304 NLRB No. 151
LORAIN AREA AMBULANCE COMPANY, INC. and INTERNATIONAL UNION, ALLIED INDUSTRIAL WORKERS, AFL-CIO MARK J. TURNER, an Individual and LORAIN LIFE CARE AMBULANCE SERVICE, INC. Party in Interest
Cases 8-CA-19596, /1/ 8-CA-19771
Case 8-CA-19845
D-2299
Lorain, OH
On September 13, 1988, the National Labor Relations Board issued a
Decision and Order in this proceeding, /2/ directing Lorain Area
Ambulance Company, Inc., the Respondent, inter alia, to make whole nine
employees for loss of pay and other benefits resulting from its unfair
labor practices. The United States Court of Appeals for the Sixth
Circuit enforced the Board's Order on August 9, 1989. /3/ On November
20, 1990, the Regional Director for Region 8 issued a compliance
specification and notice of hearing, setting forth allegations with
respect to the backpay period and the amount of backpay due the
discriminatees. On December 20, 1990, the Party in Interest filed its
answer to the complaint specification and on January 7, 1991, the
Respondent filed its answer. On June 4, 1991, the General Counsel
notified the Party in Interest and the Respondent that their answers did
not appear to be sufficient to place in issue certain allegations of the
specification, including various factors entering into the computation
of gross backpay. The General Counsel advised the parties of the date
by which their amended answers were to be filed, as well as of his
intention to seek summary judgment with regard to allegations requiring
more than a general denial that were not properly denied by the amended
answers and with regard to allegations about which issues for hearing
were not raised by the amended answers. On June 7, 1991, the Respondent
and the Party in Interest filed amended answers to the compliance
specification.
On June 17, 1991, the General Counsel filed with the Board in
Washington, D.C., a motion to strike in part the amended answers of the
Respondent and the Party in Interest and a Motion for Partial Summary
Judgment, with brief in support and exhibits attached. The General
Counsel submits that the amended answers of the Respondent and the Party
in Interest fail to conform to the requirements of Section 102.56 of the
Board's Rules and Regulations relating to various factors entering into
the computation of backpay, including the backpay period. The General
Counsel thus submits that certain paragraphs of the Respondent's and the
Party in Interest's amended answers should be stricken and that all
allegations of the specification should be found to be true with the
exception of the amount of interim earnings and the amount of medical
expenses of the discriminatees.
On June 19, 1991, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause why the General
Counsel's motion should not be granted. The Respondent and the Party in
Interest each filed a timely response.
On the entire record, the Board makes the following
Section 102.56(b) and (c) of the National Labor Relations Board's
Rules and Regulations states, in pertinent part:
(b) Contents of answer to specification. -- The answer shall
specifically admit, deny, or explain each and every allegation of
the specification, unless the respondent is without knowledge, in
which case the respondent shall so state, such statement operating
as a denial. Denials shall fairly meet the substance of the
allegations of the specification at issue. When a respondent
intends to deny only a part of an allegation, the respondent shall
specify so much of it as is true and shall deny only the
remainder. As to all matters within the knowledge of the
respondent, including but not limited to the various factors
entering into the computation of gross backpay, a general denial
shall not suffice. As to such matters, if the respondent disputes
either the accuracy of the figures in the specification or the
premises on which they are based, the answer shall specifically
state the basis for such disagreement, setting forth in detail the
respondent's position as to the applicable premises and furnishing
the appropriate supporting figures.
(c) Effect of failure to answer or plead specifically and in
detail to backpay allegations of specification. -- . . . If the
respondent files an answer to the specification but fails to deny
any allegation of the specification in the manner required by
paragraph (b) of this section, and the failure so to deny is not
adequately explained, such allegation shall be deemed to be
admitted to be true, and may be so found by the Board without the
taking of evidence supporting such allegation, and the respondent
shall be precluded from introducing any evidence controverting the
allegation.
As indicated above, the General Counsel has filed a motion to strike
in part the Respondent's and the Party in Interest's amended answers on
the basis of alleged substantive deficiencies. A review of the
Respondent's and the Party in Interest's amended answers reveals that
each party disputes the specification's calculation of the backpay
period for the employees but fails to offer alternative dates. The
Respondent and the Party in Interest also dispute the specification's
calculation as to gross earnings but have failed to state the basis for
their disagreement with the figures used to compute the gross earnings
each employee would have received and have failed to furnish figures
concerning the appropriate measure of gross earnings for the employees.
In addition, the Respondent and the Party in Interest deny that the
General Counsel has used the proper straight time and overtime wage
rates for employees, but fail to explain why they are incorrect or to
provide any asserted proper rates. Similarly, the Respondent and the
Party in Interest dispute the General Counsel's measure of average
weekly straight time and overtime hours for each employee, but provide
no alternative measure of straight time or overtime hours. The
Respondent and the Party in Interest dispute the General Counsel's
definition of both net interim earnings and net backpay but fail to
offer alternative formulations. Further, the Respondent and the Party
in Interest dispute the General Counsel's inclusion within their backpay
liability, the cost to employees of alternative insurance premiums as
well as employees' out-of-pocket medical expenses. Finally, in
disputing the amounts set forth in the specification for medical
insurance and expense reimbursement, the Respondent challenges the bases
upon which the figures were derived, but offers no alternative basis for
making such calculations.
We agree with the General Counsel that the above-described aspects of
the Respondent's and the Party in Interest's amended answers fail to
comply with the requirements of Section 102.56(b) and (c). With regard
to the Party in Interest, which was not the employer at the time the
underlying unfair labor practices occurred or were litigated, Section
102.56(b) requires that if an employer is without knowledge regarding an
allegation of the backpay specification, its answer "shall so state,
such statement operating as a denial." The Party in Interest's amended
answer does not state that it is without knowledge of the wages and
hours of the discharged employees, nor does its answer contain any
explanation for the failure to deny specifically the backpay
allegations.
In its response to the Notice to Show Cause, however, the Party in
Interest claims that it did not have notice of the Board's September
1988 Decision and Order or of the court's August 1989 judgment enforcing
that Order. It further asserts that it had no opportunity to review any
proof of the claims made for wages, and had not seen any numbers,
employment records, or affidavits relating to the employees' interim
earnings and, therefore, should be afforded an opportunity to see proof
of each claim. We find these assertions unpersuasive. In its answer
and amended answer, the Party in Interest admits that it learned of the
underlying litigation at the time it purchased the Respondent's assets
in October 1987, that it hired some of the same employees who had
previously worked for the Respondent, and that it continues to operate
an ambulance service from the same premises that the Respondent had
occupied. In these circumstances, the Party in Interest's denial of its
successor status and liability (and the Respondent's denial that the
Party in Interest is its successor) are inconsistent with the admitted
facts. /4/ The Party in Interest's claims that it lacked knowledge
about and access to employment and wage records are insufficient to
operate as a denial to the compliance specification. Accordingly,
because the Party in Interest has failed to deny specifically the
above-described allegations, or to explain adequately its failure to do
so, Section 102.56(c) requires that these allegations be deemed to be
admitted as true.
In its amended answer, the Respondent does not assert that it lacks
knowledge of the backpay period or of the appropriate figures to be used
to determine employees' gross backpay; however, the Respondent fails to
provide any alternative backpay dates or formula for computing the
amounts of gross backpay owed. The dates marking the beginning of the
employees' backpay period were established in the underlying unfair
labor practice proceeding and the Respondent would certainly know
whether and when it offered those employees reinstatement so as to toll
the backpay period. In addition, the hours worked by the Respondent's
employees and their rates of pay are normally within an employer's
knowledge. In its response to the Notice to Show Cause, the Respondent
asserts that it no longer has knowledge of these matters, as it
previously gave certain original payroll records to the General Counsel
during the litigation of this matter and some of them have not been
returned. The Respondent asserts that it was therefore unable to
dispute more specifically the accuracy of the backpay figures or provide
alternative formulas for computing the amounts of gross backpay.
Although the Respondent may no longer possess some of its original
payroll records allegedly in the General Counsel's possession, and
states that it has notified the General Counsel by telephone about these
records but has not yet been provided with them, the Respondent fails to
specify when such notification was given, whether the General Counsel
was advised of the reason it needed those records, or whether the
Respondent ever requested copies or access to those records before
filing its amended answer. The Respondent also implicitly admits that
some of the records have been returned. Thus, we do not find the
Respondent's belated assertion of lack of knowledge to be an adequate
explanation for its failure to comply with the requirements of Section
102.56 in its answer or amended answer. /5/
The General Counsel contends that, because the Respondent's and the
Party in Interest's general denials to these allegations do not comply
with the requisites of Section 102.56, these answers should be striken,
that the related allegations of the specification should be deemed
admitted as true, and that summary judgment should be granted as to
those parts of the backpay specification.
We agree with the General Counsel that as to allegations of the
backpay specification involving the formula for gross backpay and the
resulting computations, as well as the formula for net backpay,
including provisions relating to backpay liability for employee
insurance premiums and out-of-pocket medical expenses, the Respondent's
and Party in Interest's amended answers should be stricken as
insufficient under Section 102.56(b) and (c) of the Board's Rules and
Regulations, and we deem such allegations to be admitted as true.
Accordingly, we shall grant the General Counsel's motion to strike in
part and Motion for Partial Summary Judgment and shall direct a hearing
limited to issues concerning interim earnings and the amount of medical
expenses of the discriminatees.
It is ordered that the General Counsel's motion to strike in part the
Respondent's and the Party in Interest's amended answers to the backpay
specification is granted.
IT IS FURTHER ORDERED that the General Counsel's Motion for Partial
Summary Judgment concerning all allegations in the compliance
specification except amounts of interim earnings and amounts of medical
expenses of the discriminatees is granted.
IT IS FURTHER ORDERED that this proceeding is remanded to the
Regional Director for Region 8 for the purpose of issuing a notice of
hearing and scheduling a hearing before an administrative law judge for
the purpose of taking evidence concerning interim earnings and medical
expenses of the discriminatees. The judge shall prepare and serve on
the parties a decision containing findings of fact, conclusions of law,
and recommendations based on all the record evidence. Following service
of the judge's decision on the parties, the provisions of Section 102.46
of the Board's Rules and Regulations shall be applicable.
Dated, Washington, D.C. September 30, 1991
James M. Stephens, Chairman
Clifford R. Oviatt, Jr., Member
John N. Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
(SEAL)
/1/ The case number is corrected pursuant to the General Counsel's
unopposed motion.
/2/ 290 NLRB No. 132, not published in Board volume.
/3/ 881 F.2d 1076 (unpublished).
/4/ See Appelbaum Industries, 294 NLRB No. 62 (June 13, 1989); Good
N' Fresh Foods, 287 NLRB 1231 (1988), Perma Vinyl Corp., 164 NLRB 968
(1967), enfd. sub. nom. United States Pipe & Foundry Co. v. NLRB, 398
F.2d 544 (5th Cir. 1968).
/5/ See Schnabel Associates, 286 NLRB 630 (1987).
304 NLRB No. 150
DIX CONSTRUCTION, INC. and MASSACHUSETTS LABORERS' BENEFIT FUNDS
Case 1-CA-27780
D-2298
Brockton, MA
Upon a charge filed by the Massachusetts Laborers' Benefit Funds on
November 8, 1990, the General Counsel of the National Labor Relations
Board issued a complaint on December 17, 1990, against Dix Construction,
Inc., the Respondent, alleging that it has violated Section 8(a)(5) and
(1) of the National Labor Relations Act. The Respondent has failed to
file an answer.
On June 17, 1991, the General Counsel filed a Motion for Summary
Judgment. On June 20, 1991, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause why the motion should
not be granted. The Respondent filed no response. The allegations in
the motion are therefore undisputed.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
Section 102.20 of the Board's Rules and Regulations provides that the
allegations in the complaint shall be deemed admitted if an answer is
not filed within 14 days from service of the complaint, /1/ unless good
cause is shown. The complaint states that unless an answer is filed
within 14 days of service, "all of the allegations in the complaint
shall be deemed to be admitted to be true and shall be so found by the
Board." Further, the undisputed allegations in the Motion for Summary
Judgment disclose that counsel for the General Counsel, by letter dated
April 9, 1991, notified the Respondent that unless an answer was
received by April 16, 1991, a Motion for Summary Judgment would be
filed.
In the absence of good cause being shown for the failure to file a
timely answer, we grant the General Counsel's Motion for Summary
Judgment.
On the entire record, the Board makes the following
The Respondent, a Massachusetts corporation, with an office and place
of business in Brockton, Massachusetts, has been engaged as a cement
finishing contractor in the construction industry. During the 12-month
period preceding issuance of the complaint the Respondent provided
services valued in excess of $50,000 for employers who are themselves
directly engaged in commerce. We find that the Respondent is an
employer engaged in commerce within the meaning of Section 2(6) and (7)
of the Act and that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
Since December 17, 1986, the Massachusetts Laborers' District Council
of the Laborers' International Union of North America, AFL-CIO has been
the exclusive collective-bargaining representative of the employees in
the following appropriate unit:
All employees of the Respondent employed at its Brockton,
Massachusetts facility, in the classifications set forth in the
1988-1991 agreement, excluding all other employees, guards and
supervisors as defined in the Act.
The Associated General Contractors of Massachusetts, Inc. and
Building Trades Employer's Association of Boston and Eastern
Massachusetts, Inc., hereafter jointly called the Associations, are
organizations composed of employers in the construction industry which
represent their employer-members in negotiating and administering
collective-bargaining agreements with various labor organizations,
including the Union. On December 17, 1986, the Respondent executed an
Acceptance of Agreement and Declaration of Trust with the Union by which
it agreed to be bound by the 1985-1988 agreement and any successor
agreements. On June 1, 1988, the Associations and the Union entered
into an agreement effective June 1, 1988, through May 31, 1991.
The complaint alleges that since about June 20, 1990, the Respondent
has failed and refused to remit to the Union dues under article VIII and
fringe benefit payments which have become due since about June 20, 1990,
under articles XI, XII, XIII, XIV, and XV of the 1988-1991 agreement as
follows:
(a) Health and Welfare Fund
(b) Pension Fund
(c) Training Trust Fund
(d) Legal Services Fund
(e) Annuity Fund
We find that the Respondent by such acts and conduct has failed and
refused to bargain in violation of Section 8(a)(5) and (1) of the Act.
By failing and refusing to remit to the Union authorized dues and
fringe benefit payments to the Health and Welfare Fund, Pension Fund,
Training Trust Fund, Legal Services Fund, and Annuity Fund, which have
become due under the collective-bargaining agreement since about June
20, 1990, the Respondent has failed and refused to bargain in good faith
with the Union and has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act.
Having found that the Respondent has engaged in certain unfair labor
practices, we shall order it to cease and desist and to take certain
affirmative action designed to effectuate the policies of the Act.
We shall order the Respondent to remit to the Union authorized dues
that have become due since June 20, 1990, as required by the
collective-bargaining agreement, with interest to be computed in the
manner prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987). In addition, the Respondent shall remit to the Union the fringe
benefit contributions to the Health and Welfare Fund, Pension Fund,
Training Trust Fund, Legal Services Fund, and Annuity Fund which have
become due since June 20, 1990, with any additional amounts applicable
to those payments to be computed in accordance with the Board's decision
in Merryweather Optical Co., 240 NLRB 1213 (1979). The Respondent shall
also reimburse its unit employees at the Brockton facility for any
expenses resulting from its failure to make its contractually required
fringe benefit remittances to the Union in the manner set forth in Kraft
Plumbing & Heating, 252 NLRB 891 (1980), enfd. 661 F.2d 940 (9th Cir.
1981).
The National Labor Relations Board orders that the Respondent, Dix
Construction, Inc.,, Brockton, Massachusetts, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Massachusetts
Laborers' District Council of the Laborers' International Union of
North America, AFL-CIO, during the term of the
collective-bargaining agreement by failing and refusing to remit
to the Union authorized dues and fringe benefit payments to the
Health and Welfare Fund, Pension Fund, Training Trust Fund, Legal
Services Fund, and Annuity Fund that have become due since June
20, 1990.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make all contributions to the Health and Welfare Fund,
Pension Fund, Training Trust Fund, Legal Services Fund, and
Annuity Fund which have become due since June 20, 1990, as
required by the collective-bargaining agreement, and remit all
union authorized dues and make unit employees whole, as set forth
in the remedy section of this decision. The appropriate unit is:
All employees of the Respondent in the classifications set
forth in the 1988-1991 agreement, excluding all other employees,
guards and supervisors as defined in the Act.
(b) Preserve and, on request, make available to the Board or
its agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel records and
reports, and all other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its facility in Brockton, Massachusetts, copies of
the attached notice marked "Appendix." /2/ Copies of the notice,
on forms provided by the Regional Director for Region 1, after
being signed by the Respondent's authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director in writing within 20 days from
the date of this Order what steps the Respondent has taken to
comply.
Dated, Washington, D.C. September 27, 1991
Dennis M. Devaney, Member
Clifford R. Oviatt, Jr., Member
John N. Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
(SEAL)
The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide by
this notice.
WE WILL NOT fail or refuse to bargain in good faith with the
Massachusetts Laborers' District Council of the Laborers' International
Union of North America, AFL-CIO by failing and refusing to make
contractually-required payments to the Health and Welfare Fund, Pension
Fund, Training Trust Fund, Legal Services Fund, and Annuity Fund, as
well as remitting authorized union dues to the Union.
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 make all contributions to the aforementioned funds and remit
all authorized union dues with interest that have become due since June
20, 1990, and we will make unit employees whole. The unit is:
All employees in the classifications set forth in the 1988-1991
agreement, excluding all other employees, guards and supervisors
as defined in the Act.
DIX CONSTRUCTION, INC.
(Employer)
Dated . . . By (Representative) (Title)
This is an official notice and must not be defaced by anyone.
This notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material. Any questions concerning this notice or compliance with its
provisions may be directed to the Board's Office, 10 Causeway Street,
Sixth Floor, Boston, Massachusetts 02222-1072, Telephone 617-565-6739.
/1/ Counsel for the General Counsel was unable to locate the return
receipt for service of the complaint. In view of the Respondent's
failure to assert that it did not receive the complaint and notice of
hearing, or that its failure to respond was based on improper service,
as well as evidence that the Respondent did receive all other documents
such as the order scheduling hearing which was mailed after the
complaint and notice of hearing and was acknowledged by return receipt,
we find that counsel for the General Counsel's failure to produce the
return receipt does not constitute a fatal defect in service. See
generally Electrical Workers IBEW Local 11 (Anco Electrical), 273 NLRB
183, 191 (1984).
/2/ If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading "POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD" shall read "POSTED PURSUANT TO A
JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD."
304 NLRB No. 149
ELLISON BAKERY, INC. and TEAMSTERS LOCAL UNION NO. 414, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, AFL-CIO /1/
Case 25-CA-19313
D-2297
Ft. Wayne, IN
On May 3, 1991, /2/ Administrative Law Judge Harold Bernard, Jr.,
issued the attached supplemental decision. The Applicant filed
exceptions and a supporting brief. The General Counsel filed an
answering brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the
exceptions and briefs and has decided to affirm the judge's rulings,
findings, /3/ and conclusions and to adopt the judge's recommended
Order.
The recommended Order of the administrative law judge is adopted, and
the application of the Applicant, Ellison Bakery, Inc., Fort Wayne,
Indiana, for attorney fees and expenses under the Equal Access to
Justice Act is denied.
Dated, Washington, D.C. September 27, 1991
James M. Stephens, Chairman
Dennis M. Devaney, Member
John N. Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
(SEAL)
/1/ The name of the Charging Party has been changed to reflect the
new official name of the International Union.
/2/ The decision was incorrectly dated May 3, 1990.
/3/ The Applicant urges that the judge could not have considered its
May 3, 1991 reply brief since he issued his decision that date. The
General Counsel correctly notes, however, that the reply brief was due
May 1, 1991, and, therefore, the Applicant's reply brief was untimely
filed.
JD-289-90
Ft. Wayne, IN
ELLISON BAKERY, INC. and TEAMSTERS LOCAL UNION NO. 414 INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL-CIO.
Case 25-CA-19313
Richard J. Simon, Esq., and Mark T. Dabertin, Esq., Indianapolis, IN,
for General Counsel.
John T. Menzie, Esq., Ft. Wayne, IN, for Respondent.
HAROLD BERNARD, JR., Administrative Law Judge: This case was tried
in Fort Wayne, Indiana, on September 19, 20 and 21, 1989 on a complaint
issued July 1, 1988, as amended on July 8, 1988, and November 29, 1988,
and as further amended on August 10, 1989, based on a charge filed by
the Union on May 18, 1988.
The main issue is whether Respondent, in violation of Section 8(a)(1)
and (3) of the Act, terminated 30 of its part-time employees on May 16,
1988 in order to confer the benefit of a greater number of work hours
per week on its full-time employees for the purpose of discouraging
full-time employees from engaging in activities in support of the Union
or engaging in other protected concerted activities. Other issues are
whether the Respondent threatened employees with discharge if they
joined or supported the Union, threatened plant closure if employees
selected the Union as bargaining representative, attributed employee
discharges to employee support for the Union, and interrogated employees
concerning employee support for the Union in violation of Section
8(a)(1) of the Act.
