On November 20, 1990, Administrative Law Judge J. Pargen Robertson
issued the attached decision and on December 4, 1990, and he also issued
an erratum to that decision. The Respondent filed exceptions and a
supporting brief and the General Counsel filed an answering brief to the
Respondent's exceptions.
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, /1/ and conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the recommended Order of
the administrative law judge and orders that the Respondent, Champion
International Corporation, Courtland, Alabama, its officers, agents,
successors, and assigns, shall take the action set forth in the Order.
Dated, Washington, D.C. May 28, 1991
Mary Miller Cracraft, Member
Dennis M. Devaney, Member
Clifford R. Oviatt, Jr., Member
NATIONAL LABOR RELATIONS BOARD
'Footnotes to the Decision and Order'
/1/ The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an
administrative law judge's credibility resolutions unless the clear
preponderance of all the relevant evidence convinces is that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
Keith Jewell, Esq., Birmingham, Al , for the General Counsel
Denis E. Cole, Esq., Stamford, Ct., for the Respondent.
ERRATUM
The Decision which previously issued, included an error on page 17,
line 14, where the word "now" was printed incorrectly as "not." It is
hereby ordered that the paragraph at page 17, lines 13-16, is corrected
to read:
In view of my finding that newsletter 83 constitutes protected
activity, I shall now consider Respondent's argument that it was
justified in suspending Tommy Scogin because Scogin engaged in
misconduct.
Dated Washington, DC December 4, 1990
J. Pargen Robertson
Administrative Law Judge
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
CHAMPION INTERNATIONAL CORPORATION and TOMMY SCOGIN, AN INDIVIDUAL
Keith Jewell, Esq., Birmingham, Al., for the General Counsel.
Denis E. Cole, Esq., Stamford, Ct. , for the Respondent.
10-CA-24746
DECISION
J. PARGEN ROBERTSON, Administrative Law Judge. This case was heard
in Decatur, Alabama on October 2, 1990. The charge was filed on bay 7,
1989. The complaint, which alleges that Respondent engaged in conduct
violative of section 8(a) (1) of the National Labor Relations Act (Act)
, issued on June 27, 1990.
Respondent admitted that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act; that it is engaged in
the manufacture of paper from wood pulp at its place of business in
Courtland, Alabama; and that, during the past calendar year, a
representative period, it sold and shipped from its Courtland facility,
finished products valued in excess of $50,000 directly to customers
located outside the state of Alabama.
I make the following findings on the basis of the entire record, my
observation of the demeanor of witnesses and after consideration of
briefs filed by Respondent and General Counsel.
The material events stemmed from activities of Respondent's employee
Tommy Scogin on November 16, 1989. An employee from another work area
gave Scogin a pro-union newsletter. Scogin made xerox copies of the
newsletter and placed those copies in areas where they could be picked
up by other employees. Because of that action, Respondent suspended
Scogin for 30 days.
Tommy Scogin testified that he holds the position of 33/34 Coated
Inspector and, as such, he does quality control work in both labs 33/34
and 30/31. Scogin has two lockers, one in lab 33/34 and one in lab
30/31.
Scogin is Financial Secretary-Treasurer for Local 193 of the United
Paperworkers International Union (Union)
Several different editions of a pro-union newsletter, Between the
Fence Posts, also known as Big Ed Potts, were written by an anonymous
author. The record revealed that it was common practice for employees
to be given one or more copies of the latest edition of the newsletter
for copying and distribution to other employees.
Danny Morris an employee of Respondent and president of Local Union
193, testified that Respondent employs some 1250 hourly employees at its
Courtland, Alabama facility and that "give or take a hundred or more,"
editions of Between the Fence Posts have been distributed. When asked
by whom had the newsletters been distributed, Morris testified:
Different people. Most of the time, we didn't know how they
(the newsletters) got in our department.
Sometimes maybe a member of the Maintenance Department would
drop by with some copies, put them in break areas. Sometimes
foremen in our department.
Scogin testified that he did not know the employee that gave him the
newsletter, (Between the Fence Posts, number 83) , on November 16.
Scogin made some 70 to 75 copies of that newsletter and placed those
copies for other employees to pick up at their leisure.
Respondent, was told by a secretary, Donna Peck, that she had seen
Scogin going into one of Respondent's xerox rooms and that she had found
what appeared to be the original copy of "Between The Fence Posts,"
number 83, on the copying machine.
