual prospects for reaching agreement. See CBC Industries, 311 NLRB 123, 127 (1993) (employer’s declaration of impasse not valid when motivated by employer’s desire to implement cuts immediately upon expiration of the contract), Dust-Tex Service, 214 NLRB 398, 405 (1974) (same), enfd. 521 F.2d 404 (8th Cir. 1975) (Table). In this case, the Respondent has not shown that the parties had exhausted the actual prospects for reaching an agreement either at the time of the December 13 impasse declaration or at the time of the unilateral implementation of a pension contribution reduction on January 1.
For the reason discussed above, I conclude that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally reducing its contributions to the unit employees’ pension fund on January 1, 2006, at a time when the Respondent had not bargained to a good-faith impasse.
In addition, I conclude that the Respondent violated Section 8(a)(5) and (1) when, on December 13 and 20, 2005, it falsely declared impasse and announced its intention to unilaterally implement a pension plan proposal.
B. Other Alleged Unilateral Changes
The complaint alleges that the Respondent violated its bargaining obligations under Section 8(a)(5) and (1) of the Act by failing to give the Union notice and an opportunity to bargain before making changes regarding the temporary transfer of employees among shifts, the temporary transfer of employees among jobs, the assignment of unit work to process technicians, the subcontracting of bargaining unit work including routine maintenance, and the scheduled daily overtime for quality control inspectors. The complaint also alleges that the Respondent violated Section 8(a)(5) and (1) by failing to give the Union notice and an opportunity to bargain before reassigning unit work from unit employee Byers to nonunit employees.
An employer violates
Section 8(a)(5) and (1) of the Act when it unilaterally changes the wages,
hours, or other terms and conditions of employment of bargaining unit employees
without first providing the collective-bargaining representative with notice
and a meaningful opportunity to bargain. NLRB v. Katz, 369 U.S. 736
(1962); Ivy Steel & Wire, Inc.,
346 NLRB 404, 419–420 (2006); Mercy Hospital of Buffalo, 311 NLRB 869,
873–874 (1993); Associated Services for the Blind, 299 NLRB 1150,
1164–1165 (1990). This is a requirement
even if at the time of the change the collective-bargaining agreement between
management and the union has expired and a new agreement has not been
completed. Litton Financial Printing
Division v. NLRB, 501
1. Transfers of shifts and jobs
The General Counsel
alleges that, following the strike, the Respondent unlawfully changed its
practices regarding the temporary reassignment of employees between shifts and
between jobs. Based on the evidence
discussed above regarding such reassignments, I find that the General Counsel
has failed to show that the Respondent changed those practices. Regarding shift assignments, the record shows
that, both before and after the strike, the
Respondent would sometimes meet staffing needs by temporarily
reassigning employees between shifts, as long as the employee consented to the
change. Notice to the
For the same reason, the General Counsel has also failed to show that the Respondent changed its practice regarding the temporary reassignment of unit employees between jobs. The evidence showed that such temporary reassignments were used by the Respondent both before and after the strike. Temporary job reassignments occurred more frequently during the period immediately following the strike. However, the evidence does not show that this increased frequency resulted from a change in established practice, rather that from the application of pre-strike standards to the altered staffing circumstances the Respondent faced for a period of time following the strike.
The record does not show that the Respondent made changes relating to the temporary reassignment of unit employees between shifts and between jobs. Therefore, the allegations that the Respondent violated Section 8(a)(5) and (1) by making such changes should be dismissed.
2. Use of
process technicians
The General Counsel
alleges that the Respondent violated Section 8(a)(5) and (1) by assigning an
increased amount of unit work to a group of nonunit employees known as process
technicians, without prior notice to the
The record fails to establish that the Respondent changed its practice regarding the use of process technicians to perform unit work. Therefore, the allegation that the Respondent violated Section 8(a)(5) and (1) by making such a change without bargaining should be dismissed.
3.