As set forth below, I have found that Respondent did not violate
Sections 8(a)(1) and (3) of the Act by its terminations of 30 part-time
employees on May 16, 1988 and I do not find that other allegations in
the complaint are sufficiently supported by probative evidence necessary
to establish any other violations of the Act.
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:
Respondent is an Indiana corporation engaged in baking, sale and
distribution of cookies and other baked products at its plant in Fort
Wayne, Indiana, from which it annually ships products valued in excess
of $50,000 directly to customers located outside Indiana. As admitted,
I find Respondent is an employer engaged in commerce within the meaning
of Sections 2(2), (6) and (7) of the Act. I further find that the Union
is a labor organization within the meaning of Section 2(5) of the Act.
In the years 1983, 1984, 1985, and 1986 when promotional periods and
Christmas bakes were over, Respondent laid off part-time employees as
its production needs decreased. In 1987, Respondent's work force had
increased due to projections from promotional campaigns and, because
those projections seemed so promising, Respondent kept on its part-time
employees after the usual slumps, reducing the hours of all employees
during what it hoped would be temporary decreases in production needs.
The 1987 projections, however, proved much overblown, and due to the
discounted sales prices in the buy-one get-one-free promotion for its
cookies, costly to Respondent. In addition, the record shows that a
number of senior employees complained to management about having to work
the same reduced number of hours as the less senior part-time employees,
thereby incurring losses in their wages from prior years. In the fall
of 1987, Respondent employed 50 full-time employees, 40 regular
part-time employees and some 75 casual or temporary employees referred
by Labor temporaries. On May 16, 1988, at the usual time when the
promotional peak had subsided, Respondent returned to its earlier
established practice of laying off part-time employees and further,
permanently discharged 30 of them, but retained 10 other most senior
part-time employees whom it transferred from the discontinued third
shift to either the first or second shift as needed.
Counsel for the General Counsel, relying on the fact that Union staff
representative handed out pamphlets to employees in the parking lot
between 2:45 p.m. and 4:00 p.m. on May 16, the day of the permanent
lay-offs, points to suspicious timing, illogical asserted business
related reasons behind the action, and alleged other violations of
Section 8(a)(1) of the Act to support his case.
The record shows that on May 16, 1988, 4 or 5 Union business agents,
including secretary-treasurer Walter Lytle, distributed union pamphlets
at gates leading onto plant parking lots to about 50 employees arriving
there mainly in cars, from 2:45 p.m. to 4:00 p.m., at which point they
left and returned the following morning at 6 A.M. to again pass out
leaflets but departed after 1 hour, seeing only 1 or 2 employees.
Lytle testified the union agents were present in response to a phone
call from an unidentified employee.
A long line of witnesses for Respondent establish that Respondent
made the decision to discontinue the third shift heavily populated by
regular part-time employees to be permanently laid off, and took steps
to implement that decision before the start of the business agents'
activities and before Respondent had any knowledge of same.
Respondent employee witnesses Doris Loop, Doris Robart, Patricia
Berkey, Judith Brown, Susan Johnson and Danny Butler credibly described
discussions with specific Respondent officials between January and May
-- before May 16, during which they voiced concern about their shortages
in pay due to the 1987 retention of part-timers and forced sharing of
hours. Loop, Robart, Berkey and Brown specifically recall that
vice-president and general manager Robert Ellis told them on dates
between January and early May 1988, before May 16 in response to their
concerns, he intended to lay off third shift part-time employees at the
next slow period.
Ellis testified he reached the decision to lay off part-time
employees just before or after the start of 1988, although he testified
to firming up the matter on later occasions in the following months. As
for the date to implement the decision, Ellis testified to the date and
time of May 16, 1988 at 10:30 a.m. Counsel for the General Counsel
stresses that Ellis was unable to pinpoint precisely when he made the
decision but counsel merely blurs the distinction which should be noted
between when Ellis made the decision and when he decided to implement it
-- in either case -- as is well corroborated, both decisions clearly
occurred prior to the May 16 events beginning at 2:45 p.m.
Thus, production distribution and scheduler director Todd Wallin
credibly testified that after he read the inventory report of orders in
the morning of May 16, he concluded there was only enough baking
requirements to call for two shifts, that is, only 16 batches, whereas a
three shift operation typically called for 21-1/4 batches on the 120'
line oven and 18-1/2 batches on the 70' line oven. Respondent exhibit
15 supports Wallin's testimony and is consistent with Wallin's further
assertions that Ellis must have told him between 10:00 and 11:30 a.m.
May 16 not to schedule the third shift. Wallin further testified that
he had talked to Ellis the week before about cutting the third shift --
that they would schedule the Sunday third shift and await the tabulation
of orders on Monday morning when 50% of the orders arrive, and "go from
there." Further, Wallin recalled that he and Ellis had discussed in
January 1988 that when orders slowed down and there wasn't enough work
to keep the full time employees busy 5 days a week, the Company would go
back to the policy of cutting off third shift and keeping the full time
employees busy. Corroborating Ellis and Wallin, the first shift
supervisor, Glen Osterman candidly testified that Rob Ellis told him in
late 1987 early 1988 that unlike 1987 the Company would lay off
employees before working any more short weeks when the buy-one campaign
ended. Osterman testified that both Ellis and the its' plant manager,
Brian Haiflich told him a week before the lay-off occurred of it's
probability depending on the amount of orders received by then, Haiflich
instructing him to make the cut (of employees) and shift remaining
employees from one shift to the other, since Haiflich was to be out of
town that week. On the morning of May 16 Monday at 10:30 or 11:30 a.m.,
Osterman testified credibly in further corroboration of Ellis and Wallin
that Rob Ellis instructed him "to act accordingly" as they had discussed
the week before and that there would be not third shift that night.
Osterman began calling third shift employees as early as 1:00 p.m.
telling them not to report to work, his notes showing that an unreached
employee would return his call after 2:00 p.m. which is consistent with
his recollection as to when he placed the call -- as well as being well
before the first appearance of the business agents at 2:45 p.m. that
day.
Plant manager Brian Haiflich supports the earlier described
witnesses' accounts, and credibly testified that baking needs are
normally determined on a day to day basis so that if he was eliminating
a shift and moving people around he would be contacting them daily.
Counsel for the General Counsel aptly questioned why there was any
"magic" in the May 16 week which called for a lay-off given the fact
that in the previous week Respondent worked its employees a four day
week rather than eliminating the third shift. Haiflich testified
unhesitatingly that he assumed the layoff would occur on May 16 as he
had informed Osterman because that date signaled the end of the buy-one
promotional campaign influx of orders given established production
cycles. He said, "we didn't eliminate the third shift the week before
the 16th because we had no idea what follow-up orders were going to come
in, too uncertain . . . we didn't want to lay them off (part timers) too
soon and then get into overtime the following week."
Witnesses David Borton second shift foreman, Respondent's
secretary-treasurer, Brian Ellis, and Thomas Weinraub owner of the Labor
Temporaries further corroborate the Ellis and Haiflich's account,
Weinraub recalling that Haiflich called him the week before the 16th of
May because Weinraub had referred employees to Respondent earlier, and
telling him Respondent was eliminating the third shift, laying off the
employees and informing them by letter they would be given first
consideration for rehire.
I conclude from this that there are no grounds based upon the
coincidental timing between the lay-offs and the appearance of the union
representatives on May 16, 1988 which would warrant inferring any
unlawful discrimination.
Counsel for General Counsel alleges that the reasons advanced by
Respondent as the cause for its decision to eliminate third shift and
terminate part-time employees are pretextual in nature to hide the real
reason asserted by him to be the discouragement of union or protected
activities by the employees remaining after the layoffs -- a group
consisting of both full time employees and remaining part-time
employees.
Thus, counsel asserts that fund raising production to one customer
increased in 1988 to cast disbelief on Respondent's assertion that
declining production was a factor behind the May 16, 1988 layoffs; yet
counsel's own brief acknowledges that the figures for 1988 in April were
down by 408,773 units; and for 1988 May were down by 153,358 units
compared to the same months in 1987 a year wherein Respondent had
already experienced a sharp decline in production from what had been
projected earlier for that year. (p. 12) While counsel further notes
carefully that Respondent had occasionally discontinued the third shift
in 1987 when declines in production occurred, like those in 1988 without
a permanent layoff of part time workers as occurred in 1988, there are
factors which arose in 1988 that were not present in 1987.
Thus, the credited testimony by employees described above tends to
support another reason advanced as being -- together with declining
business needs -- a further concern of Respondent leading to the lay-off
decision, namely, that Robert Ellis had personally assured full time
employees identified above that there would be lay-offs in the 1988
declining production period rather than shortened hours for all full and
part-time employees alike. Since it would be reasonably expectable by
Ellis that this information communicated to employees late December
1987, early January 1988 and in addition in some instances more shortly
before May 16, 1988 would be quickly disseminated among all 50 or so
full time employees given its message of beneficial import to them, it
is readily apparent why Ellis would naturally look upon the
communications as constituting a commitment on Respondent's part to
follow through with the lay-offs as production needs required thereby
returning to its established manning practices prior to 1987.
In addition, Ellis testified to a further factor present in 1988 of
significant concern, Section 89 of the Tax Reform Act of 1986 which he
perceived as requiring Respondent's full time employees to pay taxes on
their fringe benefits in circumstances where part-time employees are not
paid them. While unsure of earlier period specific dates of his
knowledge of Section 89 other than in April 1988 when the importance of
Section 89 had been revealed to him at a business convention, it is
consistent with Ellis' testimony that Brian Haiflich testified to a
meeting with Flexible Services wherein Respondent sought to do away with
the part-time force by having that firm payroll the group, Respondent
thereby avoiding the adverse impact of Section 89 on full-time
employees. (R-34) Counsel for General Counsel examined Ellis on this
point in a thorough and probing manner. Ellis had testified that
Section 89 among other things had entered into it (the decision). Later
in the same questioning under 611-c where counsel was also allowed to
ask leading questions, he asked whether Ellis had relied on Section 89
and Ellis said he wasn't sure. Ellis had already testified that, ". . .
such things as Section 89 did enter into it." (the decision), and under
further questioning by Respondent counsel, Ellis testified that yes
Section 89 played a part in his decision about staffing. Given the
corroborating testimony of Respondent secretary treasurer Brian Ellis,
who testified that Section 89 -- or at least Respondent's perception of
what it was -- played a part or role in the decision, and Haiflich's
credited testimony as further supported by Respondent exhibit 34 a
letter from Flexible Services, Inc., proposing to payroll the part-time
force dated, January 18, 1988, I consider Ellis' response to Counsel's
611-c examination to fairly represent Ellis' interpretation of counsel's
question whether he relied on Section 89 to have been whether he relied
on it mainly or entirely so that the answer I'm not sure would still be
consistent with a finding, which I make, that Section 89 played some
role in Ellis decision-making, though to what extent is not entirely
clear.
I conclude from the foregoing that Respondent relied upon legitimate
business related reasons for deciding to eliminate the third shift and
terminating 30 of the 40 part-time employees. In reaching this
conclusion, I have considered the testimony of Ellis that sometime
around Christmas 1987 a management official told him that an employee ".
. . made a statement period, something about union and that's all I can
recall" stating later he guessed he had heard one employee contacted a
union person in December 1987, as well as testimony by a part-time
employee Tammy Gruesbeck that a second shift foreman Jim Hathaway went
to her at clean up time around December 1987 or early 1988 January and
said ". . . was (sic) a possibility of a union drive," and, "Don't say
anything as there was nothing definite." Gruesbeck placed co-employee
Sue Johnson with her at the time. Hathaway was not called to testify
and Johnson was not asked by counsel about the alleged comment. None of
this testimony in my view probatively establishes either union or
concerted activities by any Ellison employee or that Respondent knew of
or even suspected any such conduct, and there is no probative evidence
whatsoever of any such conduct in the record occurring prior to the
lay-offs. I have also considered, as advanced by General Counsel that
third shift foreman Terry Lesh was not notified prior to the layoff and
indeed reported to work the evening of May 16. Lesh clocked out and
asked for 4 hours pay indicating on his time card he hadn't been
notified, but a notation on the card states "no, he could have stayed."
Osterman testified without contradiction that he does not contact Lesh
because he, Lesh is not basically a production employee but rather a
maintenance supervisor who works on the third shift even when there is
no baking going on performing preventive maintenance.
Part-time cookie packer employee Carol McBride testified that
sometime in January, she was in a plant break room with "quite a few
other people" she was unable to identify when somehow ". . . union got
brought up. And Rob (Ellis) made the statement, something about I'll
never have a union here. I'll shut the doors first. That's all that
was said. But I don't know, like I said, what it was to (sic) because
we were surrounded. There was nothing serious being said." On
cross-examination McBride said, "Right. But when we were in there
talking, we were just talking BS stuff. You know, I never made any
connection with anything, you know. I never took it serious. And I
don't think he did either . . ." McBride admitted that in her affidavit
to the Board Agent in June 1988 she stated, "Rob Ellis was there. I
don't recall what we were talking about, but I recall Ellis saying that
no union would ever be in there." She then told counsel who asked her if
that is what she remembered saying that, "Like I said, we were talking.
We were just horsing around. And there was nothing serious said on
anything," admitting that the words referring to Ellis saying he would
shut the doors down were not contained in her affidavit and that she did
not ask the agent about it because she thought it was in there. I found
McBride an unpersuasive witness whose defensive vacillations on the
witness stand left me unconvinced about her reliability. The sharp
variance between her uncorroborated disjointed and jittery account on
the stand without a single witness corroboration or identification from
"quite a few other people" present much longer after the reported event
than was her account in the June 1988 affidavit adds to my reluctance
towards crediting her version of events and I do not do so.
Combined with the foregoing, it is highly dubious that Respondent
would take the draconian measure of permanently discharging 30 employees
from the ranks of part-timers from which it drew the full-timers, the
life-blood of Respondent's work force for the highly speculative mere
hope that such action would be perceived as a benefit by full-time
employees such as would discourage them from engaging in protected union
or concerted activities, especially since the record contains no
evidence that any of the full-timers had ever been so interested or so
engaged at any time material herein. Moreover, the Respondent had
already informed the full-timers of the return to lay-offs and past
practice followed for many years, so that the shift discontinuance on
May 16 was likely more akin in their eyes to a non-event than bearing
coercive gift-like qualities.
In a speech to employees on May 19, 1988, Respondent president
William Ellis addressed employees as follows:
I have just returned from the National Archway Production
Meeting to learn that a labor union is once again attempting to
have our employees join it's ranks. One purpose of the meeting
was to further my own personal commitment to do everything
possible to increase the business of the bakery that provides work
and income for all of us at a time when competition in our
industry is high and business is down. This is a personal
obligation felt not only by me but all the owners of Ellison
Bakery, Inc.
I have already opposed having a union in our plant because it
not only threatened our security, but our very livelihood.
Because I am convinced, and because I see from experience in the
rest of the Baking Industry, that the unions are a force for
confrontation, and work stoppages, I promise you that I will do
everything legitimately possible to see that no union ever does
gain a foothold into this bakery.
By working together for the past 38 years we have succeeded in
providing jobs and job security for all of us. During this same
period of time, hundreds of thousands of unionized employees, some
of whom were earning wages far in excess of those we can afford to
pay, have lost their jobs and their companies have either gone
bankrupt or have been sold to large corporations where profits
come first, and the security of workers and family members mean
little or nothing.
I have seen the harm and the tragedy that follows in the path
of unionization. I promise I will not permit a terrible thing
like this to take place in our bakery, we have come too far and
worked too hard just to have a third party come in now and dictate
what we can and cannot do. I therefore ask you to turn away from
the union organizers who pretend to have a concern for you but
whose only real concern is taking money from your paycheck to
support union chiefs and their union structure. I ask you not to
sign those union cards that often leads to plant closings and loss
of jobs. If you have already signed one, you should know that you
have the legal right to demand it's return.
I pray that we may continue to work together as a team and as a
family helping each other, as we have in the past.
In his address, Ellis referred to specific effects of unionization
that might cause Respondent to become unprofitable, such as work
stoppages and higher wages with the possible result that a loss of jobs
could result from unionization. He also mentions that unions can be a
force for confrontation and may initiate attempts to dictate what
Respondent can and cannot do, further raising incidents of, as he
perceived it, bankruptcy or sales of companies to larger concerns whose
management is more distant from employees than is Ellis. These are
objective facts on which his speech raises the disadvantageous
possibilities that can or often flow from unionization, rather than
simply equating unionization with loss of jobs. He promises to do ". .
. everything legitimately possible to (avoid unionization) . . .", but
nowhere is there, in my view, . . . a reminder that Respondent might
decide to sacrifice their (employee) jobs in the event of unionization."
Compare, White plains Lincoln Mercury, Inc., 288 NLRB 1133, p. 1135.
There being no threat of reprisal in the Ellis speech I find it
protected by Section 8(c) of the Act and consequently not a violation of
Section 8(a)(1) as alleged in the complaint. Compare, National
Micronetics, Inc., 277 NLRB 993, 995.
To support remaining complaint allegations, Counsel for General
Counsel called part-timer Sheri Billman to the stand. It should first
be noted that Respondent, by letter mailed to laid off employees dated,
May 18, 1988 had informed them to contact Labor Temporary, Inc., if they
wish to be considered for reemployment when demand for the Respondent's
production increased. (R-4) On May 20 Billman together with her former
co-employees Carole McBride, Tammy Gruesbeck and Laura Dahlgren handed
out union cards, buttons, and pamphlets at the plant, in plain view of
Respondent representatives, one of whom, David Barton, second shift
foreman told them he respected them for what they were doing but not to
stand within telephone pole lines located on Company property. Billman
returned to work via referral by Labor Temporary, Inc., shortly
thereafter on June 6, 1988. She claims nonetheless however, that
between the date of the handbilling described above on May 20 and her
return to work thanks to the referral by Labor Temporary, Inc., she had
a phone conversation with that firm's "spokesman" owner Thomas Weinraub,
pursuant to a suggestion that Billman make the call. Billman claims
Weinraub said he had been specifically told by Brian Haiflich, plant
manager ". . . that any of us girls who was out there handing out those
handbills was not to be out there at the Company (sic) was not allowed
to be coming out there working." Further, she states that during a
"later call with him, he referred me out to the Company saying that the
last time he talk (sic) to Brian Haiflich he didn't say anything
regarding our not going out."
Upon her return to work on June 6, Billman further claims as follows:
"Dave Barton came to me and said he couldn't believe I was one of them
people out there in that union stuff out front that was involved in
that. He said he lost a lot of good people because of it." Billman then
went on to say that Barton asked her if she had had anything to do with
any of those union meetings, or whatever, ". . . which I didn't even
know really what he was talking about. I did say I didn't know anything
about it, because I never got involved in that stuff, which I never
did." (emphasis supplied)
In order to conclude that any of the foregoing events actually
occurred, I have to credit Billman's accounts over the testimony by way
of denials elicited from Weinraub and Barton and this cannot be done for
several reasons. No reasonable basis is present to explain why Weinraub
in an out of the blue fashion would divulge to Billman that Respondent
manager Haiflich did not want her or the other three employee
handbillers of May 20 referred to work only to turn around and refer
both Billman and Carole McBride also a handbiller to work for Respondent
shortly afterward. The likelihood is compelling that had Weinraub
indeed said this, that Billman would have passed on such significant,
unsettling and newsworthy information to the three other employees
involved in the handbilling, yet no such testimony, a vital element
supportive of the complaint was elicited from any one of them at this
hearing. Weinraub would hardly place a long term profitable business
relationship with Respondent in peril by such a disclosure and both he
and Haiflich deny there was any effort or instructions for any selective
screening; in fact Weinraub understood he was to give all of the
laid-off employees first priority.
On June 6, the date Billman described her alleged conversation with
Barton described above, which he denies, Billman insisted that shift
supervisor Glen Osterman was present in the plant and that she saw him
during her testimony herein, even after being shown Osterman's time card
showing he was on vacation for the week ending June 11, saying, "no, but
he was there that day." Billman insisted a second time in further
testimony that Osterman was present on this point. Osterman testified
he had left for a vacation in Minnesota on the 4th or 5th of June and
after about 10 or 12 hours canoeing, was injured and admitted to a
hospital for treatment on June 7, producing a hospital bill so dated for
treatment there in Ely, Minnesota. R-19. Billman's account is denied
by Barton who said he never spoke to Billman after the May 20 occasion
described above, or saw her afterward in the plant. The two were on
different shifts, and it is uncontroverted that on the day Billman
describes her conversation with Barton as occurring, his time card shows
he clocked in at 2:20 p.m. while Billman had already clocked out at
12:30 p.m. Since Billman left work on June 6 after only working about a
half day it is fair to say she was not merely "mistaken" about the date
of events she described.