On November 19, 1989, Respondent suspended Tommy Scogin.
Subsequently, he was given the following letter:
On Thursday, November 16, 1989, you were seen by another
employee, making copies on the Xerox machine located in the office
behind No. 31 Paper Machine. This employee, subsequently found
the original of "Between the Fence Posts", No. 83, in the machine
and a copy of this document in the output tray. This original
document, together with a signed statement detailing the above
events, was given to Charles Adams by the employee on November 17,
1989.
A meeting was held with you on Sunday morning, November 19,
1989. Present at this meeting were:
Mr. Danny Morris, President of Local 193
Mr. Eddie Story, Vice President of Local 193
Mr. Hillman Locklayer, Q.C. Superintendent
Mr. Bill Mann, Q.C. Foreman
Mr. Dave Huffman, Labor Relations Supervisor
Mr. Charles in. Adams, Human Resources Manager
You were advised of the reason for the meeting, and asked for
your version of the events surrounding your possession of the
original "Between the Fence Posts," No. 83. You stated that it
along with copies of No. 83, had been given to you by someone
"...in Cutsize...". You were unable to identify this person
either by name or description. This exchange purportedly took
place sometime after 3:00 p.m. on November 16, 1989, in the
vicinity of the No. 33 Paper Machine Coater. You did state that
you had run "...70-75..." copies of No. 83, and had put the
copies on a table in the No. 33 Q.C. Lab. You further stated that
you had at times run copies of other "Between the Fence Posts"
documents, using originals to make copies on occasion. You denied
that you were the author of No. 83, or for that matter, any of
the "Between the Fence Posts" Bulletins. You also denied being
"Ed Potts." At the conclusion of the meeting you were suspended
pending further Company investigation.
We subsequently began our investigation in an effort to verify
your account of the events of November 16, 1989. This
necessitated another meeting with you on November 21, 1989.
Present at this meeting were: Mr. Emory Barnette, International
Representative of the UPIU; Mr. Danny Morris, Mr. Dave Huffman
and Mr. Charles in. Adams. At this meeting you advised us that
(1) "Cutsize" really meant to you Converting/Shipping/Warehousing
area, and (2) the only copies you ran on No. 31 Machine Xerox
were copies of a football pool, the copies of No. 83 being run on
the Xerox machine located in the No. 33 Machine complex.
Following this meeting, employees on "A" shift and "D" shift in
Cutsize, Roll Finishing, Shipping and Warehousing were interviewed
on November 24, 1989, November 28, 1989 and November 29, 1989.
The purpose of the interviews was to try to locate the employee
who allegedly gave you the original of No. 83 and thus
substantiate your version of what transpired. Although 63
employees were interviewed, we could find no one who would admit
to being around the No. 33 Coater on the afternoon of November 16,
1989, and further, no one would would (sic) verify giving you the
original of No. 83. At the completion of our investigation, we
reviewed all of the results of the investigation and we have come
to the following conclusions:
1. You acknowledge that you did run a substantial number of
copies of No. 83 of "Between the Fence Posts" and place them so
they were distributed. These copies were run from an original
document, i.e., the original of Bulletin No. 83. You were a
principal source in the distribution of Bulletin No. 83.
2. You further acknowledge that you have been instrumental in
the distribution of other editions of "Between the Fence Posts"
including, at times, making copies from originals. Further, you
indicate you are unable to identify by either name or description
the persons who gave you these original documents.
3. Various editions of "Between the Fence Posts" reproduced
and distributed by you contain material that is derogatory,
abusive, offensive and insulting to specific, named employees.
Some of this material contains ethnic slurs. Other materials
advocates actions and activities designed to adversely impact mill
operations. None of these kinds of materials are protected or are
legally or contractually permitted.
4. You had been counseled by Boyd Arnold about being out of
your work area, and Boyd had specifically mentioned to you that
you needed your supervisor's permission to go from the No. 33 Q.C.
area to the No. 31 Q.C. Lab. You did not secure Bill Mann's
approval to go to the No. 31 Q.C. Lab on November 16, 1989.
Based upon these conclusions, we find that you have violated
the following Rules for Employee Conduct:
Rule No. 2
Rule No. 22
Rule No. 25
Rule No. 33
We in no way disagree with your right or the right of any other
employee to express, in an appropriate manner, his or her opinion
of collective bargaining negotiations or Company policies.