Subcontracting
The expired contract
between the parties, as well as contracts that preceded it, explicitly stated
that the Respondent could subcontract bargaining unit work “only when . . . there
are no employees on layoff.” There was
no evidence that this provision had been interpreted to mean something other
than what it says, or that the subcontracting of unit work had ever been
permitted before the strike during a period when unit employees were on
layoff. Despite this contractual
prohibition, after the strike the Respondent began to subcontract work that bargaining
unit employees had previously been responsible for performing, even though
Kornides and Gruss were still on layoff.
By taking such action without the
In response to a number of the allegations of unlawful changes, the Respondent asserts that its actions were permitted by the management rights provision contained in the expired contract. This argument fails because the Board has held that, unlike other provisions in a contract, the operation of a management rights provision does not survive the expiration of that contract. As the Board recently reaffirmed, “A contractual reservation of management rights does not extend beyond the expiration of the contract in the absence of evidence of the parties’ contrary intentions.” Long Island Head Start Child Development Services, 345 NLRB 973 (2005), enf. denied 460 F.3d 254 (2d Cir. 2006). In the instant case, there is no evidence that the parties intended for the management rights provision in the expired contract to extend beyond the expiration of the contract.41 Thus the Respondent’s argument that the management rights clause in the expired contract authorized it to unilaterally depart from existing terms and conditions of employment fails.
I conclude that the Respondent violated Section 8(a)(5) and (1) following the end of the strike, by unilaterally beginning to subcontract bargaining unit work while employees were on layoff, despite a contractual prohibition on subcontracting under such circumstances and without obtaining the Union’s prior consent or bargaining to a new contract or good-faith impasse.
4. Elimination
of overlap meetings
When the strike ended, the Respondent eliminated its established practice of permitting all quality inspectors the option of working 15 minutes of overtime at the end of their shifts in order to participate in “overlap” meetings with personnel on the incoming shifts. The overlap meetings had given quality inspectors the opportunity to earn approximately $1000 in extra wages per year. The discontinuation of these meetings, and the elimination of the opportunity for extra wages, had a real impact on employees and the Respondent admits that scheduled daily overtime is a mandatory subject of bargaining. The Respondent made the change in its established practice regarding the overlap meetings without giving the Union notice or an opportunity to bargain. The Respondent argues that such a change was within its discretion under the management rights provision. Even assuming that the management rights provision would have permitted such a change during the life of the contract, this argument fails because the operation of that provision did not survive the expiration of the contract. Long Island Head Start Child Development Services, supra.
I conclude that the Respondent violated Section 8(a)(5) and (1) when it eliminated the overlap meetings after the strike.
5. Byers’
duties changed
Following the strike,
the Respondent permanently reassigned a number of duties to nonunit employees
that, for 2 or more years, had been performed by Byers, a bargaining unit employee. These reassigned duties included ensuring the
flow of raw materials in and out of the facility, scheduling carriers,
negotiating contracts or rates with carriers, developing packaging, determining
how to utilize floor space in the department, and inspecting the facility’s
buildings and grounds. In order to accomplish
his pre-strike job assignments, Byers had routinely worked 10 to 12 hours of
overtime each week. As a consequence of
the post-strike changes, Byers has not had the opportunity to work any overtime
since returning from the strike. In addition,
Byers was barred from the office area where he had previously worked, and told
that he could no longer use the computer or cell phone to which he had access
prior to the strike. Before reassigning
Byers’ duties, the Respondent did not obtain the Union’s consent, or provide
the
The reassignment of a significant portion of Byers duties to nonunit employees was “a material, substantial, and significant change that ha[d] a real impact on, or cause[d] a significant detriment” to Byers. Golden Stevedoring, supra. Not only did it substantially alter his job, but it deprived him of the significant amounts of overtime pay he had been able to earn while assigned those duties. The Respondent, while conceding that it changed Byers’ duties, argues that the change was not a mandatory subject because the duties that were reassigned involved nonunit work. I reject this argument for two reasons. First, the Respondent has not shown that any of the work that was reassigned from Byers was nonunit work. Byers, a unit employee, had been doing those tasks for a period of several years and, in some instances, longer. He testified that he did not recall the Respondent ever telling him that the tasks were nonunit work and Hillman testified that the reassigned duties had always been considered bargaining unit work. At trial, not a single company official testified that the reassigned duties were nonunit work prior to the strike and Nancy Hauser, who made the decision to reassign the duties, was not even called by the Respondent as a witness. Indeed, the Respondent has not shown that, prior to the strike, the Respondent had ever referred to those duties as nonunit work, or assigned them to nonunit employees. At any rate, the duties had been assigned to Byers, a unit employee, for several years and, under such circumstances, even if some of those duties were previously nonunit work, they became bargaining unit work by dint of being regularly assigned to Byers over a period of years. See Bozzuto’s, Inc., 275 NLRB 353, 355–356 (1985).