Finally, I note further the remarkable fact that during her
testimony, Billman, after describing her activity passing out union
cards, union buttons and pamphlets on May 20, flatly denied later in
examination, regarding the June 6 alleged discussion with Barton
engaging in any union activity, stating, ". . . because I never got
involved in that (union) stuff, which I never did." I find no probative
value in any of Billman's account for the reasons described.
I conclude and find that Respondent did not violate Sections 8(a)(1)
and (3) as alleged in the complaint.
On these findings of fact and conclusions of law and on the entire
record, I issue the following recommended: /1/
The Complaint is dismissed.
Dated, Washington, D.C. December 11, 1990
Harold Bernard, Jr.
Administrative Law Judge
/1/ If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived
for all purposes.
304 NLRB No. 149
ELLISON BAKERY, INC. and TEAMSTERS LOCAL UNION NO. 414, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, AFL-CIO
Case 25-CA-19313
D-2297
Ft. Wayne, IN
On September 27, 1991, the National Labor Relations Board issued a
Decision and Order in the above-captioned case.
Please substitute the attached JD (120-91) for the one inadvertently
attached to the decision.
Dated: October 3, 1991
ELLISON BAKERY, INC. and TEAMSTERS LOCAL UNION NO. 414, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL-CIO
Case 25-CA-19313
HAROLD BERNARD, JR., Administrative Law Judge: I issued the Decision
in the underlying case on December 11, 1990, dismissing the complaint in
its entirety, /1/ and in the absence of exceptions being filed thereto,
the Board adopted my findings and conclusions. Respondent in said
proceeding here makes application for an award of attorney fees and
other expenses pursuant to the Equal Access to Justice Act, Pub. L
96-481, 94 Stat. 235 and Section 102.143 of the Board's Rules and
Regulations, having filed said application on March 8, 1991, contending
that substantial justification did not exist for issuing the complaint
or for its continuing prosecution, that there was no reasonable basis of
law and fact in the General Counsel's position.
By memorandum dated April 10, 1991, Counsel for General Counsel filed
a position in opposition to this application, denying said allegations
and also arguing that any hourly charges in excess of $75.00 per hour
are not reasonable.
As I find, for reasons noted below, that the General Counsel was
substantially justified in issuing the complaint and in its continuing
prosecution, it is unnecessary to address any fee computation method
issue. Iowa Parcel Service, Inc., 266 NLRB 392, 395 n. 11.
A major issue was whether Respondent had terminated 30 employees for
engaging in union activities and in order to benefit full-time employees
and thereby discourage them from supporting the Union. A central factor
in General Counsel's case was that on the very afternoon that union
organizers first appeared handbilling plant employees, Respondent
terminated the 30 employees as alleged in the complaint. Together with
Respondent advanced reasons deemed inconclusive by General Counsel, and
reasonably so, this action raised the not unreasonable view that,
together with other reports of Respondent knowledge concerning union
activities by employees, the timing for the terminations was suspicious,
especially given the large scale of terminations involved and a
reasonable view that other options for their timing were not necessarily
prohibitive for Respondent on the basis of changing company policy based
upon admitted dynamics in Respondent's business. Further, a key piece
of evidence did not, according to General Counsel, emerge until late in
the hearing, that being the handwritten notes of first shift supervisor
Glen Osterman tending to show he began calling off a third shift
employee before the union handbilling started. Even so, General Counsel
could not know at that stage (and certainly not in the pre-complaint
stage) how his thoroughgoing cross-examination into Respondent's many
witnesses on the point had been received by me, or what weight I would
be willing to attach to this evidence -- which in fact was substantial
as it later turned out in my analysis. I have no doubt whatsoever that
it was not until all the facts had emerged, been expertly marshalled by
counsel and the parties' positions analyzed in depth that only then
could a reasoned decision be reached on the basis of a myriad of
factors, including inferences, credibility resolutions, and legal
analysis only made possible by a complete record and the litigation
process.
A second issue centered on Respondent's letter to employees dated May
19, 1988, in which could fairly be read a possible threat of plant
closure and employee discharge because in it Respondent's president
observed that in a unionized setting jobs have been lost and companies
closed. In White Plains Lincoln Mercury, Inc., 288 NLRB 1133 (1988),
the Board carefully drew a distinction between an employer's
hypothetical observation in a letter of a plant closing if a union made
excessive bargaining demands which suggested such action only if the
employer were forced into it for reasons outside its control which the
Board found lawful, and a second type of letter wherein unionization was
equated outright with unprofitability resulting in a plant closure. The
second letter was deemed an unlawfully coercive threat in the course of
an intense anti-union campaign. The question before me as to which
category the Respondent's May 19, 1988 letter to employees fell into
clearly involved a close question of fact and law and it cannot be said
that the General Counsel was not substantially justified in the choice
he made to include this allegation in the complaint.
Suffice it to say that it was not until the decision-making stage
that I decided against the General Counsel's remaining allegations of
unlawful interrogation and alleged unlawful attribution of employee
discharge to their union activities by Respondent based upon credibility
resolutions guided by the results arising from the crucible of
penetrating examination under oath on the witness stand and after
consideration of counsels' valuable insights on brief. Prior thereto,
the witnesses' testimony during General Counsel's case in chief stood
for what was alleged in the complaint, and supplied the necessary
substantial justification.
Under EAJA, an award of attorney fees and other expenses shall be
made to a prevailing party unless "the position of the agency as a party
to the proceeding was substantially justified or . . . special
circumstances make an award unjust." /2/ Whether or not the government's
action was "substantially justified" is accessed in terms of
reasonableness. As expressed by Congress and the United States Supreme
Court:
The test of whether or not a government action is substantially
justified is essentially one of reasonableness. Where the
government can show that its case had a reasonable basis both in
law and fact, no award will be made. /3/
While the burden of establishing substantial justification is on the
government, the fact that it lost its case does not give rise to any
presumption that it acted unreasonably nor must the General Counsel
establish a prima facie case as a prerequisite to finding that its
position was reasonable in law and fact. /4/
To these principles it should be added that the General Counsel is
entitled to resolve conflicting inferences, and this case presented
facts from which many possible and differing inferences could be drawn,
in favor of the violation alleged. /5/ I find the complaint and its
prosecution alike reasonably based in fact and law and substantially
justified. Accordingly, I issue the following recommended:
The application of Ellison Bakery, Inc. for an award under the Equal
Access to Justice Act is denied.
Dated, Washington, D.C. May 3, 1990
/1/ JD-289-90.
/2/ EAJA, Section 504 (a)(1).
/3/ S. REP. No. 96-253, 96th Cong. 1st SESS. at 6 (1979); H. REP.
No. 96-1418, 96th Cong., 2nd SESS. at 10 (1980), and Pierce v.
Underwood, 487 U.S. 522 (1988).
/4/ Enerhaul, Inc., 263 NLRB 890, n. 3 (1982); Iowa Parcel Service
Inc., supra.
/5/ Westerman, Inc., 266 NLRB 392 (1983), enf'd. 749 F.2d 14 (6th
Cir. 1984), and Iowa Parcel Service, In., supra.
304 NLRB No. 148
GEORGE KIM d/b/a KOREAN MAINTENANCE CO. and NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES (AFL-CIO/SEIU)
Case 31-CA-18678
D-2296
Los Angeles, CA
Upon a charge filed by the Union on February 26, 1991, the General
Counsel of the National Labor Relations Board issued a complaint on
April 10, 1991, against George Kim d/b/a Korean Maintenance Co., the
Respondent, alleging that it has violated Section 8(a)(3) and (1) of the
National Labor Relations Act. Although properly served copies of the
charge and complaint, the Respondent failed to file a timely answer.
On June 4, 1991, the General Counsel filed a Motion to Transfer Case
to and Continue Proceedings Before the Board and for Summary Judgment,
with exhibits attached. On June 10, 1991, the Board issued an order
transferring the proceeding to the Board and a Notice to Show Cause why
the motion should not be granted. On June 21, 1991, the Respondent
filed an answer to the complaint and response to the Notice to Show
Cause.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
Section 102.20 of the Board's Rules and Regulations provides that the
allegations in the complaint shall be deemed admitted if an answer is
not filed within 14 days from service of the complaint, unless good
cause is shown. The complaint states that unless an answer is filed
within 14 days of service, "all of the allegations in the Complaint
shall be deemed to be admitted to be true and may be so found by the
Board." In addition, the undisputed allegations and documentary evidence
in support of the Motion for Summary Judgment disclose that counsel for
the General Counsel, by letter dated April 26, 1991, notified the
Respondent that the deadline for filing an answer to complaint had
expired and that a Motion for Summary Judgment would be filed unless an
answer was received by May 3, 1991. Another letter, dated April 29,
1991, from counsel for the General Counsel to the Respondent referred to
a telephone conversation on that date with George Kim, the Respondent's
owner. This letter included a copy of the complaint and concluded with
the following statement:
Per your request, I shall grant you a two-week extension of
time to file an Answer to the Complaint, until the close of
business Monday, May 13, 1991. If we do not receive your Answer
by that time, I intend to file the Motion for Summary Judgment
referred to in my letter of April 26, 1991, which letter you
stated prompted your telephone call. (Emphasis in original.)
As previously indicated, the Respondent made no attempt to answer the
complaint until June 24, 1991, after receipt of the Notice to Show
Cause. The purported answer filed then summarily states: "The Employer
denies all of the allegations contained in the complaint herein and each
subsection and subparagraph thereof." In the accompanying response to
the Notice to Show Cause, counsel for the Respondent contends that Kim
"is a Korean foreign national with a limited cursory understanding of
the English language, American jurisprudence and more particularly Board
proceedings." The response further maintains that all communications
between the Board and the Respondent have been in English, so that Kim
"was unable to understand the scope and content of the . . .
correspondence."
We find no merit in the Respondent's contentions. Prior to the
filing of the Motion for Summary Judgment, the Respondent received at
least two copies of the complaint and two letters from counsel for the
General Counsel which clearly and specifically stated the obligation to
file a timely answer and the consequences of failing to do so. In
addition, counsel for the General Counsel's April 29, 1991 letter shows
that Kim had sufficient comprehension of the import of this
correspondence to request an extension of time in order to file an
answer. If Kim truly was incapable of preparing an answer to the
complaint, the additional 2-week extension of time granted pursuant to
his request afforded him a sufficient opportunity to engage the services
of counsel to assist him. Nevertheless, no attempt was made to file an
answer until June 21, 1991, 7 weeks after the extended filing deadline.
Under these circumstances, we find that the Respondent has failed to
show good cause for its failure to file a timely answer, and we reject
its untimely answer.
In the absence of good cause being shown for the failure to file a
timely answer we grant the General Counsel's Motion for Summary
Judgment.
On the entire record, the Board makes the following
The Respondent is a sole proprietorship engaged in business as a
janitorial maintenance contractor. Its principal place of business is
in Los Angeles, California. In the course and conduct of its
operations, the Respondent annually purchases and receives goods or
services valued in excess of $50,000 directly from sellers or suppliers
within the State of California. These sellers or suppliers received
goods in substantially the same form directly from outside the State of
California. We find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act and that
the Union is a labor organization within the meaning of Section 2(5) of
the Act.
About January 11, 1991, the Respondent's owner Kim engaged in certain
activity at the U.S. Navy Construction Center at Port Hueneme,
California. Specifically, Kim interrogated an employee concerning his
general measure of support for the Union and he asked an employee
whether he would vote for or against union representation in a Board
election to be conducted on January 16, 1991. We find that these acts
of interrogation violated Section 8(a)(1).
Also on January 11, 1991, the Respondent discharged James Leivas.
Since then, it has failed and refused to reinstate Leivas to his former
job. The Respondent has engaged in this conduct because Leivas joined
or assisted the Union or engaged in other protected concerted activities
for the purpose of collective bargaining or other mutual aid or
protection. We find that the discharge and refusal to reinstate Leivas
violated Section 8(a)(3) and (1).
1. By interrogating employees about their support for the Union and
how they intended to vote in a Board representation election, the
Respondent has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
2. By discharging and refusing to reinstate employee James Leivas
because he joined or assisted the Union or engaged in other protected
concerted activities, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(3) and
(1) and Section 2(6) and (7) of the Act.
Having found that the Respondent has engaged in certain unfair labor
practices, we shall order it to cease and desist and to take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has unlawfully discharged and
refused to reinstate James Leivas, we shall order the Respondent to
offer Leivas immediate and full reinstatement to his former position,
or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority and other rights and
privileges previously enjoyed, and to make him whole for any loss of
earnings that he may have suffered as a result of the Respondent's
unlawful conduct. Backpay shall be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be
computed in the manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
The National Labor Relations Board orders that the Respondent, George
Kim d/b/a Korean Maintenance Co., Los Angeles, California, his officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities and
how they intend to vote in a Board representation election.
(b) Discharging and refusing to reinstate employees because
they join or assist a union or engage in other protected concerted
activities.
(c) 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) Offer James Leivas immediate and full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed, and make him whole
for any loss of earnings and other benefits he may have suffered
in the manner set forth in the remedy section of this decision.
(b) Remove from his files any reference to the unlawful
discharge and notify Leivas in writing that this has been done and
that the discharge will not be used against him in any way.
(c) Preserve and, on request, make available to the Board or
its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records and
reports, and all other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at his facility in Los Angeles, California, copies of
the attached notice marked "Appendix." /1/ Copies of the notice,
on forms provided by the Acting Regional Director for Region 31,
after being signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(e) Notify the Acting Regional Director in writing within 20
days from the date of this Order what steps the Respondent has
taken to comply.
Dated, Washington, D.C. September 27, 1991
James M. Stephens, Chairman
Dennis M. Devaney, Member
John N. Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
(SEAL)
The National Labor Relations Board has found that I violated the
National Labor Relations Act and has ordered me to post and abide by
this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own
choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted
activities.
I WILL NOT interrogate employees about their union activities and how
they intend to vote in a Board election.
I WILL NOT discharge employees for engaging in union or other
protected concerted activity.
I 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.
I WILL offer James Leivas immediate reinstatement to his former job
or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or
privileges previously enjoyed, and I WILL make him whole, with interest,
for any loss of earnings he may have suffered by reason of his unlawful
discharge.
I WILL notify James Leivas that I have removed from my files any
reference to his discharge and that the discharge will not be used
against him in any way.
GEORGE KIM d/b/a KOREAN
MAINTENANCE CO.
(Employer)
Dated . . . By (Representative) (Title)
This is an official notice and must not be defaced by anyone.
This notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material. Any questions concerning this notice or compliance with its
provisions may be directed to the Board's Office, 11000 Wilshire
Boulevard, Room 12100, Los Angeles, California 90024-3682, Telephone
213-575-7357.
/1/ If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading "POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD" shall read "POSTED PURSUANT TO A
JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD."
304 NLRB No. 147
MAURY HORTON, JR., d/b/a REFRIGERATED AIR SERVICES and JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY, U.A. LOCAL 319
Case 33-CA-9402
D-2295
Oswego, IL
Upon a charge filed by Journeymen and Apprentices of the Plumbing and
Pipefitting Industry, U.A. Local 319, the Union, March 28, 1991, /1/ and
amended May 9, the General Counsel of the National Labor Relations Board
issued a complaint /2/ against Maury Horton, Jr., d/b/a Refrigerated Air
Services, the Respondent, alleging that it has violated Section 8(a)(5)
and (1) of the National Labor Relations Act. Although properly served
copies of the charge, amended charge, complaint, and amendment to the
complaint, the Respondent has failed to file an answer.
On July 18, the General Counsel filed a Motion for Summary Judgment.
On July 22, the Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion should not be granted.
The Respondent filed no response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
Section 102.20 of the Board's Rules and Regulations provides that the
allegations in the complaint shall be deemed admitted if an answer is
not filed within 14 days from service of the complaint, unless good
cause is shown. The complaint states that unless an answer is filed
within 14 days of service, "all of the allegations in said Complaint
shall be deemed to be admitted true and may be so found by the Board."
In the absence of good cause being shown for the failure to file a
timely answer, we grant the General Counsel's Motion for Summary
Judgment.
On the entire record, the Board makes the following
The Respondent, a sole proprietor with an office and place of
business in Oswego, Illinois, is engaged in the installation and repair
of commercial refrigeration equipment. During the 12-month period
preceding issuance of the complaint herein, the Respondent provided
goods and services valued in excess of $50,000 to Aldi Foods, an
enterprise located within the State of Illinois which annually purchases
and causes to be transported to its facilities within the State of
Illinois goods valued in excess of $50,000, directly from points located
outside the State of Illinois. We find that the Respondent is an
employer engaged in commerce within the meaning of Section 2(6) and (7)
of the Act and that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
Since about June 4, 1990, and at all times material, the Respondent
has recognized the Union as the collective-bargaining representative of
the employees in the bargaining unit described below and, since that
date, such recognition has been embodied in a collective-bargaining
agreement executed by the Respondent and the Union and effective by its
terms until May 31, 1991. The following employees of the Respondent
constitute a unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All journeymen and apprentice employees performing work within the
craft and geographic jurisdiction of the Union; but excluding all
supervisors, clericals and other employees.
At all times material, the Union, by virtue of Section 8(f) of the Act,
has been and is the limited exclusive representative of the unit
employees for purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and conditions of
employment. See John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. 843
F.2d 770 (3d Cir. 1988).
Since about October 1, 1990, and continuously thereafter, the
Respondent has failed and refused to make contractually required
contributions to fringe benefit funds for health, welfare and pension;
failed and refused to remit to the Union dues, fees, and working
assessments, including but not limited to a building fund assessment, as
required by the collective-bargaining agreement; repudiated the
collective-bargaining agreement; and repudiated its
collective-bargaining relationship with the Union and withdrawn
recognition from the Union during the term of the collective-bargaining
agreement. By these acts, the Respondent has failed and refused, and is
failing and refusing, to bargain in good faith with its employees'
representative, the Union, in violation of Section 8(a)(5) and (1) of
the Act.
By failing and refusing to continue in full force and effect all the
terms of its collective-bargaining agreement with the Union, by failing
and refusing to make contractually required contributions to fringe
benefit funds for health, welfare and pension; by failing and refusing
to remit to the Union dues, fees, and working assessments, including but
not limited to a building fund assessment, as required by the
collective-bargaining agreement; by repudiating its
collective-bargaining agreement with the Union; and by repudiating its
collective-bargaining relationship with the Union and by withdrawing
recognition from the Union during the term of the collective-bargaining
agreement, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.
Having found that the Respondent has engaged in certain unfair labor
practices, we shall order it to cease and desist and to take certain
affirmative action designed to effectuate the policies of the Act.
We shall order that the Respondent make the fringe benefit fund
contributions as required by the collective-bargaining agreement for the
period from October 1, 1990, through May 31, 1991, with any additional
amounts computed as provided in Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979). The Respondent shall also reimburse its employees
for any expenses ensuing from its unlawful failure to pay such amounts,
as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981), with interest as provided in
New Horizons for the Retarded, 283 NLRB 1173 (1987). Further, the
Respondent shall remit to the Union all dues, fees, and working
assessments, including but not limited to the building fund assessment,
for the period from October 1, 1990, through May 31, 1991, as set forth
in the collective-bargaining agreement, with interest as provided in New
Horizons, supra. The Respondent shall make whole all unit employees for
any loss of wages and other benefits resulting from the Respondent's
repudiation of the collective-bargaining agreement with the Union and
from its withdrawal of recognition during the contract's term, with
interest as provided in New Horizons, supra. In accordance with
Deklewa, supra, we shall not extend this make-whole remedy beyond the
May 31, 1991 expiration date of the collective-bargaining agreement.
The National Labor Relations Board orders that the Respondent, Maury
Horton, Jr., d/b/a Refrigerated Air Services, Oswego, Illinois, his
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively with
Journeymen and Apprentices of the Plumbing and Pipefitting
Industry, U.A. Local 319, as the limited exclusive representative
of the employees in the bargaining unit and failing to continue in
full force and effect all the terms of its collective-bargaining
agreement with the Union, by failing and refusing to make
contractually required contributions to fringe benefit funds for
health, welfare and pension.
(b) Failing and refusing to bargain collectively with the Union
as the limited exclusive representative of the employees in the
bargaining unit and failing to continue in full force and effect
all the terms of its collective-bargaining agreement with the
Union, by failing and refusing to remit to the Union dues, fees,
and working assessments, including but not limited to a building
fund assessment, as required by the collective-bargaining
agreement.
(c) Failing and refusing to bargain collectively with the Union
as the limited exclusive representative of the employees in the
bargaining unit and failing to continue in full force and effect
all the terms of its collective-bargaining agreement with the
Union, by repudiating its collective-bargaining agreement with the
Union.
(d) Failing and refusing to bargain collectively with the Union
as the limited exclusive representative of the employees in the
bargaining unit and failing to continue in full force and effect
all the terms of its collective-bargaining agreement with the
Union, by repudiating its collective-bargaining relationship with
the Union and withdrawing recognition from the Union during the
term of the collective-bargaining agreement.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make the contributions to fringe benefit funds for health,
welfare and pension, as required by the collective-bargaining
agreement covering the employees in the bargaining unit described
below, in the manner set forth in the remedy section of this
decision:
All journeymen and apprentice employees performing work within
the craft and geographic jurisdiction of the Union; but excluding
all supervisors, clericals and other employees.