However, by your own admission you left your work area and
utilized company equipment to reproduce and distribute which have
directed derogatory, abusive and defamatory insults and ethnic
slurs at various individuals and encourage inappropriate actions
against the Company by individual employees. Were there
additional evidence to indicate that you were an author of the
statements, termination would be the appropriate penalty. We have
decided, that you will receive a disciplinary lay-off of one (1)
month to extend from your initial suspension pending investigation
until Monday, December 18, 1989; you will be permitted to return
to work on that date on your regular shift. It is our expectation
that you will not be involved in any activities of a like nature
in the future. Moreover, you should understand that any further
violation of Company rules, or any other unacceptable behavior,
will result in your termination.
Employees Scogin, Charles Mitchell Compton and Delane Bradford,
testified that until November 16, 1989, Respondent customarily permitted
employees to use its copying machines to copy personal items including
religious items such as church bulletins, betting pools and issues of
Between The Fence Posts. Until it disciplined Scogin, no other employee
had been disciplined for using Respondent's copying machines to copy
personal items even though the evidence illustrated that Respondent's
supervisors have often times witnessed employees copying personal, not
business related, materials.
Respondent contended that Scogin engaged in unauthorized use of
Respondent's equipment and that Scogin was out of his work area on
November 16, when he was copying number 83 of Between The Fence Posts.
Boyd Arnold testified that while he was Scogin's temporary foreman in
place of Bill Mann, he talked to Scogin several days before November 16,
about Scogin being out of his work area. Scogin was told by Arnold,
that he was not to leave his specific work area without permission.
Scogin admitted that Arnold did talk to him.
As to what constituted Scogin's work area, his immediate supervisor,
Shift Supervisor and Foreman Bill Mann, testified that in November 1989,
Scogin's work area was the 33/34 Lab. Mann also testified that after he
returned to work and learned that Arnold had told Scogin not to leave
his work area without permission, he told Scogin that Scogin had
permission to go to the 31 Lab. Mann admitted that by going to his
locker in the 30/31 Lab, Scogin would not have gone outside his work
area.
Respondent offered three written disciplinary action statements
regarding disciplinary actions against other employees.
On July 20, 1990, employee Doug Rhodes, was observed in an area that
was not his normal work area. When he was asked why he was in the area,
Rhodes "directed profanity at (the inquiring supervisor) and made an
insulting and obscene gesture toward him." Although Rhodes did have
permission to be out of his work area on that occasion that fact was
unknown to the inquiring supervisor. Rhodes was given a 15 day
suspension. In a letter announcing Rhodes suspension, Respondent
mentioned Rhodes' conduct toward the supervisor, a prior oral reprimand,
excessive absenteeism in 1989 and 1990, and a prior discharge from which
Rhodes was reinstated on November 4, 1987.
On November 3, 1989, employee Houston Goines was suspended for thirty
days after a supervisor observed a heated exchange between Goines and
another employee. The two employees admitted to the supervisor that the
heated exchange was precipitated by physical contact between them.
Goines was advised of his suspension in a letter which set out the
grounds including the fact that Goines had received a written reprimand
on April 7, 1989, for "threatening, intimidating, coercing other
employees; interfering with the activities of another employee in the
performance of his work; or directing abusive, vile or insulting
remarks to or about another employee on Company premises at any time;"
and a three day suspension on May 22, 1989 for failure to follow the
instructions of his supervisor.
Employee Don West was suspended for 30 days by letter dated January
14, 1986. The letter stated that West had been warned repeatedly during
the past few months regarding absenteeism; that he received a written
reprimand on November 12, 1985 and a five day disciplinary suspension of
November 22, 1985. According to the letter, West admitted coming to
work in "an unrested condition which has prevented you from performing
your job as effectively as you are capable of doing." The letter
continued,
On Thursday, January 9, 1986, you had a friend call at 6:55
a.m. and state that you had been arrested for DUI and would not be
released from jail until 7:30 a.m. Your friend requested a day of
vacation for you, but that was denied. Your friend was told to
advise you to call in upon your release from jail. You called at
8:55 a.m., and you were instructed to report to work. You arrived
at 10:00 a.m. A meeting was held with you, Keith Williams, Rufus
Goines and I attending. During the meeting, you stated again that
you were arrested and elaborated that you were probably taken in
because the police were two young officers and you "got smart with
them". You said that your blood alcohol content was .011.