The only support that the Respondent offers for its claim that the reassigned duties were nonunit work is the unit definition stipulated to by the parties. The Respondent argues that since the unit definition states that the unit includes “all production and maintenance employees, including truck drivers” and excludes “office clerical employees,” the work reassigned from Byers was not unit work. That argument is not persuasive. The unit definition talks about types of employees, not specific duties. The stipulation does not define the types of work performed by production and maintenance employees, and neither the stipulation, nor the collective bargaining agreement, states that any of Byers’ reassigned duties were not the responsibility of unit employees.
Second, even assuming,
contrary to my conclusion, that all of the work that the Respondent reassigned
from Byers to nonunit employees was nonunit work, the Respondent has still
failed to establish that such reassignment would not be a mandatory subject for
collective bargaining. The Respondent
does not cite any authority for the proposition that an employer need not
bargain before reassigning nonunit duties that have customarily been performed
by unit employees. To the contrary, it
is well established that once a specific job has been included within the scope
of a bargaining unit by consent of the parties, the employer cannot
unilaterally modify that position without first securing the consent of the
union. The Wackenhut Corp., 345 NLRB 850, 852 (2005). The Board has held that a unilateral change
in unit employees’ terms or conditions of employment may violate the Act if it
is “a material, substantial, and significant change that has a real impact on,
or causes a significant detriment to, the employees or their working conditions.”
Golden Stevedoring
In its brief, the Respondent also makes reference to evidence that the Respondent told Byers the change in his duties was necessitated by the “Sarbanes-Oxley Law.” (R. Br.at 30.) However, the Respondent does not cite to any provisions of that law, or explain how permitting Byers to continue performing his prestrike duties could have violated it.
I conclude that the Respondent violated Section 8(a)(5) and (1) by permanently reassigning duties from Byers to nonunit employees after the strike ended.
C. Information Requests
Paragraph 19(c) of the
complaint, as amended, alleges that the Respondent violated the Act by delaying
the provision of updated seniority rosters from about late October 2005 until
January 19, 2006. The evidence showed
that in late October 2005, the
The Board has held
that an employer’s “unreasonable delay in furnishing . . . information is as much of a violation of Section
8(a)(5) of the Act as a refusal to furnish the information at all.” Amersig Graphics, Inc., 334 NLRB 880,
885 (2001); see also Britt Metal
Processing, 322 NLRB 421, 425 (1996), affd. 134 F.3d 385 (11th Cir. 1997)
(Table);
In this case the
Respondent took approximately 3 months to provide the
I conclude that the Respondent violated Section 8(a)(5) and (1) of the Act by unreasonably delaying the provision of the seniority lists requested by the Union beginning in late October 2005.
D. Alleged 8(a)(1) Violations
1. Cooper statement to Rellick
The General Counsel alleges that Cooper, a supervisor for purposes of the Act, unlawfully threatened unit employee Rellick when, on about September 2, 2005, he stated that Rellick “should leave” if he was not happy working for the Respondent and that “if I have to take you upstairs to my office, [you will] be fired and . . . will not be able to collect unemployment.” An employer violates Section 8(a)(1) of the Act by threatening an employee with discharge for engaging in protected activity. Bestway Trucking, Inc., 310 NLRB 651, 671 (1993), enfd. 22 F.3d 177 (7th Cir. 1994); Potential School for Exceptional Children, 282 NLRB 1087, 1090 (1987), enfd. 883 F.2d 560 (7th Cir. 1989); Steinerfilm, Inc., 255 NLRB 769, 769–770 (1981), enfd. in relevant part 669 F.2d 845 (1st Cir. 1982). A statement violates Section 8(a)(1) if “under all the circumstances” the remark “reasonably tends to restrain, coerce, or interfere with the employee’s rights guaranteed under the Act.” GM Electrics, 323 NLRB 125, 127 (1997). For the reasons discussed below, I conclude that the Cooper’s statement to Rellick violated the Act under these standards.