(b) Make whole the unit employees for any losses resulting from
the Respondent's failure to contribute to fringe benefit funds for
health, welfare and pension, as required by the agreement in the
manner set forth in the remedy section of this decision.
(c) Remit to the Union dues, fees, and working assessments,
including but not limited to a building fund assessment, as
required by the collective-bargaining agreement in the manner set
forth in the remedy section of this decision.
(d) Make whole the unit employees for any losses resulting from
the Respondent's repudiation of the collective-bargaining
agreement and from the Respondent's withdrawal of recognition from
the Union during the agreement's term, in the manner set forth in
the remedy section of this decision.
(e) Preserve and, on request, make available to the Board or
its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records and
reports, and all other records necessary to analyze the amount of
backpay due under the terms of this Order.
(f) Post at its facility in Oswego, Illinois, copies of the
attached notice marked "Appendix." /3/ Copies of the notice, on
forms provided by the Regional Director for Region 33, after being
signed by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days from
the date of this Order what steps the Respondent has taken to
comply.
Dated, Washington, D.C. September 30, 1991
James M. Stephens, Chairman
Dennis M. Devaney, Member
Clifford R. Oviatt, Jr., Member
NATIONAL LABOR RELATIONS BOARD
(SEAL)
The National Labor Relations Board has found that I violated the
National Labor Relations Act and has ordered me to post and abide by
this notice.
I WILL NOT fail or refuse to bargain collectively with Journeymen and
Apprentices of the Plumbing and Pipefitting Industry, U.A. Local 319, as
the limited exclusive representative of my employees in the bargaining
unit and I WILL NOT fail to continue in full force and effect all the
terms of my collective-bargaining agreement with the Union, by failing
and refusing to make contractually required contributions to fringe
benefit funds for health, welfare and pension.
I WILL NOT fail or refuse to bargain collectively with the Union as
the limited exclusive representative of my employees in the bargaining
unit and I WILL NOT fail to continue in full force and effect all the
terms of my collective-bargaining agreement with the Union, by failing
and refusing to remit to the Union dues, fees, and working assessments,
including but not limited to a building fund assessment, as required by
the collective-bargaining agreement.
I WILL NOT fail or refuse to bargain collectively with the Union as
the limited exclusive representative of my employees in the bargaining
unit and I WILL NOT fail to continue in full force and effect all the
terms of my collective-bargaining agreement with the Union, by
repudiating my collective-bargaining agreement with the Union.
I WILL NOT fail or refuse to bargain collectively with the Union as
the limited exclusive representative of my employees in the bargaining
unit and I WILL NOT fail to continue in full force and effect all the
terms of my collective-bargaining agreement with the Union, by
repudiating my collective-bargaining relationship with the Union and by
withdrawing recognition from the Union during the term of the
collective-bargaining agreement.
I 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.
I WILL make the contributions to fringe benefit funds for health,
welfare and pension, as required by the collective-bargaining agreement
covering my employees in the bargaining unit described below, with
interest:
All journeymen and apprentice employees performing work within the
craft and geographic jurisdiction of the Union; but excluding all
supervisors, clericals and other employees.
I WILL make whole unit employees for any losses resulting from my
failure to contribute to fringe benefit funds for health, welfare and
pension, with interest, and I WILL make whole unit employees for any
losses resulting from my repudiation of the collective-bargaining
agreement and from my withdrawal of recognition during the agreement's
term, with interest.
I WILL remit to the Union dues, fees, and working assessments,
including but not limited to a building fund assessment, as required by
the collective-bargaining agreement, with interest.
MAURY HORTON, JR., d/b/a
REFRIGERATED AIR SERVICES
(Employer)
Dated . . . By (Representative) (Title)
This is an official notice and must not be defaced by anyone.
This notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material. Any questions concerning this notice or compliance with its
provisions may be directed to the Board's Office, 411 Hamilton
Boulevard, 16th Floor, Peoria, Illinois 61602-1104, Telephone
309-671-7068.
/1/ All dates hereafter are in 1991, unless specified otherwise.
/2/ The complaint was subsequently amended to include a reference to
the May 9, 1991 amended charge.
/3/ If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading "POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD" shall read "POSTED PURSUANT TO A
JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD."
304 NLRB No. 146
MARTIN E. KELLER ROOFING CO., AND ITS ALTER EGO, KELCO ROOFING, INC.
and ROOFERS LOCAL UNION NO. 241, UNITED UNION OF ROOFERS, WATERPROOFERS
AND ALLIED WORKERS, AFL-CIO
Case 3-CA-15052
D-2294
Schenectady, NY
On February 26, 1990, the National Labor Relations Board issued a
Decision and Order, /1/ inter alia, ordering the Respondent to remit
contractually required working assessment contributions to union funds
pursuant to the applicable collective-bargaining agreement. On December
5, 1990, /2/ the United States Court of Appeals for the Second Circuit
enforced the Board's Order in its entirety. /3/
A controversy having arisen over the amount of contributions due, on
March 28, 1991, the Regional Director for Region 3 issued a compliance
specification and notice of hearing.
In a letter dated April 25, 1991, the Regional Director for Region 3
notified the Respondent that he had not received an answer to the
compliance specification and notice of hearing and that, unless an
answer was received by the close of business on May 3, 1991, summary
judgment would be sought. The Respondent failed to file an answer to
the compliance specification by that date.
On May 13, 1991, the General Counsel filed with the Board a motion to
transfer the case and to continue proceeding before the Board and for
summary judgment and issuance of a Decision and Order, with exhibits
attached, dated May 9, 1991. On May 10, 1991, the Regional Office
received a communication, dated May 7, 1991, from Respondent Martin E.
Keller Roofing Co., /4/ which, although not entitled an "answer,"
contained general denials to the compliance specification.
On May 17, 1991, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause why the motion should
not be granted. The Respondent filed no response.
On May 28, 1991, the General Counsel filed with the Board a "Motion
to Revoke Notice to Show Cause and Supplement to Motion to Transfer Case
and to Continue Proceeding Before the Board and for Summary Judgment and
Issuance of a Decision and Order." In his motion, the General Counsel
requests that the Board reject the Respondent's communication as being
an untimely answer, and therefore find that the allegations in the
compliance specification are deemed to be admitted to be true. The
General Counsel also contends that if the Respondent's communication was
timely, it would nevertheless constitute an insufficient answer to the
compliance specification.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
Section 102.56(a) of the Board's Rules and Regulations provides that
the Respondent shall file an answer within 21 days from service of a
compliance specification. Section 102.56(c) of the Board's Rules and
Regulations states:
If the respondent fails to file any answer to the specification
within the time prescribed by this section, the Board may, either
with or without taking evidence in support of the allegations of
the specification and without further notice to the respondent,
find the specification to be true and enter such order as may be
appropriate.
The compliance specification served on the Respondent states that
"pursuant to Section 102.56 of the Board's Rules and Regulations, the
Respondent and single employer and alter ego, Kelco Roofing, Inc., shall
file with the (Regional Director) . . . an original and four (4) copies
of an Answer to the said Compliance Specification within twenty-one (21)
days from (the date listed below) . . . ." The compliance specification
states further that
to the extent that such Answer fails to deny any allegation of
the Compliance Specification in the manner required under Section
102.56(b) of the Board's Rules and Regulations, and the failure to
do so is not adequately explained, such allegation shall be deemed
to be admitted to be true and the Respondent shall be precluded
from introducing any evidence controverting said allegation.
The Regional Director's communication of April 25, 1991, advised the
Respondent that summary judgment would be sought if an answer was not
received by May 3, 1991. The Respondent's May 7, 1991 communication was
received by the Regional Office on May 10, 1991, 7 days beyond the May
3, 1991 deadline. The Respondent has offered no explanation for its
failure to file a timely answer. In the absence of good cause being
shown by the Respondent for the failure to file a timely answer, we find
the Respondent's answer to be untimely. See Kasper Disposal Service,
292 NLRB 265 (1989), and Burger King Restaurant, 265 NLRB 175 (1982).
Even assuming that the Respondent's purported answer was timely, we
would find that it is substantively deficient with respect to paragraphs
8, 9, 10, and 11 of the compliance specification because it contains
general denials concerning those matters within the Respondent's
knowledge. Section 102.56(b) of the Board's Rules and Regulations,
which contains the rules governing the contents of answers to compliance
specifications, states in relevant part that:
As to matters within the knowledge of the respondent, including
but not limited to the various factors entering into the
computation of gross backpay, a general denial shall not suffice.
As to such matters, if the respondent disputes either the accuracy
of the figures in the specification or the premises on which they
are based, the answer shall specifically state the basis for such
disagreement, setting forth in detail the respondent's position as
to the applicable premises and furnishing the appropriate
supporting figures.
Also, Section 102.56(c) states that, in relevant part, if an answer
to the specification is filed, but it fails to deny any allegation in
the manner required by paragraph (b) of this section, and such failure
to deny is not adequately explained, "such allegation shall be deemed to
be admitted to be true, and may be so found by the Board without the
taking of evidence supporting such allegation, and the respondent shall
be precluded from introducing any evidence controverting the
allegation."
In the Respondent's untimely communication to the Regional Office,
its response to paragraphs 8, 9, 10, and 11 (which relate respectively
to the total hours of work for which the Respondent's employees were
paid, the total gross amounts owed to the funds and for the work
assessment fees, the contributions Respondent has already made to the
funds, and the calculations for the net monthly amounts owed to each
fund minus the contributions already made), were merely general denials
without explanation of the basis for the denials, /5/ and without offers
of any calculations in support of those general denials. We find that
these matters clearly were within the Respondent's knowledge.
Such general denials concerning matters within the Respondent's
knowledge are insufficient answers because they fail fairly to meet the
substance of the allegations of the specification, nor do they reveal
any basis for disagreement with the specification or its allegations, or
set forth in detail any supporting figures or alternative premises.
Challenge-Cook Bros. of Ohio, 295 NLRB No. 50, slip op. at 8 (June 15,
1989); Sneva's Rent-A-Car, 270 NLRB 1316, 1317 (1984). See also Norco
Products, 297 NLRB No. 134, slip op. at 4 (Feb. 23, 1990). Thus,
Respondent's communication, notwithstanding its untimeliness, is
substantively deficient as an answer to paragraphs 8, 9, 10, and 11 of
the compliance specification.
Since we have rejected the Respondent's communication as untimely and
substantively deficient, in accordance with the Board's Rules and
Regulations, the allegations of the backpay specification are deemed to
be admitted as true, and we grant the General Counsel's Motion for
Summary Judgment. /6/
Accordingly, the Board concludes that the amount of working
assessment contributions due is as stated in the computations of the
specification, and orders payment by the Respondent to the union fund
and the Union.
The National Labor Relations Board orders that the Respondent, Martin
E. Keller Roofing Co., and its alter ego, Kelco Roofing, Inc.,
Schenectady, New York, its officers, agents, successors, and assigns,
shall forward immediately to the Union and the union funds listed in the
specification, contributions in the amounts listed in the specification,
plus any additional amounts required under Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979).
Dated, Washington, D.C. September 27, 1991
Dennis M. Devaney, Member
Clifford R. Oviatt, Jr., Member
John N. Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
(SEAL)
/1/ 297 NLRB No. 129. Members Oviatt and Raudabaugh did not
participate in the underlying Decision.
/2/ The General Counsel, in its Motion for Summary Judgment,
inadvertently stated in par. 2 that the United States Court of Appeals
for the Second Circuit issued its order of enforcement on August 5,
1990.
/3/ Docket No. 90-4145 (unpublished judgment).
/4/ The envelope for the May 7, 1991 communication indicates the date
of mailing was May 8, 1991.
/5/ In Respondent's May 7, 1991, communication to the Regional
Office, its responses to paragraphs 8, 9, and 11 were "we disagree," and
its response to paragraph 10 was simply "we disagree, we have more funds
applied and paid than this."
/6/ The General Counsel's motion to revoke Notice to Show Cause is
denied.
304 NLRB No. 145
DBM, INC. and INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA
Cases 18-CA-10771, 18-CA-10790, 18-CA-10806
D-2293
Cedar Falls, IA
On February 28, 1991, Administrative Law Judge William F. Jacobs
issued the attached decision. The General Counsel and the Respondent
filed exceptions, supporting briefs, and answering briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the
exceptions /1/ and briefs and has decided to affirm the judge's rulings,
findings, /2/ and conclusions and to adopt the recommended Order.
The National Labor Relations Board adopts the recommended Order of
the administrative law judge and orders that the Respondent, DBM, Inc.,
Cedar Falls, Iowa, its officers, agents, successors, and assigns shall
take the action set forth in the Order.
Dated, Washington, D.C. September 27, 1991
Dennis M. Devaney, Member
Clifford R. Oviatt, Jr., Member
John N. Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
(SEAL)
/1/ The General Counsel filed a motion to strike the final sentence
of the Respondent's brief in support of its exceptions, arguing that the
brief's final sentence is an exception that does not conform to Sec.
102.46 of the Board's Rules and Regulations. The Respondent did not
respond to this motion. To the extent that the final sentence of the
Respondent's brief is a nonconforming exception, rather than a shorthand
reiteration of an argument that appropriately could be placed in a
brief, we grant the General Counsel's motion to strike it.
/2/ The General Counsel and the Respondent except to some of the
judge's credibility findings. The Board's established policy is not to
overrule and administrative law judge's credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F. 2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
In its exceptions, the Respondent alleged bias on the part of the
judge in deciding the case. We have carefully considered the record as
a whole and the judge's decision in light of the Respondent's argument
and find no basis for finding bias by the judge.
JD-47-91
Cedar Falls, IA
DBM, INC, /1/ and INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE
AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA /2/
Case Nos. 18-CA-10771,
18-CA-10790, 18-CA-10806
Everett Rotenberry, Esq., of Minneapolis, MN, for the General
Counsel.
Harry W. Zanville, Esq., of Waterloo, IO, for the Respondent.
Walter Schneider, Esq., of Waterloo, IO, for the Charging Party.
WILLIAM F. JACOBS, Administrative Law Judge: This case was tried
before me on July 18 through 20 and September 12, 1989 /3/ in Waterloo,
Iowa.
The Union filed charges in Case No. 18-CA-10771, 18-CA-10790 and
18-CA-10806 on January 30, February 22 and March 10 respectively.
Consolidated complaints issued March 15, and March 28 alleging that
Respondent violated Section 8(a)(1) of the National Labor Relations Act
by threatening and interrogating its employees and by otherwise
interfering with, restraining and coercing them in the exercise of the
rights guaranteed them in Section 7 of the Act, and violated Section
8(a)(1) and (3) of the Act by suspending, laying off and discharging
certain of its employees because of their union activities. Respondent
denies the commission of any unfair labor practices.
All parties appeared at the hearing and were afforded full
opportunity to be heard and present evidence and argument. General
Counsel and Respondent filed briefs. /4/ Upon the entire record, /5/ my
observation of the demeanor of the witnesses and after giving due
consideration to the briefs, I make the following:
Respondent, DBM, was established in August 1987 and from the
beginning was engage in the operation of a machine shop in Cedar Falls,
Iowa, where it performed chipping, grinding and blasting services on
various parts supplied to it by its non-retail, commercial customers.
Although, from its inception, Respondent serviced a number of customers,
as months passed, John Deere and Company became one of its most
important. By April and May, 1988, the "Pontiac block," the part which
Deere supplied to Respondent for servicing, had become a more and more
significant portion of the work being performed at Respondent's shop,
representing 40 to 50 percent of sales.
As of May, 1988, Respondent was receiving $5.05 for each Pontiac
block which it serviced. At that time, it was paying its employees a
per piece rate of $1.45 for each Pontiac block which they chipped and
ground. On July 29, 1988 Deere advised Respondent that henceforth it
would pay only $4.45 per block, an immediate reduction of 60 cents.
Respondent accepted the reduction in order to keep the account but did
not, at the time, pass on the loss to its incentive employees working on
the Pontiac blocks. The result was that the labor cost on the block ate
up the profits that would have been earned had Deere not reduced the
price on the blocks.
By June, the servicing of Deere's Pontiac blocks accounted for 80
percent of Respondent's sales. Yet, these sales generated no profits.
The situation continued in this state into the fall.
Meanwhile, about the first of June 1988 there was a falling out among
Respondent's owners, as a result of which one of them left. He had been
in charge of the computer system which contained profit and loss data
and various other accounting records. The two remaining co-owners,
President Douglas McCalley and Vice President Sidney Bunger were
unfamiliar with the system and were at a disadvantage understanding the
precise financial condition of the company. To compound the difficulty,
the part owner who left the company had attempted to retrieve certain
data from the system for his own purposes before he left, and in the
process blew out of the system much of the valuable financial data
contained therein. As a result of the destruction of Respondent's
records and their general lack of understanding of Respondent's
financial situation, McCalley and Bunger did not immediately realize the
seriousness of their profit and loss status. They did, however, assign
their bookkeeper the job of putting back into the computer, all of the
lost information, a project which was to take two to three months.
In late summer or early fall, 1988 Respondent's bankers advised
management that its financial figures "did not make sense" to them. The
bankers suggested, following an analysis, that Respondent do something
so that its management could determine its financial status.
Upon receiving the bankers' advise, Respondent hired a certified
public accountant, to reconstruct its financial records. He began
working on Respondent's records September 30, 1988 and shortly
discovered that Respondent had been receiving erroneous profit and loss
statements from its accounting system and set about cleaning up the
inconsistencies and establishing a better system, concentrating on the
period October through December 1988.
On November 16 and 17, 1988 the CPA supplied management with reliable
profit and loss statements for the previous September and October. Upon
analyzing these statements, management realized that whereas earlier in
the year labor costs had been 45 percent of sales and averaged 50
percent for the year, for November it was 63 percent. Management
understood that changes would be necessary or else the company would be
in dire financial trouble. McCalley and Bunger, nevertheless, decided
to wait until they obtained the figures for November before taking steps
to alleviate the situation.
On December 15, the CPA provided management with Respondent's profit
and loss statement for November. McCalley decided that drastic steps
would be necessary but did not know exactly what steps to take. After
having the CPA's figures confirmed by Respondent's bankers, McCalley and
Bunger decided to take a working vacation in Florida over the Christmas
holidays and determine a course of action.
In Florida, McCalley and Bunger studied the company's financial
situation using the information obtained from the CPA. The focus of
their study was on how to adjust the cost of labor to make the company
more profitable. Clearly, the Pontiac block was the single biggest
labor cost factor as well as the single biggest gross revenue producer
so that probably that was the area that should be targeted. Since Deere
had reduced the price it would pay Respondent for chipping and grinding
Pontiac blocks by 60 cents per piece, McCalley and Bunger decided that
it would be fair to reduce the amount it paid to its employees by 30
cents, from $1.45 per block to $1.15 per block, thus sharing the loss
equally between the company and the employees. It was further decided
to advise the employees of the reduction in the incentive by memorandum,
through Harlan Weltzin, the chief supervisor, who had been left in
charge of the shop, while McCalley and Bunger were in Florida.
Deere was shut down from Christmas through January 2, /7/ and no
parts were shipped from Deere to Respondent's shop during that period.
Consequently, production was limited to work on materials already in the
shop. Since there was little work to be performed, Respondent permitted
its employees to take voluntary time off during the holiday season and
over 50 percent of them did so, at various times during the period.
Respondent's employees returned to work on January 3 and the rest of
the week was a regularly scheduled workweek. However, since Deere's
employees did not return to work until January 3, shipments of parts
from Deere did not reach Respondent immediately so work continued slow,
and employees continued to take voluntary time off during the week of
January 3, with Respondent's permission.
Also on January 3, McCalley returned to the plant for the first time
since leaving for his Florida vacation with Bunger. The record is
silent with regard to any discussion between McCalley and Weltzin on the
subject of reduction of the Pontiac block incentive rate, but on the
basis of probabilities and subsequent events, I find that McCalley fully
informed Weltzin about the discussion to reduce incentive.
I find further, on the basis of both probability and evidence, that
Weltzin, on January 3, passed on to the employees, the information that
he had received that morning from McCalley that there was a planned 30
cents reduction in the Pontiac block incentive rate. Although employee
Todd Salisbury testified that shortly after January 3, Weltzin made an
announcement, in the break room, to the entire first shift, that the
price of blocks was going to be cut from $1.45 to $1.15, I find for
reasons stated infra, that before the official announcement was made,
Weltzin informed the employees of the reduction unofficially on January
3.
Weltzin testified that in the first part of January, January 5, 6 or
7, when he went into the break room, to call the first shift employees
back to work after the break, he heard employee Rod Lesh say, "Its not
fair. Maybe we ought to see about a union. I find that when Lesh said,
"Its not fair," he was referring to the reduction in the Pontiac block
incentive rate and that for reasons explained below, the incident
occurred on January 3, not later in the week.