Because of inconsistencies in your story, local police departments
were contacted. They had no record of your arrest.
With Rufus Goines (Union Steward), Keith Williams, Larry
Andrews and me present, you were contacted by phone on Friday,
January 10, 1986. During that phone conversation, you admitted
that you were not arrested on the previous day and that you had
made up the story because you had been out late and you were in no
shape to come to work. A follow-up meeting was scheduled.
CREDIBILITY:
Tommy Scogin:
Scogin appeared to testify in a straightforward manner. Nothing was
brought out on cross which appeared to show inconsistencies in Scogin's
testimony. As to one issue, the question of Scogin copying a football
pool, Scogin's pre-hearing affidavit did not include discussion of that
issue.
Respondent, in its brief, argued that Scogin's failure to include the
football pool in his pretrial affidavit, shows that Scogin concocted
that story after he gave his affidavit to an NLRB agent. However, as
shown at page 3, above, Scogin's suspension letter shows that Scogin
told Respondent that he had copied a football pool on Respondent's Lab
30/31 xerox machine on November 16, 1989. According to the suspension
letter written by Hillman Locklayer, Respondent's Superintendent of
Quality Control, Scogin told Respondent that he had copied a football
pool on the Lab 30/31 xerox machine during a meeting on November 21,
1989.
Therefore, it is apparent that Scogin had not, as Respondent argued,
concocted the football pool matter at a later date.
I was impressed with Scogin's demeanor. Moreover, he appeared to
readily admit matters which were obviously harmful to his position. For
example he readily admitted that he had made some 70 - 75 copies to the
number 83 newsletter on Respondent's copying machine. I found Scogin to
be a candid witness and I credit his testimony.
Charles Adams:
I found Adams' testimony to be believable in most areas. However,
Adams testified that Tommy Scogin admitted copying and distributing one
specific Between the Fence Posts newsletter, number 21, in addition to
number 83. That testimony is not consistent with the testimony of
anyone else that attended those meetings regarding Scogin's suspension,
on November 19 and 21, 1989.
Tommy Scogin specifically disputed that testimony.
Respondent's superintendent of quality control, Hillman Locklayer,
the official that signed Scogin's suspension letter, testified that the
only specific newsletter he knew that Scogin had copied and distributed,
was newsletter number 83.
The above shows a serious problem with Adams' testimony. Due to that
and my observation of Adams' demeanor, I am unable to credit Adams'
testimony to the extent it conflicts with credited evidence.
Donna Peck:
Peck's testimony appeared candid. I was impressed with her demeanor.
However, I do not find that Peck's conclusions regarding her
observations were necessarily supported by those observations. For
example, Peck observed Tommy Scogin using the xerox machine in the lab
30/31 xerox room. Subsequently, "about maybe 10 minutes after Peck left
the copying room she heard the xerox machine cut off. Peck did not see
Scogin during that "10 minutes" period and she did not see him leaving
the xerox room.
Peck then went into the xerox room and discovered an original of
Between the Fence Posts newsletter number 83 on the xerox machine. The
xerox machine was flashing "Check Paper Tray 1" and Peck, after
complying with the machines instructions, noticed that the machine
produced copy number 43 out of 50 planned copies. Later, Tommy Scogin
stuck his head in the door to the xerox room. Peck concluded from those
observations that Scogin had been making 50 copies from an original of
number 83 of the newsletter.
Scogin did not deny that he had made copies of newsletter number 83.
However, Scogin testified that he made those copies on the lab 33/34
xerox machine rather than on the lab 30/31 xerox machine. Scogin also
testified that he made some 70 to 75 copies, rather than 50.
Scogin admitted using the lab 30/31 xerox machine when observed by
Donna Peck, but, according to Scogin, he was copying a football pool
given him for copying by employee Delane Bradford. Bradford
corroborated Scogin in that regard,
Well, I was working in the 33/34 Lab and Tommy (Scogin) said he
was going to his locker at the 30/31 Lab and if I needed anything,
and I asked him to run off some copies of that (football pool)
while he was over there.
Q: Why didn't you make those copies (yourself) in Lab 33/34?