It is clear that the Cooper was threatening that Rellick might be fired and denied unemployment benefits, but it is a closer question whether the threat was related to protected activities. The record shows that Cooper made the statement to Rellick in response to multiple reports from coworkers and supervisors that Rellick was refusing to perform some of his duties and was complaining that he hated his job and did not think the employees should have returned from the strike. If Cooper had told Rellick that the threat related exclusively to Rellick’s reported refusal to perform some of his lawfully assigned tasks, a violation might not be established. An employee’s selective refusal to perform some, but not all, of his or her lawfully assigned tasks is not protected activity,42 and Cooper’s threat would not violate the Act if all it would reasonably be expected to do was discourage Rellick or other employees from engaging in such unprotected activity. However, Cooper did not tell Rellick that the threat of discharge had anything to do with Rellick’s supposed refusal to perform duties. Indeed, when Rellick specifically asked whether he was being accused of something, Cooper declined to clarify. Given that Cooper prefaced the threat by stating that Rellick should leave if he was not happy working for the Respondent, I believe that Rellick and others would reasonably see Cooper’s threat as relating to Rellick’s statements that he hated his job and did not think the employees should have returned from the strike. By discussing his view that the employees should have continued the strike, Rellick was engaging in protected activity. His statement went beyond “mere griping,” both because it grew out of prior group activity and looked towards future group action, such as a resumption of the work stoppage. See Asheville School, Inc., 347 NLRB 877, 881–882 (2006). Therefore, I conclude that Cooper’s threat unlawfully interfered with protected activity.
For the reasons discussed above, I conclude that the Respondent interfered with employees’ protected activity in violation of Section 8(a)(1) when Cooper threatened that Rellick would be terminated and denied unemployment compensation if he did not elect to take a voluntary layoff.43
2.
Interrogation and solicitation to withdraw
economic support from the
The General Counsel
alleges that Lukacs, the Respondent’s human resources manager, violated the
Section 8(a)(1) by interrogating J. Hauser about her support for the Union, and
soliciting J. Hauser to withdraw her economic support for the
The Board has held that an interrogation is unlawful if, in light of the totality of the circumstances, it reasonably tends to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Millard Refrigerated Services, 345 NLRB 1143, 1146 (2005); Matthews Readymix, Inc., 324 NLRB 1005, 1007 (1997), enfd. in part 165 F.3d 74 (D.C. Cir. 1999); Liquitane Corp., 298 NLRB 292, 292–293 (1990). Relevant factors include whether proper assurances were given concerning the questioning, the background and timing of the interrogation, the nature of the information sought, the identity of the questioner, and the place and method of the interrogation. Millard Refrigerated, supra; Stoody Co., 320 NLRB 18, 18–19 (1995); Rossmore House Hotel, 269 NLRB 1176, 1177–1178 (1984), affd. sub nom. Hotel Employees and Restaurant Employees Union Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
Under these standards,
I conclude that Lukacs’ statements to J. Hauser were coercive in violation of
the Act. The questioning took place out
of the presence of other employees in the office of a high ranking manager who
had authority over employee benefits and disciplinary actions. The person questioned was an entry-level
employee who was not shown to have voluntarily revealed that she was continuing
to provide economic support, or any other type of support, to the
For the reasons discussed above, I find that the Respondent violated section 8(a)(1) in October 2005 by coercively interrogating a unit employee about her payment of union dues, and by soliciting the unit employee to stop paying union dues.