I reach the conclusion that Weltzin informed the first shift
employees on January 3, not later, that there was going to be a
reduction in the Pontiac block incentive rate because of the fact that
late in the afternoon and evening of January 3, three employees of
Respondent, without apparent planning, independently and precipitously
contacted the Union.
Employee Mike Derbyshire contacted the Union and advised one of its
agents, Walt Schneider, that Respondent's employees were interested in
being organized. Schneider told Derbyshire that he would have to talk
to a few fellow employees and try to set up a meeting to be attended by
at least eight or ten of their number.
Employee Hershel Hamilton also contacted the Union on January 3 at
about 4 p.m. and spoke with David Neil, an international representative
of the Union. In answer to several questions posed by Neil, Hamilton
advised the union agent that DBM employed 35-40 employees, and that
there was considerable interest in union representation. Neil advised
Hamilton to get eight or ten interested employees together and a meeting
would be scheduled for January 10 at 7 p.m. at the union hall. Neil
also advised Hamilton to bring with him a list containing the names of
rank-and-file employees, supervisors and owners.
On the evening of January 3, employee Rod Lesh called the Union, just
as he had suggested he might do earlier that day in the break room, and
spoke with Neil, identifying himself as an employee of Respondent. He
told Neil that he and his fellow employees were interested in being
organized. Neil told Lesh about Hamilton's earlier call and about the
meeting scheduled for January 10. Still later in the evening, Neil
advised Schneider about the January 10 meeting scheduled with
Respondent's employees.
The record reveals no general dissatisfaction with working conditions
as they existed during the weeks just prior to January 3. The workload
was light and employees were permitted to voluntarily take off, thus
working the hours that pleased them. There had been no meetings among
the employees to discuss obtaining union representation because of
concerns about health and safety, increased wages, holidays or other
working conditions. /8/ Indeed, the three employees who contacted the
Union in the late afternoon and evening of January 3 did so
spontaneously and individually. Since it was their first day back at
work, I find that their calls were precipitated by something that
happened that day. The only thing of any significance that could have
occurred which might have resulted in their contacting the Union would
have been their learning of the planned reduction in the incentive rate.
Since any reduction in the incentive rate would automatically result in
a cut in pay, the affected employees would certainly have been concerned
enough to seek the aid of a labor organization. I find that this is
what occurred on January 3.
Following his discussion with Schneider on January 3, Derbyshire
contacted 10 or 11 fellow employees, sometimes at the shop on breaks, at
other times by phone at their homes, and asked them if they would be
interested in obtaining union representation. Similarly, Hamilton did
as instructed by Neil and contacted several fellow workers and spoke to
them concerning union representation. He also compiled the requested
list of employees.
Weltzin testified credibly that during the rest of the week,
beginning on January 3, the employees were doing a lot of standing
around. Though they all had work stations, most of the employees who
were standing around were doing so away from their work stations,
talking to each other. Weltzin, on a number of occasions, had to tell
employees singly to return to their stations and get to work. Though
Weltzin frequently could hear the employees talking on these occasions,
he testified that he could not hear what they were talking about. Of 18
to 22 employees working on the first shift, Weltzin testified that 8 or
10 would be away from their work areas at any given time. The fact that
the employees were wandering around, away from their working areas,
talking with one another, probably reflects an attitude of
disgruntlement brought about by the expected forthcoming reduction in
the incentive rate. It may also have had something to do with their
union activity. At any rate, it came to Weltzin's attention and he
eventually called a meeting to discuss the matter. This meeting became
the subject matter of certain allegations discussed infra.
After discussing the possibility of union representation with 8 or 10
of his coworkers, Derbyshire called Schneider at the union hall to
advise him of his progress. Schneider informed Derbyshire of the
meeting scheduled for January 10. Derbyshire then contacted the
employees with whom he had spoken earlier and told them about the
forthcoming meeting.
On January 9, Bunger returned to the shop from vacation and it was
agreed at that time that the planned reduction should be officially
announced and implemented. Bunger typed the following memo pertaining
thereto:
TO ALL EMPLOYEES:
09 JANUARY 1989
THE PRICE ON PONTIAC BLOCKS PER PIECE, WILL BE REDUCED TO $1.15
ON 16 JANUARY 1989. DBM HAD A PRICE DECREASE FROM THE SUPPLIER TO
KEEP ALL BLOCKS IN HOUSE.
DBM MANAGEMENT
The memo was then given to Weltzin to post and explain to the employees.
Both McCalley and Bunger testified that the announcement was delayed
until January 9 because Bunger was not back from vacation until that
date and a number of rank-and-file employees were still out on voluntary
time off up until that date. Thus, it was determined to wait until
January 9 when everyone had returned before making the announcement.
Also, management decided to wait until January 16 to implement the new
incentive rate in order to give the employees time to adjust to the
planned reduction in wages.
Weltzin received the memorandum and instructions on January 9, a
little after 7 a.m. He then went around to everyone and told them to
remain in the break room after their 9 a.m. break because he wanted to
speak with them for about five minutes.
At 9 a.m. Weltzin went down to the break room and waited there until
the 15 minute break was over. He then explained to the employees what
he had been told by McCalley and Bunger. He also read the memorandum to
them. There was some question from the employees as to whether there
had really been a decrease in the price of blocks paid by Deere.
Weltzin defended the honesty of McCalley and Bunger to assure the
employees that what he had been told was true. After some further
discussion, Weltzin posted the notice. /9/
In accordance with the information contained in the memorandum, the
employees continued to receive $1.45 per block through January 16.
After January 16 they received $1.15 per block.
By January 9 the union activity of certain of Respondent's employees
came to the attention of management. According to the complaint, /10/
on this date, Foreman Michael Johnson, an admitted supervisor,
interrogated a number of employees concerning their activities for and
on behalf of the Union. The answer to this allegation was withdrawn at
the hearing. I therefore find the allegation meritorious and the
violation proven. /11/
On January 9 also, John Ambrose, an admitted supervisor under the
act, wore a sign upon which was printed the slogan, "Down with the
Union". /12/ Thus, Johnson's interrogation of employees and Ambrose's
wearing of the sign, both of which occurred on January 9, evidence
company knowledge of its employees' union activity, as of that time, as
well as antiunion animus.
Weltzin testified, as noted above, that since January 3 the employes
had been standing around, talking and wandering away from their work
stations. He testified further, that on January 10 he gathered the
employees together before they left for the day, and warned them that if
they continued to stand around, he would discharge them.
The complaint /13/ alleges that Weltzin on January 10 "threatened an
employee with discharge because of employees' activities for and on
behalf of the Union." Respondent, after initially denying this
allegation, withdrew its answer thereto at the hearing. The effect is
an admission of the violation alleged and I so find.
On the evening of January 10, the meeting was held as scheduled at
the union hall. Ten of Respondent's employees attended. Four of the
ten were among the ten employees alleged in the complaint as
discriminatees. Those were Michael Derbyshire, Todd Salisbury, Rodney
Lesh and Keith Diesburg. Of the three employees who contacted the Union
on January 3, all three were in attendance. Hamilton delivered to the
Union the list of employees which had been requested.
At the meeting, the Union and Respondent's employees decided to go
ahead with the organizing drive. The Union distributed buttons and
scheduled the next meeting for January 14, at 4 p.m. After January 10,
many employees wore their union buttons at work. Thus, the campaign was
brought into the open.
On January 11, Foreman Chris Wilkenson, a supervisor under the Act,
admittedly /14/ interrogated an employee about that employee's union
activities and desires and about those of other employees in violation
of the Act.
On January 12, Foreman Johnson admittedly /15/ threatened that
employees' wages would be reduced and that Respondent would discontinue
operations, in order to discourage employees' activities for and on
behalf of the Union in violation of the Act.
As noted abaove, the second union meeting was scheduled for January
14. This scheduled union meeting came to the attention of management
and on January 13, Foreman John Ambrose, a supervisor under the Act,
admittedly /16/ directed that a group of employees not attend this union
meeting.
The union meeting was held on January 14 as scheduled. Twenty-three
of Respondent's employees attended the meeting. Of the ten employees
alleged as discriminatees in the complaint, nine of them attended the
meeting. All employees in attendance signed union authorization cards.
Present at this meeting was Foreman Michael Johnson, the supervisor
who, during the previous several days, had engaged in acts of violative
interrogation and threats. Johnson had appeared on Hamilton's list as a
supervisor and his presence appeared to make the employees nervous so
Neil asked him if he was a supervisor. When Johnson denied being a
supervisor, Neil asked him a number of questions concerning his
authority to hire, fire and reprimand. Johnson denied having any such
authority. Johnson had signed the sign-in sheet. When Neil later
collected and checked out the signed union authorization cards, he found
that Johnson had filled out his card lightly in pencil and had failed to
sign it. When Neil asked Johnson if he was going to sign the card,
Johnson did so, but Neil never saw him again.
The following day, and thereafter, most of Respondent's employees
wore union buttons on the job. This, of course, did not go unnoticed by
management. Bunger testified that the first time that he heard about
the Union and the organizational drive was about January 15 or 17.
However, inasmuch as Respondent admits that members of management
engaged in antiunion activities as early as January 9, it was clear that
management was aware of union activity among its employees prior to
their wearing their union buttons.
The week ending January 15 marked the last week during which
employees received the $1.45 per piece incentive for Pontiac blocks.
Beginning January 16, they received $1.15 per block. Although January
16 was Martin Luther King's birthday and was celebrated at the shop as
an unpaid holiday, some employees worked. Those who did and worked on
the Pontiac blocks were paid at the new reduced rate.
The complaint /17/ alleges that on January 17, Foreman Weltzin
announced the institution of new plant rules and instituted such plant
rules as a reprisal for employees' activities for and on behalf of the
Union. Respondent denies this allegation.
With regard to this allegation, the record indicates that Respondent,
on January 17 announced the implementation of a set of work rules.
These rules are quite diverse in nature, some being typical of plant
rules everywhere, some being distinctly unique. Some of the rules
announced on January 17 had been in effect prior thereto while others
were new. McCalley and Bunger testified that together they were
responsible for composing the list of rules. They defended each rule as
a good one and offered explanations as to why the implementation of each
rule was necessary. They did not, however, explain why suddenly, it
became necessary to issue the list of rules at this particular time,
right in the middle of a union organizing campaign, three days after a
union meeting, well-attended by Respondent's employees, a meeting which
one supervisor directed these employees not to attend. I find that the
timing of the issuance of these rules, and the nature of some of them,
reflect a discriminatory motivation, while others do not. In my
opinion, no set of rules would have issued at this time but for the
union activity of Respondent's employees. Apparently, however, in
composing the list of rules designed, in part, as a reprisal for its
employees' union activity, McCalley and Bunger decided to reiterate some
pre-existing legitimate rules and to implement certain new ones designed
merely to improve the quality of production. To the extent I find
certain of the rules to be motivated by antiunion considerations, I
reject Respondent's explanation that the rules were designed merely to
remind old employees and advise new employees of their existence.
Once McCalley and Bunger composed the list of rules, they gave it to
Weltzin to present to the employees. Weltzin thereafter read the list
to the employees, verbatim, then offered explanations concerning each
rule. The list reads as follows:
17 January 1989
You have the right to organize and belong to a union.
Company rules:
When called in sick, you will need a doctor's excuse.
You need to call each and every day missed, whether sick,
injured or (for) any reason you are absent.
If you have car trouble coming to work, notify DBM immediately
and you must be at work as soon as possible that day.
If late for work you will be reprimanded and allowed a 5 minute
grace period, if not misused.
Any time you take off work for personal reasons, you must
notify the company 24 hours in advance and have it okayed by
supervision.
No afternoon break.
If you are capable of making more than 150% (of your) job, the
job will be looked at.
If out of work area without a reasonable reason, you will be
reprimanded.
If late coming back from breaks, you will be reprimanded.
All blocks and other parts must be stamped.
If anyone is caught damaging company property or parts because
of their own recklessness, they will be reprimanded.
If below base rate when running parts, it will be looked at and
you will be reprimanded.
While on company property or company time, if you are in
possession or under the influence of alcohol, drugs or contraband,
you will immediately be dismissed. (The only exception is
tobacco).
Insubordination to any company personnel will result in
immediate reprimand.
With regard to the reference in the document, to "the right to
organize and belong to a union", McCalley testified that it was put in
there to put the employees at ease. I find, however, that the reference
to union organizing immediately above the list of rules proves, even
more than the timing of their issuance, that the organizational activity
of Respondent's employees was the ocassion for the institution of the
rules. The purpose of the inclusion of the reference in the document
was to make it clear to the employees that the institution of the rules
was Respondent's answer to its employees union activity. Concerning the
need for a doctor's excuse, McCalley testified that employees had been
taking off whenever they wanted and the company was having a serious
absentee problem as a result. The institution of the requirement that
employees obtain a doctor's excuse was meant to solve this problem.
Bunger testified that he had listened to McCalley interview prospective
employees and heard him tell them that a doctor's excuse would be
required when they call in sick, thus implying that the requirement was
a non-written rule. However, the set of written rules in effect prior
to January 17 contains no reference to the doctor's excuse requirement.
Concerning the second rule on the list -- that which requires an
employee to call in if he is going to be absent for any reason, McCalley
testified that the purpose of the rule was to enable Respondent to know
in advance that an employee would be absent and thereby make the
necessary personnel change to cover his absence. The rules in effect
prior to January 17 were silent as to any call-in requirement.
Concerning the third rule which requires an employee who has car
trouble on the way to work to call in immediately, McCalley testified
that its purpose was merely to let management know, one way or the
other, whether the employee was going to report for work. Bunger did
not testify and there is no evidence that this requirement was in
existence prior to January 17.
Neither McCalley nor Bunger testified concerning the fourth rule --
that regarding tardiness, and the old rules are silent on the subject.
The fifth rule which requires an employee who wishes to take a day
off, to give 24 hours notice, was touched upon by McCalley in his
testimony. He did not, however, claim that this was a requirement prior
to January 17 and, once again, the old rules are silent on the subject.
Concerning the sixth rule which abolishes the employees' afternoon
break, McCalley testified that he decided to do away with the break
because it was supposed to be a five minute break and employees
stretched it to between 10 and 20 minutes. Bunger also testified that
the afternoon break was taken away from the employees because they had
been abusing the privilege. He explained that Weltzin reported to him
and to McCalley that the employees had been taking too long on the
afternoon break and that he had tried to limit the time they took but
had been unsuccessful. According to Bunger, it was Weltzin who had
suggested that the afternoon break be discontinued.
Though not clear from the document itself, the seventh rule referred
to a 150 per cent cap placed on the incentive rate on the production of
Pontiac blocks. McCalley and Bunger decided on the cap on incentive
production, according to McCalley, because of the safety factor
involved. Bunger testified that the cost of workmen's compensation
insurance had gone up substantially from 1988 to 1989. According to
Bunger, it was decided to put a cap on production as an experiment, in
an attempt to reduce injuries and thereby bring down the cost of
insurance. The theory was that if the employees on the line did not try
to push themselves to produce 200 per cent, there would be fewer
injuries. Bunger admitted that the effect of the cap was to reduce the
wages of those previously producing 200 per cent from $10 per hour to a
maximum of $7.50 per hour.
The eighth rule which threatened a reprimand for employees who were
caught out of their work area without a good reason was instituted,
according to McCalley, in order for management to keep track of the
whereabouts of its employees. He testified that this rule had been in
effect before and, indeed, the old written rules includes a loitering
prohibition.
McCalley testified that the ninth rule, which states that employees
will be reprimanded for coming back late from breaks, was part of a
continuous effort to get the employees to return to their work stations
promptly and not remain in the breakroom five to ten minutes past break
time. As it was, their supervisor would have to go down to the break
room to call them back to work. This rule is not contained in the old
written rules.
The tenth rule which requires that parts be stamped was instituted
for the purpose of tracing the part back to the employees who worked on
it as a matter of quality control, according to McCalley. He did not
testify as to whether this rule existed prior to January 17. The old
rules make no reference to this subject.
The eleventh rule which calls for the reprimanding of any employeee
caught damaging company property or parts because of recklessness was
not a new rule, according to McCalley, but a rule which every company
has. He implied that this was an unwritten company rule before January
17. The old written rules are silent on the subject.
McCalley testified concerning the twelfth rule that it might be
necessary to reprimand an employee who continuously fails to produce at
base rate. He did not testify as to whether the rule was an old one or
a new one. The old written rules make no reference to the subject.
The thirteenth rule prohibiting the use or possession of drugs on
company time and threatened discharge for violation of the rule,
McCalley testified, is a standard rule at any company. Indeed, the old
Company rules include such a prohibition.
The fourteenth and final rule concerning reprimand for
insubordination was not, according to McCalley, a new rule and, indeed,
is listed among Respondent's old rules. McCalley completed his
testimony on the list of rules by stating that all of them were rules
typically found at other companies.
Weltzin testified that it was necessary to read the rules given to
him by McCalley and Bunger to the employees because some of the
employees were new and the older employees had either misunderstood the
existing rules or had forgotten them, implying that the rules dated
January 17 had always been in effect.
Weltzin testified that a day or two before the 17th Bunger and
McCalley drew up the list of rules and showed them to him and asked him
if he had anything to add. Then, in accordance with their directions,
on January 17, he held a meeting with the first shift employees a few
minutes after 7 a.m., then one with the 2nd shift employees about 2 p.m.
According to Weltzin, he read each rule directly from the sheet, then
explained to the employees what the rule meant.
Weltzin first discussed the Union with the employees. According to
him, he told them that they had a right to organize and belong to a
union; that they could, during breaks, talk about organizing and visit
with each other, but during actual work time he expected them to do the
work and not be walking back and forth, talking.
Employee Steven Belz testified briefly about Weltzin's discussion of
the union at his meeting with the first shift employees. Belz could not
remember Weltzin telling the employees that they had the right to
organize and belong to a union. Employee Howard Howe testified that
Weltzin told the second shift employees that there would be no talking
about the union during working hours and that the penalty for breaking
this rule was suspension. According to employee Boyd Niedert, who
attended the second meeting, Weltzin said that he could not stop a union
drive if the employees felt that they needed a union but that he did not
feel that they needed one. He stated that he did not want to be hassled
with a union or people hassling other employees on company time. He
added that it would be all right for employees to discuss the union on
breaks.
The complaint does not allege that Weltzin's preliminary discussion
of employees' union activities, just prior to his discussion of the
institution of new plant rules, was violative of the act, and I do not
find that it was. On the other hand, I find that the fact that the
subject of union organizing was placed at the top of the list of rules,
precludes any possibility that the institution of the rules and the
initiation of the union organizational campaign were purely
coincidental. Indeed, the effect of most of the rules, though perhaps
not all, was either to restrict or inhibit employees' freedom of
movement, or to punish them or to show them how well off they were
before they chose to engage in organizational activity. Where I find
below, that the institution of a particular rule was motivated by
antiunion considerations, I shall find a violation as alleged in the
complaint. /18/
Before actually reading the rules to the employees, Weltzin announced
that the reason he was reading them was to refresh the memories of old
employees as to their existence and to advise new employees of the rules
to the extent that he had not already done so. He then read each rule,
explained it and asked if there were questions.
With regard to the first rule, Weltzin testified that he told the
employees that when they call in sick, they would need a doctor's excuse
for each and every day they were off sick, and that failure to provide
the excuse would result in the employee being given the day off without
pay, maybe more, depending on circumstances.
A number of employees testified that Weltzin threatened that failure
to provide a doctor's excuse would result in disciplining, reprimanding
or termination. They testified further that there had never been such a
rule in effect prior to January 17, either written or otherwise and that
some of them had been sick in the past and had returned to work without
a doctor's excuse, without any disciplinary action being taken against
them.
I find this rule to be a new one or an old one not previously
enforced, and in the total absence of any other explanation, instituted
or newly enforced for the sole purpose of intimidating the employees
because of their union activities. The rule was meant to and did
adversely affect the employees' working conditions. The timing of the
institution of this rule, in the midst of the organizing campaign and
its appearance, along with the other rules, immediately below the
Respondent's reference to the employees' organizing activities, is clear
evidence of the obvious connection, cause and effect, between the two.
I shall so find with respect to most of the other rules without engaging
in unnecessary repetition of this reasoning.
Weltzin testified with regard to the second rule, namely, that any
employee who intends to be off from work for any reason, must call in
and notify the company beforehand. He warned the employees that failure
to follow the rule would result in a reprimand, a written warning, a day
off without pay for a second occurrence, three days off without pay for
a third occurrence and possible termination for an employee missing more
than one day without calling in.
Employees testified that there were no written rules concerning
having to call in before taking off and no penalties for failure to do
so. Some employees testifying on the subject stated that they would
call in when they expected to be absent while others testified that
they, on several occasions, missed work without calling in and nothing
was ever done about it.