E. Allegation that Respondent Failed to Bargain in Good Faith
The complaint alleges
that the Respondent failed and refused to bargain in good faith by its overall
conduct, including the implementation of unilateral changes to employees’ terms
and conditions of employment following the strike, the false declaration of
impasse, the unilateral implementation of changes to employees’ pension
benefits in the absence of impasse, and the extended delay in furnishing the
Union with information necessary to bargaining.
“In determining whether a party has violated its statutory obligation to
bargain in good faith, the Board examines the totality of the party’s conduct,
both at and away from the bargaining table.”
Flying Foods, 345 NLRB 101,
107 (2005). The Board “must decide
whether a party is engaging in hard, but lawful, bargaining to achieve an agreement
that it considers desirable or is unlawfully endeavoring to frustrate the
possibility of arriving at any agreement.”
By its actions in this
case, the Respondent manifested a clear intent to avoid agreement on a new
contract. In an August 19 letter, after
only a single negotiating session with Love—the
The Respondent’s
intent to avoid an agreement is also shown by its insistence on a false, and
ultimately unreasonable, deadline for resolving the pension issue. Hewitt represented to the Union that January
1, 2006, was an externally imposed deadline for making a change to the pension
contribution level for 2006, such that agreement had to be reached on the
contribution level prior to that date.
When Hewitt declared that the parties were at impasse and that the
Respondent would unilaterally implement its pension proposal, he relied on the
fact that the parties could not reach agreement by that supposed deadline. The record makes clear, however, that there
was no such deadline. Indeed, the
Respondent has not shown that Hewitt had any basis at all for asserting to the
The above factors are
sufficient to show that the Respondent was not attempting, in good faith, to
reach an agreement. That conclusion is buttressed by consideration of other
behavior engaged in by the Respondent.
For example, one of the Respondent’s bargaining proposals was to
eliminate the contractual prohibition on subcontracting unit work while there
were employees on layoff. When the
For the reasons discussed above, I conclude that the Respondent, by its overall conduct, has failed and refused to bargain in good faith with the Union as the exclusive collective bargaining representative of unit employees in violation of Section 8(a)(5) and (1).
F. Alleged 8(a)(3) and (1) Violations
1. Delay in
reinstating Kornides and Gruss
The General Counsel
alleges that the Respondent violated Section 8(a)(3) and (1) of the Act when,
following the Union’s unconditional offer to return to work, the Respondent
refused to reinstate former strikers Kornides and Gruss during the period from
August 29, 2005, to April 3, 2006.
Since at least the time of the Board’s decision in Laidlaw Corp., 171 NLRB 1366, 1368 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397
U.S. 920 (1970), it has been established that, “in the absence of a legitimate
and substantial business justification, economic strikers are entitled to
immediate reinstatement to their prestrike jobs upon making an unconditional
offer to return to work.” Supervalu, Inc., 347 NLRB 404, 405 (2006),
citing Laidlaw Corp. supra. “One recognized legitimate and substantial
business justification for refusing to reinstate economic strikers is that
their jobs are occupied by workers hired as permanent replacements.”
Kornides and Gruss were both economic strikers for whom the Respondent hired permanent replacement employees. Under the principles set forth above, they were, therefore, not entitled to immediate reinstatement to their former positions as general finishers, but were entitled to be recalled when openings occurred for those, or substantially equivalent, positions. The record in this case does not establish that such openings occurred prior to April 2006. The persons who were hired to permanently replace Kornides and Gruss were not shown to have departed the company prior to April 2006. Nor does the record show that before Kornides and Gruss were reinstated the Respondent hired any new employees for positions that either former striker was qualified to perform. On this record, I conclude that the Respondent’s failure to reinstate Kornides and Gruss prior to April 2006 was not shown to violate their Laidlaw rights.
I have also considered the evidence concerning Kornides and Gruss under the analytical framework set forth in Wright Line for evaluating claims that an employer discriminated against an employee on the basis of union or protected activity. 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), approved in NLRB v. Transportation Corp., 462 U.S. 393 (1983). Under that framework, the General Counsel bears the initial burden of showing that the Respondent’s decision not to reinstate Kornides and Gruss prior to April 2006 was motivated, at least in part, by antiunion considerations. If the General Counsel makes this showing, the burden shifts to the Company to demonstrate that it would have taken these same actions even in the absence of the protected activity. Senior Citizens Coordinating Council, 330 NLRB 1100, 1105 (2000). In the instant case, the evidence fails to show that antiunion considerations were a motivating factor in the Respondent’s action with respect to Kornides and Gruss. The record shows that both Kornides and Gruss participated in the strike, but also shows that almost all of the other approximately 300 unit employees did so as well. There was no evidence that either of the alleged discriminatees was a particularly active or outspoken union supporter or that they engaged in any other protected activities that would cause the Respondent to single them out from among the returning strikers for discriminatory treatment. Indeed, the uncontradicted evidence shows that Kornides and Gruss were selected for replacement during the strike because they were the two employees in the bargaining unit with the least seniority. The General Counsel does not assert, and the record provides no basis for believing, that the Respondent did not need to hire the two permanent replacement employees during the strike or that the decision to hire them was motivated by an unlawful purpose. Nor does the evidence provide a basis for concluding that the Respondent’s decision not to hire any new employees for general finisher positions, or substantially equivalent jobs, between August 29, 2005, and April 3, 2005, was motivated by Kornides’ and Gruss’ participation in the strike. The evidence simply fails to give rise to an inference that the Respondent delayed reinstating Kornides and Gruss because of the strike or any other protected activity.
For the reasons discussed above, I conclude that the allegation that the Respondent violated Section 8(a)(3) and (1) by refusing to reinstate Kornides and Gruss during the period from August 29, 2005, until April 3, 2006, should be dismissed.44
2. Demotion of
Grazier
The General Counsel
also alleges that the Respondent violated Section 8(a)(3) and (1) by
discriminatorily demoting Grazier from his position as a group leader in
October or November 2005. Grazier was
shown to have been active in union activities.
He engaged in confrontational behavior during the strike and was one of
six employees who the Respondent told the
The question of
whether Grazier was discriminatorily demoted turns, at the outset, on whether
the Respondent actually demoted him, or whether Grazier himself resigned from
the group leader designation. U.S. Plastics Corp., 213 NLRB 323, 331
(1974) (Whether employee “was discriminated against turns, first, on whether he
was discharged or quit.”) I conclude
that the Respondent reasonably understood Grazier to be resigning from the
group leader designation when he told
I recognize that
Grazier resigned in reaction to statements by
For the reasons discussed above, I conclude that the allegation that the Respondent violated Section 8(a)(3) and (1) by discriminatorily demoting Grazier from his position as group leader in October or November 2005 should be dismissed.
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 Union (Local 1357) is a labor
organization within the meaning of Section 2(5) and is the exclusive collective
bargaining representative of unit employees at the Respondent’s
3. The Respondent violated Section 8(a)(5) and (1) of the Act: on January 1, 2006, by unilaterally reducing its contributions to the unit employees’ pension fund at a time when the Respondent had not bargained to a good-faith impasse; on December 13 and 20, 2005, by falsely declaring impasse and announcing its intention to unilaterally implement a pension plan proposal; after the strike ended, by unilaterally beginning to subcontract normal bargaining unit work while employees were on layoff, despite a contractual prohibition on subcontracting under such circumstances and without obtaining the Union’s prior consent or bargaining to a new contract or good faith impasse; after the strike, by unilaterally eliminating its established practice regarding overlap meetings for quality inspectors; after the strike, by permanently reassigning duties from Byers to nonunit employees; by unreasonably delaying the provision of the seniority lists requested by the Union from October 2005 until January 19, 2006; and, through its overall conduct, by failing and refusing to bargain in good faith with the Union as the exclusive collective-bargaining representative of unit employees.
4. The Respondent violated Section 8(a)(1) of the Act: in October 2005, by coercively interrogating a unit employee about her payment of union dues, and by soliciting the unit employee to stop paying union dues; and, shortly after the strike ended, when Cooper responded to protected activity by Rellick by threatening that Rellick would be terminated and denied unemployment compensation if he did not elect to take a voluntary layoff.