For reasons stated above, I find this rule, newly instituted, or
newly enforced, to be discriminatorily motivated and a violation of the
Act. Its reasonableness is not in question. Its implementation, and
that of the other rules, as a reprisal for union activities is what is
relevant. /19/
Weltzin, according to at least one witness did discuss with the
employees, the third rule -- that concerning the necessity for employees
to call in immediately if they have car trouble. Weltzin did not,
however, testify concerning this rule. I find, for reasons discussed
above, that its institution, or sudden enforcement, was discriminatorily
motivated.
Weltzin testified with regard to the fourth rule, that he told the
employees that if they were late for work they would be reprimanded but
that they would be given a five minute grace period as long as they did
not take advantage of it. He warned that employees who abused the grace
period would be disciplined.
According to employee witnesses, Weltzin told them that they would
have to be on time or they would have to take the day off or that other
action would be taken. These witnesses testified further that before
the January 17 announcement, although employees were expected to report
on time, there had been no problem; that "lots of people had come in
late" and no one had been sent home. Moreover, there had been no stated
penalty for arriving late at work; there had been no disciplining and
no warnings issued.
I find that the rule concerning lateness and the penalties announced
for violation of the rule were newly instituted. No explanation having
been offered for its institution, I find that it was discriminatorily
motivated for the reasons discussed above in connection with other
rules.
The fifth rule concerns the requirement that employees desiring to
take a day off for personal reasons, notify the company 24 hours in
advance and obtain the permission of their supervisors. Weltzin read
the rule and explained it to the employees. He did not, however, offer
any explanation for the institution or sudden enforcement of this rule.
According to one employee who testified, Weltzin stated that failure
to call in 24 hours in advance, as required, would result in a written
warning for the first infraction and time off for the second infraction.
Another employee credibly testified that prior to January 17 there was
no 24 notice required. If he wanted the day off, he could call in that
morning and would be told, "fine". Another testified that if he wanted
a day off, all he had to do was ask.
I find that the 24 hour rule was newly instituted for discriminatory
reasons in retribution for the employees' union activities and was
therefore violative of the Act.
The sixth rule concerned the abolishment of the afternoon break.
Weltzin testified that when he announced the abolishment of the
afternoon break, he explained to the employees the reason for its
discontinuance. He told them that he had initiated the break for the
block line employees, in particular, so that all four employees could
take their break and go to the rest room or smoke a cigarette at the
same time because if any one of them left, it would stop the line
anyway. Thus, the idea was to benefit the company by having just one
break instead of four. The break was being discontinued, according to
Weltzin, because instead of taking 5 to 10 minutes, the employees were
taking 15 to 20 minutes and this was adversely affecting production.
Men on the line were complaining because fellow workers were taking too
much time, and they were losing incentive. Employees, other than block
line employees, also began taking afternoon breaks, and they too began
to abuse the privilege, Weltzin testified.
Robert Folkers, a supervisor at the time of the hearing, and a
witness for Respondent, supported Weltzin's testimony that employees had
been abusing the privilege by overstaying the break. He testified that
this was the reason that the afternoon break was discontinued and this
was the explanation given by the Company.
Most employee witnesses testified that Weltzin announced the
discontinuance of the afternoon break but did not testify as to whether
or not he gave any explanation for its discontinuance. One employee
witness specifically stated that Weltzin gave no reason for
discontinuing the afternoon break when he announced it on January 17.
This witness also testified that when Weltzin read the list of rules, he
referred to them as "new rules."
For several months prior to January 17, block line employees had been
taking the 5 to 10 minute break as Weltzin had suggested. These
employees were later joined by non-block line employees who also took
the break but apparently without permission. The time spent on these
breaks tended to get longer and longer. Weltzin would visit the break
room to order the men back to their work stations. He warned them about
losing the privilege if they continued to abuse it.
Respondent takes the position that the afternoon break was taken away
from the employees because the employees abused the time limitations. I
find, however, that although there is evidence that certain employees
did extend their breaks beyond the 5 to 10 minutes they should have
taken, the breaks would not have been discontinued except as part of the
employer's campaign of retaliation against its employees because of
thier union activities. It was just one of a dozen rule changes
instituted on the same day, January 17, to make working conditions
tougher for those employees. It should not go unnoticed that during the
same speech wherein Weltzin announced that employees were free to talk
about union organization during their break periods, he also effectively
did away with the afternoon break and the opportunity to engage in
organizational activity. I find the discontinuance of the afternoon
break discriminatorily motivated.
The seventh rule concerned the capping of the incentive rate at 150%
of base. This rule is quite different from those previously discussed.
Whereas the first six rules tend to have the effect of merely making
working conditions less pleasant for the employees, they could arguably
indirectly benefit the employer. The rule capping the incentive rate,
on the other hand, seriously affected the income of employees while it
also adversely affected that of the Respondent. Weltzin testified that
when he read the rules to Respondent's employees on January 17,
Respondent had just hired a number of new employees. Indeed, he claimed
that to be one of the reasons he was reading the rules to them; to
acquaint the new employees with these rules. Weltzin also testified
that the reason new employees were hired was because new extra work was
coming in and the company was stepping up the production of Deere blocks
and other parts which it had to get out. Thus, Weltzin testified, on
the one hand, to planning greater production, and on the other, to
capping production. The inconsistency is blatant and is not explained
by Respondent's incredible and totally unsupported claim that the
capping was an attempt to lower insurance costs. That defense will be
discussed infra.
According to Weltzin, when he advised the employees of the rule
capping the incentive rate at 150 per cent, he told them that McCalley
and Bunger felt that the employees were getting too fatigued and the
quality of work on the blocks was suffering. He testified further that
he also told them that employees had been complaining about their wrists
and hands and the safety factor involved.
Robert Folkers testified that whereas there had been a shortage of
parts early in January, and management gave employees the option of
taking time off, by January 17 the company had a lot of parts stacked up
and a lot of things to do throughout the entire week. Despite this
fact, Respondent decided to put the cap on production, effective
immediately.
Folkers testified in support of Weltzin that when he advised the
employees of the 150 per cent cap, he mentioned the safety factor to
them. Folkers testified further that employees had come to him with
carpal tunnel, tendonitis and smashed hands, in effect, agreeing that
there was, in fact, a safety consideration.
Whereas Respondent's witnesses testified that Weltzin explained the
reasons for the institution of the 150 per cent cap, rank-and-file
employees denied that Weltzin gave any explanation. According to
employee Boyd Niedert, Weltzin told the second shift employees that
although they had previously been allowed to run as many blocks as they
could up to that date, thereafter they would be limited to 150 per cent
of base. Weltzin added that there was nobody there that was going to
make over $7.50 an hour; that $10.00 an hour was gone. Niedert
testified affirmatively that Weltzin gave no reason for the institution
of the 150 per cent cap rule, but it would appear that Weltzin's
statement that the $10.00 an hour wage was gone, implied that limiting
the employees income was the object. Prior to the institution of the
rule limiting production, employees frequently produced 200 per cent or
more of base.
According to Niedert, Weltzin explained that in order to keep
production down to the 150 per cent limit, he expected the employees
either to pace themselves over the entire shift or if they reached their
limit early, they could stand around on the line, at their work
stations, or push a broom. They were not to be permitted to leave the
shop or to just wander around the building.
Employee Hershel Hamilton testified that he attended the meeting of
the first shift employees where Weltzin read the rules. Like Niedert,
Hamilton testified that Weltzin gave no reason for the institution of
the 150 per cent cap rule. Specifically, he denied that Weltzin
mentioned safety in connection with the new rule.
Employee Steven Belz testified concerning Weltzin's meeting with the
first shift employees. According to Belz, Weltzin stated that
henceforth employees would be limited to 150 per cent of base rate,
which is $7.50 an hour and after reaching their limit, they were to quit
work and remain at their work stations. Belz specifically denied that
Weltzin offered any explanation for the institution of the 150 per cent
limitation on incentive production.
Other employees testified with regard to Weltzin's announcement of
the institution of the 150 per cent cap rule and none of them recalled
any explanation of the reason for the rule's implementation being given
by Weltzin. With regard to the disparity in testimony between Weltzin
and the rank-and-file employees, I credit that of the employees and find
that Weltzin did not give any reasons for the institution of the 150 per
cent cap rule. I find further, that if the safety of employees or
insurance costs or quality of product were really considerations,
Weltzin would have said so because the employees were about to suffer a
severe cut in wages and, assuming no animosity present, the naturally
sympathetic thing to do would be to try to explain the necessity for the
action. If, on the other hand, Weltzin and Respondent's management
intended the production cap as retaliation for the employees' union
organizing efforts, Weltzin might simply have said, "No more $10.00 an
hour" and, in fact, that is what he did say.
Moreover, McCalley testified that statistics concerning the nature
and number of injuries to Respondent's employees were recorded by the
company nurse. If these statistics would have reflected a basis for a
cause for concern, serious enough for Respondent to institute the 150
per cent incentive limit, and thus support Respondent's position,
Respondent would have, of course, introduced them and placed them in the
record. It did not do so. I therefore conclude that there was no
safety factor involved in Respondent's decision to institute the 150 per
cent limitation on incentive earnings. I find, on the contrary, that
the rule was discriminatorily motivated and a violation of the Act.
The eighth rule stated that employees found out of their work area
without a reasonable reason would be reprimanded. Weltzin testified
that after reading the rule to the employees, he explained that it did
not concern employees who left their work area to visit the rest room or
to ge a drink but those who left their work area to go down "to talk to
the next guy down the line" or to do things that did not involve the
work which they were supposed to be doing.
There was little testimony from rank-and-file employees with regard
to the requirement that they stay at their work stations while they were
supposed to be performing their duties -- grinding and chipping. No
employees testified that there was a change with regard to this
requirement and I find none. However, the requirement that the
employees stop working after producing 150 per cent of the incentive
base and stand at their work stations, producing nothing, was a change
in working conditions but was part and parcel of the violation which I
have already found in connection with the institution of the 150 per
cent limitation rule. The remedy I shall propose for the violation
found earlier will also remedy the rule requiring the employees to stand
idle at their stations after completing their 150 per cent incentive
quota.
The ninth rule states that employees returning late from breaks will
be reprimanded. According to Weltzin, the employees had a 30 minute
break and a 15 minute break. He testified that frequently they would
overstay their breaks by 10 or 15 minutes and he would speak to them
about it. Often he would have to go to the break room and amonish the
employees for overstaying their allotted break time. On January 17, he
read the rule which, though not previously in writing, had been in
practice prior thereto. I find no violation here.
The tenth rule stated that all blocks had to be stamped. With regard
to this rule, Weltzin testified that although certain parts had been
stamped before, it had not been done in all cases. Weltzin testified
that about the time the rules herein discussed were issued, management
felt a particular need "to get a handle on our quality problems." The
requirement that all blocks be stamped was merely a quality control
measure taken at this time to remedy problems the company had recently
been having with quality.
Weltzin testified that he told the employees on January 17 that the
blocks had to be stamped so that they could be traced back to the line
and to the individual employees who had worked on them so that any
problems with the blocks could be corrected. Without knowing which line
produced the flawed block, there was no way of telling who was
responsible for the workmanship; no way of correcting mistakes and
improving quality. According to two witnesses, Weltzin threatened to
discipline, or write up any employee who forgot to stamp a part.
With regard to this rule, I find that the stamping of parts had
always been required by Respondent, albeit to a lesser extent than
required under the January 17 rule. It was part of the job legitimately
required of employees and if an employee failed to do his job, it should
go without saying, that action could lawfully be taken against the
offending employee. I find that Respondent expanded the use of the
stamping procedure for the purpose of improving quality control, that it
threatened discipline to ensure compliance with its requirement and that
the ultimate object was a legitimate business aim and not retaliation
against its employees because of their union activity.
The eleventh rule states that if any employees are caught damaging
company property or parts because of their own recklessness, they will
be reprimanded. Weltzin testified that the occasion for issuing this
rule was the fact that certain employees were damaging the tooling or
the parts they were running. Employees had used pencil grinders to
write graffiti on a number of blocks which, if not caught, might have
resulted in a loss of business. All but one such block was discovered
before being shipped, but the one that was missed caused some problems
with the customer. Weltzin also testified to air hoses being
deliberately cut and nuts loosened on air grinders, actions which could
have resulted in serious injury. These matters were discussed with the
employees on January 17, according to Weltzin, and given as the reason
for the rule.
Weltzin testified that prior to January 1989 these kinds of problems
had not occurred. They began between January 1 and 17, thus,
necessitating issuance of the rule.
One employee testified that Weltzin stated that any employee caught
damaging company property would be terminated. Another, however,
testified that the subject was never discussed.
I find that the rule concerning the disciplining of employees for
damaging company property to be a legitimate one aimed at protecting the
company's property. The rule exists throughout industrial society
everywhere, whether in written form or not. It is implicit in all
employer/employee relationships. I find that Respondent's drawing
attention of employees to the existence of this rule had nothing to do
with the employees' union activity.
The twelfth rule concerned the reprimanding of employees who ran
parts below base rate. Weltzin testified that he explained this rule
mostly for the benefit of those employees who had been working for
Respondent for a number of weeks or months and producing at or above
base rate but who, just prior to January 17, suddenly began running
parts at below base rate. He explained to these employees that they
would have to get their production up to base rate because the company
could not afford to pay them more than they actually earned. He added
that they would be reprimanded if they failed to run the parts at base
rate.
Employee witnesses did not testify at length with regard to this
rule. Employee Derbyshire testified that Weltzin threatened employees
with termination if they failed to make rate. I credit Weltzin that he
used the term "reprimand."
The record is clear that there was always a base rate connected with
the incentive program, and one must assume that if an employee
consistently failed to make the base rate, his supervisor would talk to
him about it. I find that the rule, though not in written form, was one
that was in practice prior to the advent of the Union and its
reiteration on January 17 was not discriminatorily motivated.
The thirteenth rule which prohibited the use of alcohol and drugs and
the fourteenth rule which dealt with insubordination had been included
in the company's original written list of rules, published and in effect
long before the advent of the Union. Their inclusion in the new list
did not violate the Act.
As noted above, the decision to reduce the price paid to employees
for block production from $1.45 to $1.15 was made and announced prior to
January 17. However, the reduced price first went into effect that day
for most employees, since many of them did not work January 16, a
holiday. It is therefore natural that during the question period which
followed the meetings which Weltzin held on January 17 to discuss the
rules, the subject of the block price reduction would have been rought
up by concerned employees, even though it was not one of the rules, new
or old, which Weltzin read to them during the meetings proper. This
would account, in part, for the discrepancies and confusion in the
testimony of various witnesses trying to remember precisely when they
first heard about the block price reduction. When the subject was
brought up, Weltzin explained to the employees the basis for the
reduction.
The reduction in the block price meant that at $1.45 per block, the
employees had only to produce 112 to 115 blocks to reach their 100 per
cent base whereas at $1.15 per block, the employees then had to produce
about 140 blocks to reach their 100 per cent base. Thus, under the new
rate, the employees had to work longer to make the same amount of money.
The institution of the 150 per cent cap rule automatically limited
employees' income to $7.50 per hour, whereas prior to January 17,
Respondent's employees could and did produce 200 per cent or more of
incentive and thereby earned $10.00 or more per hour. Thus, the lawful
implementation of the block price reduction and the unlawful institution
of the 150 per cent limit on production rule had an immediate adverse
effect on the income of Respondent's employees. From $450 to $500 per
week, some employees' income dropped to $300 per week.
The institution of the 150 per cent rule affected the employees'
working conditions as well as their paychecks. Whereas prior to January
17, the employees reached their 100 per cent of base at 11 a.m. or noon,
then earned incentive pay the rest of their shift, after January 17 they
were forced to stop working shortly after noon, having reached 150 per
cent, and had to stand at their work stations, doing nothing, producing
nothing and earning nothing, unless, of course, they chose to, or were
told to, push a broom.
In addition to Weltzin's announced institution of new plant rules,
the complaint alleges that other incidents occurred on January 17 which
were violative of the Act. Thus, the complaint /20/ alleges that
Foreman Michael Johnson, on that date, threatened employees that
Respondent would relocate its operations as a reprisal for employees'
activities for and on behalf of the Union. This violation admitted by
Respondent at the hearing. The complaint /21/ further alleges that on
January 17, President McCalley and Vice President Bunger solicited
employees' complaints concerning working conditions, impliedly promised
that such complaints would be corrected, and threatened that it would
discontinue operations because of employees' activities for and on
behalf of the Union. This violation was likewise admitted by Respondent
at the hearing. Finally, on the same date, the complaint /22/ alleges
that Respondent, by its foreman, Weltzin, told employees, that
Respondent was not soliciting business because of employees' activities
for and on behalf of the Union. Respondent admitted this violation at
the hearing.
These violations, particularly the threats to relocate and to cease
soliciting business, support the earlier finding that the 150 per cent
cap on production was discriminatorily motivated. The reduction in
production would tend to prove that Respondent was serious when it
threatened to relocate and to cease soliciting new business. The
fulfillment of any of these threats would injure these employees
financially.
Late in the evening of January 17, after Weltzin had held his two
meetings with employees, Boyd Niedert asked employee Doug Akely for some
union cards which Akely had in his locker, advising him that he had a
couple of employees interested in filling them out. Akely supplied the
cards and Niedert distributed about six of them to fellow employees
during the remainder of the break which took place early in the morning
of the 18th. He explained to them that the first shift had started a
union organizing drive and had already held some meetings. He asked
those present to go along with the effort. One employee filled out the
card, signed it, had his signature witnessed and returned it to Niedert
who eventually gave it back to Akely.
John Ambrose, Niedert's supervisor at the time, had taken Niedert and
the other employees to the break room for their supper break. While
Niedert distributed the cards, Ambrose was standing about ten feet away,
talking to another table of employees. ambrose did not address Niedert
nor any of the employees to whom Niedert was talking, nor did he comment
on the distribution of the cards.
The employees to whom Niedert distributed the union cards were all
younger than Niedert, some with just four to six weeks of service with
Respondent. After the supper break, Ambrose took the employees back to
their work stations where they worked for three more hours to finish the
shift. They then worked the next shift and some, though not Niedert,
even worked the following shift.
Ambrose, in an affidavit supplied to the Board by him, acknowledged
seeing union authorization cards in the break room on January 18, but
denied witnessing anyone sign the cards. Nevertheless, the complaint
/23/ alleges, and Respondent admits, /24/ that Ambrose, on January 18,
threatened employees with layoffs because of their activities for and on
behalf of the Union.
The complaint further alleges, /25/ and Respondent admits, /26/ that
Foreman Michael Johnson, on January 18, threatened an employee with
layoffs by telling him that Respondent was no longer bidding on jobs as
a reprisal for its employees' activities for an on behalf of the Union.
I find each of these incidents violative of Section 8(a)(1) of the
Act and evidence supportive of allegations of violations of Section
8(a)(3).
Johnson, on January 18, made his sympathies and loyalties clear by
telling certain employees, including Boyd Niedert, that he had told the
Union to "screw off," that he did not need it. since Johnson had
attended the meeting at the union hall, in light of his sympathies, I
find it likely that he informed management of whatever he knew of
employees' union activities.
On January 19 Respondent laid off employees Michael Derbyshire, Larry
Latham and Boyd Niedert. The complaint /27/ alleges that the layoffs
were discriminatorily motivated and in violation of section 8(a)(1) and
(3) of the Act. Respondent denies the allegation. Though Respondent
admits that these three employees were laid off, it denies that the
layoff was discriminatorily motivated.
The evidence upon which General Counsel relies to prove its
allegation is substantial. With regard to Derbyshire the record
indicates that he was one of the three employees who first contacted the
Union on January 3. When Schneider told him to contact fellow employees
in order to schedule a meeting, he contacted 10 or 11 of them and
solicited their cooperation on behalf of the Union. After advising the
Union of his contact with the other employees, he contacted them a
second time to advise them of the union meeting scheduled for January
10. The record clearly reflects that Derbyshire was among the first and
most important activists.
When Johnson began to interrogate employees concerning their union
activity on January 9, and Ambrose, on the same date, wore a sign with
the caption "Down with the Union" and Weltzin, the following day,
threatened an employee with discharge because of his union activities,
it clearly indicated that Respondent was aware of its employees' union
activities and resented it to the extreme.
Derbyshire attended the union meeting on January 10, obtained union
buttons and wore them thereafter, thus specifically identifying himself
as a union adherent. Meanwhile, Respondent's supervisors continued
their campaign of interrogation and threats over the next several days,
including threats to discontinue operations.
When Ambrose warned employees on January 13 not to attend the union
meeting scheduled for the following day, Respondent not only violated
the Act but indicated that Respondent was probably aware of what went on
at the union meeting of January 10 because it was there that the meeting
for the 14th was scheduled. It is therefore more than likely that
Respondent was aware of Derbyshire's presence at the meeting of January
10 and of the extent to which he participated in it.
Despite mangement's warning that its employees should not attend the
meeting on January 14, more than 20 of them did so, including
Derbyshire, Latham and Niedert, who also signed union cards as did
everyone present. Since Michael Johnson also attened, there is no doubt
that their presence and activities there were reported back to
management as was the presence and activities of all of the employees
who attened the meeting.