5. I conclude that the record does not establish the Respondent committed the other violations alleged.
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.
In particular, I recommend that the Respondent be ordered to place in
effect all pension benefit terms required by the contract that expired on
January 31, 2005, and maintain those terms in effect until the parties have bargained
to agreement or a valid impasse, or the
In addition, I recommend that the Respondent be required to make employees whole for any loss of earnings or other benefits that resulted from the other changes the Respondent made in violation of its bargaining obligations under Section 8(a)(5) and (1). Such amounts are to be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, supra. This includes making Byers whole for losses, including the loss of overtime compensation, that he suffered as a result of the Respondent’s unlawful reassignment of many of his duties to nonunit employees. Make-whole relief should also be provided to remedy the losses that quality inspectors suffered as a result of the Respondent’s unlawful discontinuation of the daily overlap meetings for which those employees had received additional compensation. Make whole relief should also be provided to employees who suffered losses as a result of the Respondent’s unlawful subcontracting of bargaining unit work. In particular, such a remedy is warranted for Kornides and Gruss. Since the Respondent was contractually required to recall Kornides and Gruss from layoff before initiating such subcontracting, I conclude that Kornides and Gruss are entitled to a make-whole remedy covering the period starting when the Respondent first subcontracted bargaining unit work after the strike and ending when the Respondent reinstated those employees. St. Regis Hotel, 339 NLRB No. 96, slip op. at 2–3 (2003) (not reported in Board volume), 2003 WL 21713024, *3 (NLRB) (remedy includes make-whole relief for employees who were on layoff as a result of the employer subcontracting work in violation of Section 8(a)(5) and (1)). Therefore, the Respondent must be required to reimburse Kornides and Gruss for any loss of earnings and other benefits that those employees suffered due to the Respondent’s unlawful conduct during such period, to be computed in the manner prescribed in F. W. Woolworth Co., supra, with interest as prescribed in New Horizons for the Retarded, supra.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended Order.46
ORDER
The Respondent, Airo
Die Casting, Inc. (a subsidiary of Leggett & Platt, Incorporated),
1. Cease and desist from
(a) Falsely declaring impasse and/or announcing its intention to unilaterally implement its pension proposal, or any other contract proposal, at a time when the parties have not reached a new contract or a valid, good faith, impasse in bargaining.
(b) Unilaterally implementing its pension proposal, or any other contract proposal, at a time when the parties have not reached a new contract or a valid, good faith, impasse in bargaining.
(c) Unilaterally reducing its contributions to the employees’ pension fund at a time when the parties have not reached a new contract or a valid, good faith, impasse in bargaining,
(d) Unilaterally subcontracting bargaining unit work while employees are on layoff without bargaining to a new contract or a valid, good faith, impasse in bargaining.
(e) Unilaterally
discontinuing the established, pre-strike, practice regarding overlap meetings
for quality inspectors without providing the
(f) Permanently
reassigning duties from any unit employee to nonunit employees, without
providing the
(g) Unreasonably
delaying the provision of information requested by the Union that is relevant
and necessary to the
(h) Failing and
refusing, through its overall conduct, to bargain collectively and in good
faith with the
(i) Coercively
interrogating any unit employee about union support or union activities, and/or
attempting to coerce any unit employee to withdraw support from the
(j) Threatening that any unit employee will be terminated and denied unemployment compensation as a result of that employee engaging in protected activity.
(k) 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) Restore, honor, and continue employees’ pension
benefit terms as they existed under the collective bargaining agreement that
expired on January 31, 2005, and maintain those terms until such time as the
parties complete a new agreement, good-faith bargaining leads to a valid
impasse, or the
(b) Make whole employees and former employees for any and all losses of benefits incurred as a result of the Respondent’s unlawful failure to continue providing the pension benefit terms required by the collective bargaining agreement that expired on January 31, 2005, with interest, as set forth in the remedy section of this decision.
(c) Make all contributions to the LIUNA pension fund that are required under the terms of the collective bargaining agreement that expired on January 31, 2005, including all required amounts that the Respondent has failed to contribute since its false declaration of impasse on December 13, 2005, as set forth in the remedy section of this decision.
(d) Make whole employees and former employees for any and all losses of wages and other benefits that occurred as a result of the Respondent’s unlawful subcontracting, with interest, as set forth in the remedy section of this decision.
(e) Reinstitute the practice with respect to overlap meetings for quality inspectors as that practice existed immediately prior to the strike.
(f) Make whole employees and former employees for any and all losses of wages and benefits incurred as a result of the Respondent’s unlawful discontinuation of the overlap meetings for quality inspectors, as set forth in the remedy section of this decision.
(g) Restore to unit employee Edward Byers all duties that were unlawfully reassigned from him after the strike, and restore to him all conditions of employment that accompanied the performance of those duties, including the conditions relating to work station, equipment, and overtime.
(h) Make whole Edward Byers for any and all losses of wages and benefits incurred as a result of the Respondent’s unlawful reassignment of duties from him to nonunit employees, with interest, as set forth in the remedy section of this decision.
(i) On request, bargain collectively and in good faith with Factory Workers Laborers’ Local Union 1357 a/w Laborers’ International Union of North America, AFL, CIO, as the exclusive representative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement:
All production and
maintenance employees, including truck drivers of the Company employed at its
(j) 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.
(k) Within 14 days
after service by the Region, post at its facility in
(l) 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 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 falsely declare impasse or announce an intention to unilaterally implement our pension proposal, or any other contract proposal, at a time when the parties are not at a valid, good faith, impasse in bargaining.
We will not unilaterally implement our pension proposal, or any other contract proposal, at a time when the parties are not at a valid, good faith, impasse in bargaining.
We will not unilaterally reduce our contributions to your pension fund at a time when the parties are not at a valid, good faith, impasse in bargaining.
We will not unilaterally subcontract bargaining unit work while any employees are on layoff without bargaining to a new contract or good faith impasse.
We will not unilaterally discontinue the prestrike
practice regarding overlap meetings for quality inspectors without providing
the
We will not
permanently reassign duties from you to nonunit employees, without providing
the
We will not unreasonably delay providing information requested
by the Union that is relevant and necessary to the
We will not fail and refuse, through our overall conduct, to
bargain collectively and in good faith with the
We will not coercively interrogate you about union
support or union activities, and/or attempt to coerce you to withdraw support
from the
We will not threaten that you will be terminated and denied unemployment compensation as a result of your engaging in protected activity.
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 restore,
honor, and continue your pension benefit terms as set forth in the collective-bargaining
agreement that expired on January 31, 2005, and maintain those terms until such
time as the parties complete a new agreement, good-faith bargaining leads to a valid
impasse, or the
We will make you whole for any and all losses of benefits that you incurred as a result of our unlawful failure to provide the pension benefit terms contained in the collective bargaining agreement that expired on January 31, 2005.
We will make all contributions to your pension fund that are required under the terms of the collective bargaining agreement that expired on January 31, 2005, including all amounts that we unlawfully failed to contribute since falsely declaring impasse on December 13, 2005.
We will make you whole for any and all losses of wages and/or other benefits that occurred as a result of our unlawful subcontracting.
We will reinstate the practice with respect to overlap meetings for quality inspectors as that practice existed immediately prior to the strike.
We will make you whole for any loss of wages and benefits incurred as a result of our unlawful discontinuation of the overlap meetings for quality inspectors.
We will restore to unit employee Edward Byers all duties that were unlawfully reassigned from him after the strike, and restore to him the conditions of employment that had accompanied those duties, including the conditions relating to work station, equipment, and overtime.
We will make Byers whole for any and all losses of wages and benefits incurred as a result of our unlawful reassignment of duties from him to nonunit employees.
We will, on request, bargain collectively and in good faith with Factory Workers Laborers’ Local Union 1357 a/w Laborers’ International Union of North America, AFL–CIO, as the exclusive representative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement:
All production and
maintenance employees, including truck drivers of the Company employed at its
Airo Die
Casting, Inc.