When, on January 17, Johnson threatened employees that Respondent
would relocate its operations, and McCalley and Bunger threatened them
that Respondent would discontinue operations and Weltzin told them that
Respondent was no longer soliciting business, all because of the
employees' union activities, these members of management were not just
threatening the ringleaders but all of the employees engaged in the
organizational campaign, virtually the entire first shift, the
twenty-two rank-and-file employees whom it knew had attended the meeting
and signed union cards on January 14.
When, on January 18, Ambrose reiterated Weltzin's earlier threat that
Respondent was no longer soliciting business because of the employees'
organizational efforts he, as second shift supervisor, was adding to the
list of threatened employees, those on the second shift whom he had seen
accept union cards from Niedert the evening before.
The complaint /28/ alleges and Respondent admits, /29/ that on
January 19, McCalley and Bunger assembled Respondent's employees and
solicited their complaints concerning working conditions and impliedly
promised to correct such complaints, in order to discourage employees'
activities for and on behalf of the Union.
The complaint /30/ further alleges, and Respondent admits /31/ that
on January 19, Foreman Micahel Johnson told employees that Respondent
had rejected orders from customers and that it was going to discontinue
operations because of its employees' activities for on on behalf of the
Union.
On January 19, Derbyshire worked the first shift. At 2.p.m.. Weltzin
called him away from his job and took him to the breakroom. There, he
told Derbyshire to turn in his helmet, that he was being laid off for
lack of work. Derbyshire was third in seniority at the shop and neither
he nor the two employees senior to him had ever been laid off before.
Derbyshire testified that in previous layoffs, Respondent had always
laid off according to seniority. The subject of layoffs according to
seniority had been brought up on previous occasions of layoffs and
Derbyshire received the impression that this had been the practice. On
January 19, however, Respondent did not follow this practice in
Derbyshire's case nor in the case of the two other employees laid off
that day.
After being laid off, still on January 19, Derbyshire went to
McCalley's office to talk to him about it. When he entered the office,
McCalley was walking toward a filing cabinet, just five or six feet
away. McCalley neither said anything nor acknowledged Derbyshire's
presence. Derbyshire asked McCalley why he had been laid off. McCalley
remained silent and did not look at Derbyshire. Derbyshire said, "Well,
Doug, this has never happened this way before. Why did you do it?"
McCalley replied tersely, "That's the way it goes." Derbyshire left.
Shortly after January 19, several of Respondent's employees had a
meeting with McCalley and after the meeting was over asked him why he
had laid off Derbyshire when he was near the top of the seniority list.
McCalley replied that the company was laying off the slower chippers and
Derbyshire was one of them.
The second employee laid off on January 19 was Larry Latham.
Evidence concerning Latham and his layoff was entered into the record
chiefly by stipulation. Thus, it was stipulated that Latham had been
hired on June 30, 1988. In January, 1989 he was working on one of the
block lines. He was laid off on January 19 at the end of his shift,
which was the first of the day. As noted earlier, Latham attended the
union meeting on January 14 and signed a card.
It was further stipulated that as of January 19, Latham had a hiring
date earlier than some full-time block line employees who were retained
on first shift and who were not laid off before the time of his recall
at the end of January. He also had a date of hire earlier than some
full-time employees who were transferred from the second shift to first
shift on or about January 19, and who remained on the first shift, and
not laid off before Latham was recalled.
Boyd Niedert is the third employee alleged to have been laid off on
January 19 for discriminatory reasons. He wore union buttons every day
at work after obtaining them at the January 14 union meeting where he,
like the others, signed a union card. As noted above, Niedert had
distributed union cards to certain second shift employees during break
early in the morning on the 18th. Later that day there was a layoff of
a number of recently hired employees, apparently by seniority.
Thereafter, at the 8 o'clock second shift supper break, Niedert asked
Ambrose why certain employees had been laid off. He commented that it
seemed awfully funny to him that three quarters of the guys to whom he
had given union cards the night before, had been laid off. He added
that he thought the company was wrong laying them off. Ambrose replied
that Respondent was not a union shop, that the company did not have to
go by seniority to lay off and that there was going to be some more
layoffs.
On January 19, as Niedert was getting ready to go into the locker
room before the second shift, he was stopped by Ambrose who asked him if
he wanted to work that night or just go home since it was his last day.
Niedert stated that if he was being laid off, he migh as well go home.
Niedert testified that he did not know if there were other second
shift employees who were laid off, but he did know that two employees
with less seniority than he were kept on, one or both being transferred
to the first shift later on.
Further, with regard to seniority, Niedert testified that unlike
Derbyshire, he had been laid off once before. Presumably this was the
previous October. On this occasion, Weltzin took Niedert to the
maintenance room to let him know about the layoff. According to
Niedert's very credible testimony, Weltzin told him that he hated to let
him go because his work was a lot better than that of many of the other
employees, but he had to lay Niedert off by seniority. He added that he
did not want to do it but Niedert had less time than anyone else. At
that time, Niedert was on the first shift and he and the other two first
shift employees laid off along with him were the most junior of any
employees on the first shift. Niedert did not know if Weltzin was
referring to plant seniority or shift seniority. The layoff in October
lasted 2 1/2 to 3 weeks and when called back, Niedert was put on second
shift.
Employee Hamilton also testified concerning the procedure used by
Respondent on occasions of previous layoffs and stated that it was by
seniority. Moreover, according to Hamilton, Weltzin specifically stated
that the company laid off by seniority.
With regard to the layoffs of Derbyshire, Latham and Niedert on
January 19, I find that General Counsel has established a prima facie
case. The three were all involved in the union orgainzational campaign
and this fact was known to Respondent's supervisory staff. Antiunion
animus was clearly established and the timing of the layoffs, coming at
the height of the union campaign, supports General Counsel's case. In
addition, I credit General Counsel's employee witnesses that testified
that previous layoffs had been in accordance with seniority whereas the
layoffs of January 19 were not. I also credit General Counsel's
witnesses that testified that by January 19 there was plenty of work to
be performed, but also find that if there was not, it was because
Respondent actually carried out the threats of its supervisors that new
orders would not be filled and would, on the contrary, be rejected
because of the union activities of Respondent's employees. I find, in
accordance with the numerous allegations of 8(a)(1) contained in the
complaint and equally numerous admissions thereto, that Respondent's
agents threatened Respondent's employees with layoff because of their
union activity. I also find that General Counsel has proven a prima
facie case that Respondent's threats were carried out with the layoff of
Derbyshire, Latham and Niedert on January 19.
Once the General Counsel has established a prima facie case, the
burden shifts to Respondent to show that Derbyshire, Latham and Niedert
would have been laid off regardless of their union activities. /32/
Respondent called several witnesses to testify to the reasons why the
three alleged discriminatees were laid off. Certain members of
management testified that the layoffs in January basically followed the
procedure used in previous layoffs. Weltzin testified that the on
January 18 and 19 were necessitated by the fact that John Deere had
geared up, that therefore there were insufficient parts to keep
everybody busy. This being the case, according to Weltzin, McCalley and
Bunger requested Weltzin to lay off a certain number of employees and to
decide himself, which employees should be laid off.
Weltzin testified that in choosing employees for layoff in January he
followed the same criteria he used furing the layoff which had occurred
October 21, 1988 and which lasted until November 10, 1988. He did not
choose according to seniority in January any more than he had the
previous October. Rather, he chose to keep those employees whose
quantity and quality of production and whos ability to run different
parts was superior to that of other employees. On January 18 he laid
off three to five newly hired employees and on January he laid off the
three alleged discriminatees.
Three supervisors were called to support Weltzin's testimony. Gary
Nie testified that in October employees were laid off in accordance with
the types of parts being run. Employees had experience running only
certain parts. If an employee ran out of the parts which he knew how to
run, he was laid off because he did not know how to run the other parts
which were available. Nie, who was a supervisor at the time, stated
that employees were unhappy that Respondent did not lay off according to
seniority.
On cross-examination, however, Nie admitted that neither Bunger nor
McCalley ever confided in him how they chose employees for layoffs nor
conferred with him on the subject. He further admitted that the layoff
in October 1988 had nothing to do with him and that his testimony on the
subject of how management chose employees for layoff was merely an
assumption on his part.
Folkers, a supervisor, who was a rank-and-file employee in October
1988, testified that the layoff, which lasted until mid-November, pretty
much followed seniority; that one or two employees had been laid off
out of seniority if their performances were not good enough to keep
them.
Todd Salisbury, another supervisor, who was a rank-and-file employee
at the time of the October 88 layoff, testified that layoffs then were
determined by which employee was running what parts and what parts were
needed. Salisbury was not laid off at the time and did not notice if
employees were irritated because seniority was not followed.
Bunger testified, like Weltzin, that the procedure followed during
the January layoff was the same as the one used the previous October and
that the determination as to which employees would be laid off was made
by McCalley and Weltzin, based on Weltzin's recommendations. Bunger
denied that he had much input as to which employee was going to be laid
off.
Bunger explained that Weltzin's recommendations were considered most
important because he was on the floor with the employees most of the
time and could best determine which employee was doing the best and most
productive work and who was most suited for what job.
Production is most important, according to Bunger, when determining
which employees to lay off. Production records for each employee are
kept by the company. Each employee writes down on his job card
precisely how many pieces of a given part that employee has run. Since
Bunger, in the usual course of his job function, handles these job
cards, he has a good sense of which employees are most productive and
occasionally will indicate to McCalley or Weltzin that a certain
employee, not previously chosen for layoff, should be considered for
layoff since his dollar output is not as great as that of other
employees.
McCalley testified basically in agreement with Bunger and Weltzin.
He stated that the October '88 layoff was the only other layoff that the
company had had prior to January 1989 and that the procedure followed
and the criteria used for determining which employees to lay off was the
same. McCalley further testified that employees from both the first and
second shifts were laid off on January 18 and 19 and that some employees
were transferred to the first shift from the second shift which was
eliminated. He explained that the layoff was casued by the fact that
the company did not have enough customer parts to justify two shifts.
McCalley testified that the layoffs were necessary because Respondent
did not have the parts to run. The laid off employees, he said, were
specialists on the parts which were no longer in supply and Respondent
had nowhere to employ them. It was hoped that in a few weeks when parts
arrived, the laid off employees could be recalled. McCalley added that,
as a service company, Respondent had no control over when parts would be
delivered and he could not keep the idle employees just standing around
until parts arrived. He testified that there was no intention not to
recall the laid off employees because it would take too long to break in
new employees.
McCalley agreed with the testimony of Weltzin and Bunger to the
effect that Respondent depended on Weltzin to make the decision on
layoffs because he was out on the floor and was faimliar with the
employees' work and with the available work load.
McCalley testified that the newly hired employees were laid off on
January 18. They were, he said, not put to work on Pontiac blocks
because of their inexperience and because the customer supplying Pontiac
blocks was particular. These employees were put on other parts and when
Respondent ran out of these other parts, the new employees were laid
off. They were also laid off because they were the least productive.
On January 19, Derbyshire, latham and Niedert were laid off McCalley
testified, because Respondent ran out of the type of parts on which they
had been working.
According to the undisputed credited testimony of employee Hershel
Hamilton, a day or two after the layoff of the three alleged
discriminatees, he asked Johnson why Derbyshire had been laid off when
he was at the top of the seniority list. Johnson winked at Hamilton and
said, "We both know why."
Nie testified that beginning January 19 and continuing until the end
of January, only the first shift worked and there was no second shift.
This, he said, was because of a shortage of parts to chip and grind.
Hamilton, on the other hand, testified that after the layoffs, he saw
another employee drilling suitcase weights on several occasions, a job
normally done by Derbyshire and Hamilton.
I find with regard to the layoff of Derbyshire, Latham and Niedert
that Respondent has failed to carry its burden of showing that they
would have been laid off reagardless of their having participated in
union activities. Not only do I find the testimony of General Counsel's
witnesses more convincing and credible than that of Respondent's
witnesses, but I also find that with regard to a number of issues,
Respondent failed to offer documentation in its possession which, if it
supported Respondent's position, should have and would have been placed
in the record.
Thus, Respondent's assertion that historically it never followed
seniority during layoffs could easily have been proven by introducing
personnel files into the record indicating dates of hire of employees
laid off in October 1988. Failure of Respondent to produce and offer
into the record these documents, gives rise to the presumption that the
documents, if produced, would not have supported Respondent's case but
would do the opposite, and I so find.
Further, Respondent's position that in January it chose to keep
junior men working while laying off more senior employees because the
junior employees were working on available parts while the senior
employees did not have any parts available upon which to work, could
easily have been proven by introducing into the record, the time cards
which reflect the type of part which employees worked on prior to and
after the layoff. Respondent's failure to offer these records raises
the presumption that if they had been introduced, they would not have
supported Respondent's position but would do the opposite, and I so
find.
Respondent takes the position that it kept employees working
regardless of their seniority if their production was greater than that
of other employees. However, Respondent failed to offer the time cards
which reflect the number of pieces each employee produced each day.
Respondent's failure to produce this evidence in support of its
position, warrants the presumption that if it were introduced, it would
not support Respondent's position but would do the opposite, and I so
find.
I therefore conclude that Derbyshire, Latham and Niedert were laid
off on January 19 in retaliation for their union activities in violation
of Section 8(a)(1) and (3).
Though there had been two shifts prior to the layoff of January 18
and 19, about the time of that layoff the Respondent eliminated its
second shift. It laid off certain of the second shift employees and
transferred the remainder to the first shift.
On January 23, the Union filed its petition for a representation
election and the following day held its third orgainzational meeting at
the union hall with Respondent's employees, 18 of whom attended.
Following the union meeting, of January 24, and on the same day, Foreman
John Ambrose interrogated an employee concerning the number of employees
who had attended the meeting and threatened the same, or another,
employee that Respondent would discontinue operations if the employees
voted for union representation.
Both the interrogation and threat were alleged in the complaint /33/
as violative of Section 8(a)(1) and both allegations were admitted at
the hearing by stipulation. I find both incidents violative of the Act,
as alleged.
The complaint alleges /34/ that Respondent, on January 25, violated
Section 8(a)(1) of the Act by its Foreman Johnson, who interrogated an
employee about that employee's union activities and desires. The
Respondent admitted, /35/ and I find, the violation.
Toward the end of January, McCalley called Derbyshire and told him
that he had some work available for him on the third shift. Derbyshire
had never worked on third shift prior to his layoff. Indeed, there had
not been a third shift in existence immediately prior to the layoff.
Derbyshire accepted the recall offer and began working on the 10:30 pm.
to 7a.m. shift with John Ambrose as his supervisor. Niedert was also
recalled.
At the time of his return, Derbyshire noted that engine blocks were
being run both on the first and third shifts. The third shift had just
one block line running with only two men on the line instead of the
usual four. Derbyshire automatically attempted to fill in on the block
line since he had experience on the blocks but Ambrose told him that
McCalley had said that Derbyshire was not to work on the blocks. When
Derbyshire asked why, Ambrose replied that he did not know, that
McCalley had written these instructions on a note for him. Ambrose then
assigned Derbyshire to chip and grind axles and miscellaneous parts.
The axles were bigger and a different type than any that he had run
before and although it was incentive work, he was only able to produce
at 50 per cent intially. No one else on the third shift was assigned
the same job that Derbyshire was doing. Eventually he was able to meet
the incentive requirements.
After being called back to work on third shift, after the first
night's work, Derbyshire went to McCalley's office and asked McCalley
how long he was going to be on third shift. McCalley replied that he
did not know, that Derbyshire was lucky to have a job. He then accused
Derbyshire of trying to run the company and said that Derbyshire's
attitude was poor. Derbyshire defended himself, stating that he thought
things should be fair, and that "it wasn't meant that way."
I find that, in the conversation between McCalley and Derbyshire,
described immediately above, McCalley was accusing Derbyshire of taking
over the running of Respondent's business by helping organize on behalf
of the Union; that the reason that he was put on third shift rather
than first was because of his union activity. I find, further, that
when McCalley told Derbyshire that he was lucky to have a job, he was
telling him that, but for circumstances beyond his control, he would not
be recalling Derbyshire at all.
Based on the circumstances and this discussion, I find factually that
Respondent's recalling Derbyshire to the third shift rather than to the
first shift was discriminatorily motivated and that his assignment to
the heavy axle work rather than to the block work was also
discriminatorily motivated. I do not, however, find violations with
respect to either the shift assignment or the work assignment inasmuch
as they were not alleged as such. I do rely upon them, however, as
evidence of continued animosity toward employees who were active on
behalf of the Union.
The factual finding that Respondent's treatment of Derbyshire, after
his recall, was discriminatorily motivated raises the question: "Why,
then, did Respondent bother to recall Derbyshire at all?" Unfortunately,
the record does not supply a definitive answer to this question but does
supply three possible answers. First, Respondent hired counsel and
received its first legal advice on January 20. Second, the charge in
case 18-CA-10771 was filed on January 30 and Respondent may have been
advised that if the layoff were determined to have been a violation of
the law, it could cost Respondent substantial backpay unless it rehired
Derbyshire. /36/ Finally, Respondent was party to a contract with the
agency which administers the Job Partnership Training Act. The Act
provides that if an employer hires an employee in a disadvantaged
category, the agency will pay half of the employee's wages, up to 11
weeks. The Act also provides, however, that if one of these
disadvantaged employees is laid off, he must be rehired before any new
employee is hired, otherwise the agency will discontinue paying part
wages. The record is unclear as to whether or not Derbyshire was a
participant in this program. In any case, for whatever reason, I find
that Respondent continued to bear animosity toward Derbyshire because of
his involvement with the Union, but nevertheless felt constrained to
rehire him.
On February 3, Foreman Michael Johnson told an employee that
Respondent was laying off senior employees and replacing them with
newly-hired employees because of the employees' union activities. The
same day Weltzin told employees that Respondent was not soliciting
business because of their union activities. Both of these statements
were alleged in the complaint /37/ and were admitted at the hearing. I
find them both violative of Section 8(a)(1) of the Act.
On February 3, as though in partial fulfillment of Johnson's threat,
Respondent hired seven new employees, mostly as chippers. /38/ Within
the next three weeks, Respondent hired 11 more new employees. According
to Respondent's witnesses, although the company had three shifts going
and employees were working overtime, Respondent was still falling behind
in production and so had to hire additional employees. The 150 percent
cap was still in effect.
Hamilton asked Weltzin and McCalley, about this time, why Respondent
was hiring new employees when he had been told earlier that there were
going to be no new jobs and no bidding for new jobs. McCalley and
Weltzin both replied basically that it was none of Hamilton's business,
that there was work there and there was more work coming in.
About February 6 McCalley finally recalled Niedert. This was several
days after he began hiring new employees. That McCalley chose to employ
new, inexperienced help rather than recall Niedert is further evidence
of discriminatory motivation.
The complaint /39/ alleges that Respondent discharged its employee
Howard Howe on February 20 because of his union activities. The record
indicates that Howe worked Sunday, February 12 through Friday morning,
February 17.
Howard Howe was a known union activist among Respondent's employees.
He attened the union meeting on January 14 and signed a union
authorization card on that occasion. Since this meeting was also
attended by Michale Johnson, an admitted supervisor, it is certain that
Howe's attendance was known to Respondent. Following the meeting, Howe
attempted to get other employees to sign union cards both at their homes
and at the shop. After January 14, Howe conspicuously wore union
buttons every day at the shop. I conclude that Respondent was well
aware of his union sympathies.
On the morning of Friday, February 16, during the third shift, Howe's
supervisor, John Ambrose, approached a group of employees which included
Howe and told them that because Respondent was behind schedule, there
was going to be overtime beginning that evening. Howe objected that he
could not work because he had already made plans with his wife to go to
Des Moines over the weekend to celebrate their second wedding
anniversary. Ambrose instructed Howe to talk to McCalley about the
matter. Howe sough out McCalley and told him what he had told Ambrose.
McCalley merely stated that he "could really use" Howe but said nothing
more. Howe rejoined that he had already made plans and could not change
them. McCalley did not reply. He did not instruct Howe that he had to
work the overtime, nor did he threaten Howe with discipline if he failed
to work overtime. He did not state that overtime was mandatory. /40/
Howe did not work overtime that Saturday.
When Weltzin reported to work Sunday morning, Ambrose told him about
Howe's failure to work overtime. Weltzin testified that Howe's failure
to work the assigned overtime hurt the company because running a four
man block line with just three men was not as efficient. He emphasized
that everyone who was not sick worked overtime that weekend,
particularly on the block line, Howe being the exception.
I do not doubt that Respondent could have used Howe on the evening in
question but find that his absence from the block line was not as
serious a matter as Weltzin portrayed. After all, just a few weeks
before, when Derbyshire first returned to work and joined two co-workers
on the understaffed block line, management immediately took him off the
block line, letting it continue to run understaffed so that he could be
assigned more difficult work at which he could not make rate.
When Howe returned to work on his next regular shift, Sunday February
19, his supervisor, John Ambrose, asked him if he had a doctor's excuse
to cover his absence on Saturday. Howe replied that he did not, that
McCalley knew the reason that he had not worked overtime. Ambrose
stated that he had been told by Bunger that if Howe did not have a
doctor's excuse, to let him go. Howe argued briefly that Ambrose knew
why he had not worked overtime on Saturday. He then went to his locker,
gathered his belongings and left.
After his discharge, Howe applied for unemployment benefits at Job
Services of Iowa. He supplied that agency with a statement concerning
the circumstances of his discharge. His statement was basically the
same as his later testimony at the Board hearing. Howe subsequently
received a few payments but these were stopped after Respondent
succesfully appealed Howe's case and Howe then had to repay the agency
the money he had received earlier.
The appeal took the form of a telephonic hearing in which an
administrative law judge listened to Howe and McCalley explain their
positions. McCalley emphasized the importance of the overtime which
Howe failed to work and the fact that Hose had missed work on one
previous occasion. Howe offered no defense but merely agree to
McCalley's description of events. Neither the question of
discriminatory motivation nor the fact of Howe's union activity were
considered. The ALJ found against Howe. He appealed the administrative
law judge's decision to the Employment Appeal Board but lost.
On February 24 Howe visited the plant and asked McCalley to be
reinstated. McCalley told Howe that he woud like to rehire him, that he
had never had any complaints about his work but he could not do so
because of the union negotiations. Precisely what McCalley meant by
this statement is not clear from the record. However, the statement
does clearly establish a connection, in McCalley's mind, between Howe's
employment, or lack thereof, and the Union.
The complaint /41/ alleges and I find that Howe's discharge was
discriminatorily motivated. I make this finding based on the following
considerations: Howe was active in the union campaign. He attended a
union meeting, spoke in favor of the Union to fellow employees both at
the shop and away from it and openly wore union buttons. Respondent was
fully aware of Howe's prounion sympathies because Johnson attended the
same meeting that Howe attended and so was aware of his attendance and,
of course, Howe's wearing of the union buttons at work, in front of
management, proclaimed his union sympathies. Supervision's threat to
replace senior, read prounion, employees with newly hired employees,
because of their union activities was an accurate forecast of exactly
what happened in Howe's case. The discharge of Howe, at this time, if
effective, would have precluded his casting a ballot for the Union, in
the forthcoming representation election, scheduled for March 10.
Respondent's insistence that Howe's presence was vital to his four-man
Pontiac block team lacks credibility in light of its treatment of
Derbyshire whom they removed from an already understaffed team upon his
return from layoff. Finally, application to Howe of the "doctor's
excuse" rule, which I have found to have been discriminatorily
implemented in violation of Section 8(a)(1), is unlawful /42/ and
requiring a doctor's excuse for an absence due to celebrating a wedding
anniversary is stupid.
But for the fact that Howe was a known union adherent who would
certainly cast his ballot for the Union, Respondent would not have
discharged him for celebrating his wedding anniversary rather than
working one shift of overtime. /43/
The complaint /44/ alleges that Respondent on March 8 discharged
employee Steve Belz because of his union activities. The record reveals
that Belz was an active union adherent. He attended at least two union
meetings including the January 14 meeting where he signed the sign-in
sheet immediately after Michael Johnson, then sat next to him during
that meeting. Belz also signed a union card at that meeting.
Thereafter, he wore union buttons every day to work. Obviously,
Respondent had knowledge of Belz's prounion sympathies.
Belz had been employed by Respondent since March 1988, most recently
as a chipper and grinder. On March 7, the date of his discharge, Belz
rode to work with fellow employee Brian Lampman because Belz no longer
had a driver's license. At 11:30 a.m., Belz and the other employees on
his Pontiac block team, on the first shift, reached the 150% production
mark and, under the rule still in existence, stopped production.
Weltzin told Belz to remain at his work station and push broom or do
"odd stuff." Belz swept around his work station and generally cleaned up
the area. The other members of his team just sat at their work
stations.
There was a half hour break at noon after which the employees went
back to their work stations and Belz pushed a broom up and down the main
floor. Bob Folkers, a close friend of Belz's, had been assigned as
supervisor over Belz and his fellow workers on the block line just two
or three days before. On the afternoon of the 7th he did not assign any
work to Belz so Belz and his co-workers were expected to sit around,
sweep or do "odd things" until 3:30 p.m. when the shift was scheduled to
end.
At about 1:30 p.m. Lampman came over to Belz and informed him that he
had gotten permission from Sid Bunger to leave work early because he was
not feeling well. Belz then went over to Folkers and asked him if he
could leave early because his ride was leaving. Folkers replied that
Belz could not leave just because his ride was leaving. /45/ He then
offered to give Belz a ride himself, something which he had done
numerous times before, after the shift was over. He then sent Belz back
to work by telling him to "find something to do." Belz left the
maintenance room where he had been talking to Folkers. The latter
assumed Belz was returning to his work station after being refused
permission to leave. Instead, Belz picked up his tools, left the floor
and the plant with Lampman. Half an hour later, Folkers went to look
for Belz and found out that he had gone for the day.
Belz, at the time of his discharge, was the second most senior
employee and it is undisputed that he was one of Respondent's most
productive employees, turning out quality work in great quantity. His
attendance was good and he received no warnings and few criticisms since
working for Respondent. Nevertheless, with regard to this incident,
according to Folkers, he was not treated any differently than any other
employee. It was company policy, at the time, to keep the employees at
the plant until the shift ended even though they may have met the 150%
cap hours earlier. No one was permitted to leave simply because the
production cap had been reached. The employees, rather, were expected
to sweep, band or unband blocks or just remain at their work stations.
On March 8, Belz again rode to work with Lampman. When he arrived,
Folkers told him to go see Bunger. He did so and was told to go get
Weltzin and Folkers. When he returned with the two supervisors, Bunger
told him he was fired for leaving without filling out his time card.
Belz complained about not receiving a written warning before being
terminated but Bunger noted that the matter was too serious to warrant a
mere warning. He instructed Weltzin and Folkers to take Belz to his
locker and clean it out. They did so and Belz left the plant. Later,
Belz returned to the plant to pick up his check. He asked Bunger for a
good work recommendation. Bunger agreed to provide one noting that
there was nothing wrong with Belz's work, that he had "just stepped out
of line."
I find with regard to Belz's termination that although Respondent was
undoubtedly happy to get rid of another prounion vote, it would have
terminated any employee who walked off the job in the face of a direct
order to remain. I recommend that the allegation be dismissed. /46/ An
employee's union activity does not protect him from discharge for
legitimate cause. /47/
Three days after the March 10 election, Respondent issued a
memorandum announcing that it was going to two shifts and because
material was accumulating and production had to increase, it was going
to open up incentive earnings. In effect, this meant removal of the
150% cap. The memorandum made no mention of injuries on the job or
insurance costs, the ostensible reasons for implementing the 150% cap
rule. Weltzin, however, testified that he discussed the reasons for
implementing the cap and removing it on March 13 and at that time
mentioned injuries in that context when he addressed the employees. I
do not credit Weltzin with respect to this testimony.
The activities of Respondent set forth above, occurring in connection
with its operation, described above, have a close, intimate and
substantial relationship to trade, traffic and commerce among the
several states and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
Having found that Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act, I shall recommend that
it be ordered to cease and desist therefrom and to take appropriate and
affirmative action designed to effectuate the policies of the Act. In
particular, as I have found that employees Michael Derbyshire, Larry
Latham, and Boyd Niedert were discriminatorily laid off and employee
Howard Howe was discriminatorily discharged, I shall recommend that
Respondent be required to offer them full and immediate reinstatement,
with backpay to be computed in the manner prescribed in F.W. Woolworth
Co., 90 NLRB 289 (1950) with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). /48/
I shall further recommend that employees be made whole, in similar
fashion, for any losses suffered by them, as a result of the
implementation of new company rules on January 17.
1. Respondent is an employer engaged in commerce within the meaning
of Section 2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent interfered with, restrained or coerced its employees
in the exercise of the rights guaranteed them in Section 7 of the Act
and committed unfair labor practices in violation of Section 8(a)(1) of
the Act by:
(a) Unlawfully interrogating its employees as to their
activities on behalf of the Union.
(b) Threatening an employee with discharge because of
employees' activities for and on behalf of the Union.
(c) Threatening that employees' wages would be reduced in order
to discourage employees' activities for and on behalf of the
Union.
(d) Threatening to discontinue operations in order to
discourage employees' activities for and on behalf of the Union.
(e) Directing that a group of employees not attend a union
meeting.
(f) Announcing the institution of new plant rules and
instituting such plant rules as a reprisal for employees'
activities for and on behalf of the Union.
(g) Threatening to relocate its operations as a reprisal for
its employees' activities on behalf of the Union.
(h) Soliciting employees' complaints concerning working
conditions and impliedly promising that such complaints would be
corrected, in order to discourage employees' activities for and on
behalf of the Union.
(i) Telling employees that Respondent was not soliciting
business because of employees' activities for and on behalf of the
Union.
(j) Threatening an employee with layoffs by telling the
employee that Respondent was no longer bidding on jobs as a
reprisal for employees' activities for and on behalf of the Union.
(k) Threatening employees with layoffs because of employees'
activities for and on behalf of the Union.
(l) Telling employees that Respondent had rejected orders from
customers because of employees' activities for and on behalf of
the Union.
(m) Telling an employee that Respondent was laying off senior
employees and replacing them with newly-hired employees because of
employees' activities for and on behalf of the Union.
(n) Engaging in the conduct specified below in paragraph 4.
4. Respondent engaged in unfair labor practices and committed unfair
labor practices violative of Section 8(a)(3) of the Act by:
(a) Laying off Michael Derbyshire, Larry Latham and Boyd
Niedert because of their activities for and on behalf of the
Union.
(b) Discharging Howard Howe because of his activities for and
on behalf of the Union.
Upon the foregoing findings of fact, conclusions of law, and the
entire record and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended: /49/
Respondent DBM, Inc., its officers, agents, successors and assigns
shall:
1. Cease and desist from discouraging membership in,
activities on behalf of, or sympathies towards International
Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, or any other labor organization by:
(a) Unlawfully interrogating its employees as to their
activities on behalf of the Union.
(b) Threatening an employee with discharge because of
employees' activities for and on behalf of the Union.
(c) Threatening that employees' wages would be reduced in order
to discourage employees' activities for and on behalf of the
Union.
(d) Threatening to discontinue operations in order to
discourage employees' activities for and on behalf of the Union.
(e) Directing that a group of employees not attend a union
meeting.
(f) Announcing the institution of new plant rules and
instituting such plant rules as a reprisal for employees
activities for and on behalf of the Union.
(g) Threatening to relocate its operations as a reprisal for
its employees' activities for and on behalf of the Union.
(h) Soliciting employees' complaints concerning working
conditions and impliedly promising that such complaints would be
corrected, in order to discourage employees' activities for and on
behalf of the Union.
(i) Telling employees that Respondent was not soliciting
business because of employees' activities for and on behalf of the
Union.
(j) Threatening an employee with layoffs by telling the
employee that Respondent was no longer bidding on jobs as a
reprisal for employees' activities for and on behalf of the Union.
(k) Threatening employees with layoffs because of employees'
activities for and on behalf of the Union.
(l) Telling employees that Respondent had rejected orders from
customers because of employees' activities for and on behalf of
the Union.
(m) Telling an employee that Respondent was laying off senior
employees and replacing them with newly-hired employees because of
employees' activities for and on behalf of the Union.
(n) Laying off employees because of their activities for and on
behalf of the Union.
(o) Discharging employees because of their activities for and
on behalf of the Union.
(p) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed to them by
Section 7 of the Act.
2. Take the following action designed to effectuate the
policies of the Act:
(a) Offer Michael Derbyshire, Larry Latham, Boyd Niedert and
Howard Howe immediate reinstatement to their former positions of
employment, or if such positions no longer exist, to substantiall
equivalent positions without prejudice to the seniority or other
rights or privileges previously enjoyed, and expunge from its
files any reference to the unlawful layoffs/discharge and notify
them in writing that this had been done and that the
layoff/discharge will not be used against them in any way.
(b) Make Michael Derbyshire, Larry Latham, Boyd Niedert and
Howard Howe whole for any loss of pay that they may have suffered
as a result of their layoffs/discharge in the manner set forth in
"The Remedy" section of this Decision.
(c) Revoke all rules implemented on January 17, found herein to
have been discriminatorily motivated, and make whole all employees
for any losses suffered by them as a result of the unlawful
implementation of said rules.
(d) Preserve and, upon request, make available to the Board or
its agents for examination and copying all payroll records, social
security payment records, time cards, personnel records and
reports and all other records necessary or useful in complying
with the terms of this Order.
(e) Post at its facility in Cedar Falls, Iowa, copies of the
attached notice marked "Appendix". /50/ Copies of this notice on
forms provided by the Regional Director for Region 18, shall,
after being duly signed by Respondent, be posted by it immediately
upon receipt thereof and be maintained by it for 60 consecutive
days thereafter in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that such notices are not
altered, defaced or covered by other material.
(f) Notify the Regional Director for Region 18, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Dated, Washington, DC February 28, 1991
/s/ William F. Jacobs
William F. Jacobs
Administrative Law Judge
We hereby notify our employees that the National Labor Relations
Board has found that we violated the law and has ordered us to post this
Notice.
The Act gives all our employees these rights:
To organize themselves;
To form, join, or help unions;
To bargain as a group through representatives they choose;
To act together for collective bargaining or other mutal aid or
protection; and
To refuse to do any or all of these things.
In recognition of these rights we hereby notify our employees that:
WE WILL NOT unlawfully interrogate you as to your activities on
behalf of the Union.
WE WILL NOT threaten you with discharge because of your activities
for and on behalf of the Union.
WE WILL NOT threaten you that your wages will be reduced in order to
discourage your activities for and on behalf of the Union.
WE WILL NOT threaten to discontinue operations in order to discourage
your activities for and on behalf of the Union.
WE WILL NOT direct you not to attend union meetings.
WE WILL NOT announce the institution of new plant rules nor institute
such rules as a reprisal for your activities for and on behalf of the
Union.
WE WILL NOT threaten to relocate our operations as a reprisal for
your activities for and on behalf of the Union.
WE WILL NOT solicit your complaints concerning working conditions and
impliedly promise that such complaints will be corrected, in order to
discourage your activities for and on behalf of the Union.
WE WILL NOT tell you that we are not soliciting business because of
your activities for and on behalf of the Union.
WE WILL NOT threaten you with layoffs by telling you that we are no
longer bidding on jobs as a reprisal for your activities for and on
behalf of the Union.
WE WILL NOT threaten you with layoffs because of your activities for
and on behalf of the Union.
WE WILL NOT tell you that we have rejected orders from customers
because of your activities for and on behalf of the Union.
WE WILL NOT tell you that we are laying off senior employees and
replacing them with newly-hired employees because of your activities for
and on behalf of the Union.
WE WILL NOT lay you off because of your activities for and on behalf
of the Union.
WE WILL NOT discharge you because of your activities for and on
behalf of the Union.
WE WILL NOT in any other manner, interfere with, restrain or coerce
you in the exercise of rights guaranteed you by Section 7 of the Act.
WE WILL offer Michael Derbyshire, Larry Latham, Boyd Niedert and
Howard Howe immediate reinstatement to their former positions of
employment, or if such positions no longer exist, to substantially
equivalent positions without prejudice to the seniority or other rights
or privileges previously enjoyed, and expunge from our files any
references to their unlawful layoffs or discharge and notify them in
writing that this has been done and that their layoff or discharge will
not be used against them in any way.
WE WILL make Michael Derbyshire, Larry Latham, Boyd Niedert and
Howard Howe whole for any loss of pay that they may have suffered as a
result of their layoffs or discharge, with interest.
WE WILL revoke all rules implemented on January 17 found to have been
discriminatorily motivated, and make whole all employees for any losses
suffered by them as a result of the unlawful implementation of said
rules.
DBM, Inc.
(Employer)
Dated . . . . By (Representative) (Title)
This is an official notice and must not be defaced by anyone.
This notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material. Any questions concerning this notice or compliance with its
provisions may be directed to the Board's Office, 110 4th St. -- Room
316, Minneapolis, MN 55401-2291, Telephone (612) 348-1793.
/1/ Hereinafter called the Respondent.
/2/ Hereinafter called the Union.
/3/ Hereinafter all other dates are in 1989 unless otherwise noted.
/4/ Respondent's Motion to Strike General Counsel's Reply Brief is
hereby denied.
/5/ General Counsel's Motion to Correct the Record, unopposed, is
hereby granted.
/6/ The complaint alleges and the answer admits that the Board has
jurisdiction herein and that the Union is a labor organization within
the meaning of the Act.
/7/ January 1, 1989 fell on a Sunday and employees of Deere and of
Respondent were given January 2 off.
/8/ Hamilton's testimony concerning his reasons for calling the Union
are not credited.
/9/ A number of witnesses for General Counsel denied ever seeing the
notice or attending the meeting discussed herein. Nevertheless, I
credit Weltzin. Weltzin's explanation that the memorandum bearing the
unpopular announcement had been torn down by the following morning is
credited.
/10/ Paragraph 5(a).
/11/ Respondent takes the position that its withdrawal of answers to
certain 8(a)(1) allegations was motivated solely by a desire to avoid
unnecessary litigation expenses and that General Counsel should not be
permitted to use the consequentially resulting admissions as support for
the 8(a)(3) allegations. I find that Counsel for the General Counsel
never gave any indication that he would consider joining in such an
agreement. Counsel for Respondent's reasons for withdrawing his answers
are irrelevant. The effect is the same, i.e. an admission.
/12/ Ambrose's affidavit, which contains this information, and which
was submitted as General Counsels exhibit #20 is hereby admitted as an
admission against iterest.
/13/ Paragraph 5(b).
/14/ Complaint, paragraph 5(c). Answer to allegation withdrawn at
hearing.
/15/ Complaint, paragraph 5(d). Answer to allegation withdrawn.
/16/ Complaint, paragraph 5(e). Answer to allegation withdrawn.
/17/ Complaint, paragraph 5(f).
/18/ Paragraph 5(f).
/19/ Joe's Plastics, 287 NLRB 210 (1987). Frigid Storage, Inc., 294
NLRB No. 50 (1989).
/20/ Paragraph 5(g).
/21/ Paragraph 5(h).
/22/ Paragraph 5(i).
/23/ Paragraph 5(k).
/24/ By stipulation at the hearing.
/25/ Paragraph 5(j).
/26/ By stipulation at the hearing.
/27/ Paragraph 6(b).
/28/ Paragraph 5(l).
/29/ By stipulation at hearing.
/30/ Paragraph 5(m).
/31/ By stipulation at the hearing.
/32/ Wright Line, 251 NLRB 1083 (1980); enf'd 662 F2d 899 (CA 1,
1981); certiorari denied 455 U.S. 989 (1982).
/33/ Paragraphs 5(g) and 5(r) respectively.
/34/ Paragraph 5(n).
/35/ By stipulation at the hearing.
/36/ The precise date of Derbyshire's reinstatement is not clear from
the record so no conclusion is possible as to the effect of the of the
charge on the decision to recall Derbyshire.
/37/ Paragraphs 5(o) and (p) respectively.
/38/ The complaint alleges no violation in connection with the hiring
of new employees. Although the Respondent and Union had signed a
Stipulation for Consent Election on February 2, the agreed upon payroll
ending date was February 1, and the election was not affected by the new
hires.
/39/ Paragraph 6(e) and 6(h).
/40/ Testimony to the contrary is not credited.
/41/ Paragraph 6(e).
/42/ Murphy Oil, USA, Inc., 286 NLRB 1039 (1987).
/43/ Wright Line, supra.
/44/ Paragraph 6(g) and (h).
/45/ Belz's version of this conversation differs markedly from
Folker's version which appears above in the text. Where the testimony
of Belz differs from that of Folkers, I have credited Folkers.
/46/ Wright Line, Inc., supra.
/47/ Klate Holt Co., 161 NLRB 1606 (1966); A&T Mfg. Co. 276 NLRB
1184 (1985).
/48/ See generally, Isis Plumbing and Heating Co., 138 NLRB 716
(1962).
/49/ If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived
for all purposes.
/50/ If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United State Court of Appeals Enforcing an Order of the
National Labor Relations Board."
304 NLRB No. 144
FAIR OAKS ANESTHESIA ASSOCIATES, P.C. and FAIR OAKS C.R.N.A.
ASSOCIATION
Case 5-CA-21994
D-2292
Fairfax, VA
On June 13, 1991, the General Counsel of the National Labor Relations
Board issued a complaint alleging that the Respondent has violated
Section 8(a)(5) and (1) of the National Labor Relations Act by refusing
the Union's request to bargain following the Union's certification in
Case 5-RC-13473. (Official notice is taken of the "record" in the
representation proceeding as defined in the Board's Rules and
Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343
(1982).) The Respondent filed its answer admitting in part and denying
in part the allegations in the complaint.
On August 27, 1991, the General Counsel filed a Motion for Summary
Judgment. On August 30, 1991, the Board issued an order transferring
the proceeding to the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response on September 13,
1991.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.