A: I had gone in there to make the copies, or gone down the
hall and the door was closed to the foreman's office where the
copying machine is. I looked through the window and there was
several foremen and, I think, a superintendent or two in there.
And they were having a meeting of some sort, so I didn't want to
disturb them or anything like that.
A close examination of Peck's observations, as opposed to her
conclusions, shows that both her observations and Scogin's testimony
could be correct. It is possible that while Peck was out of the xerox
room for the time recalled by her, that Scogin finished his copying of
the football pool, left the xerox room, and another employee entered and
made copies of the number 83 newsletter, leaving when the machine ran
out of paper.
The record evidence illustrated that it is customary for numerous
employees to copy editions of the Between the Fence Posts newsletter on
Respondent's machines.
It appears that the above determinations are not critical to this
case in view of Scogin's admissions that he did make copies of edition
number 83 of the newsletter. Nevertheless, I am unable to find that
Peck's conclusions were sound in view of the other possibilities
mentioned above. I do find that she testified truthfully regarding her
observations on November 16.
Danny Morris:
Danny Morris appeared to testify in a straightforward manner. I was
impressed with his demeanor. There was nothing in his testimony which
caused me to question his honesty. I credit his testimony.
Charles Mitchell Compton, Jr:
Mitchell Compton appeared to testify truthfully. There were no
apparent conflicts between his testimony on direct and his testimony on
cross examination. Respondent did not rebut Compton's testimony. I was
impressed with Compton's demeanor. He is currently employed by
Respondent. I credit the testimony of Compton.
Delane Bradford:
Delane Bradford, who is currently employed by Respondent, appeared to
testify in a straightforward manner. His testimony was unrebutted and
there were no apparent conflicts in his testimony. I was impressed with
his demeanor and I credit his testimony.
FINDINGS:
Before November, 1989, the Respondent and the Union, United
Paperworkers International Union, and its Locals numbers 193, 1137 and
1161, had been party to collective bargaining contracts. The last of
those contracts indicated an expiration date of June 16, 1989. That
contract was extended while the parties negotiated toward a new
agreement. On October 29, 1989, Respondent gave 10 days notice that it
would not agree to further extension and the contract expired. Against
that background, several editions of the newsletter, Between the Fence
Posts, were published during the fall, 1989.
Between the Fence Posts was a newsletter written by an anonymous
person or persons. Several editions of the newsletters were received in
evidence. Those editions illustrate that the newsletters were written
from a pro-union standpoint. The newsletters routinely complained about
Respondent's actions as being, allegedly, against the interest of
employees and the Union.
The essential questions behind the complaint allegations center
around the contention that Respondent suspended Tommy Scogin because
Scogin made copies of newsletter number 83 and placed those copies out
for other employees.
The first issue for consideration is one of whether by copying and
placing out for distribution, newsletter 83, Scogin was engaged in
activity which falls within the scope of the protection of section 7 of
the National Labor Relations Act.
Section 7 of the Act, 29 U.S.C. section 157, guarantees to
employees the right to engage in concerted activities such as the
distribution of literature. If the literature bears a
sufficiently close relationship to the employees' wages and
working conditions, or "otherwise (seeks to) improve their lot as
employees through channels outside the immediate employee-employer
relationship", Eastex, Inc. v. National Labor Relations Board,
437 U.S. 556, 565, 98 S.Ct. 2505, 2512, 57 L.Ed.2d 428 (1978),
it is protected. "(E)mployee appeals to legislators to protect
their interests as employees are within the scope" of section 7
protection. Id. 437 U.S. at 566, 98 S.Ct. at 2512-13.
Interference with employee circulation of protected material in
nonworking areas during off-duty periods is presumptively a
violation of the Act unless the employer can affirmatively
demonstrate the restriction is necessary to protect its proper
interest. Republic Aviation Corp. v. National Labor Relations
Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945)
As recognized by the ALJ, Union Carbide unquestionably had the
right to regulate and restrict employee use of company property.
The Board's decision in this case does not challenge that basic
property right.
Herein, substantial evidence demonstrated that the reprimand
was delivered to Keil not because she had violated company policy,
but rather, solely in response to her pro-union activities. * * *
Union Carbide Corp. v. N.L.R.B., 714 F.2d 657, 663, 664 (6th Cir.
1983).
The Circuit Court in Union Carbide, supra at 661, also held that
notices posted by employees on a company bulletin board are protected by
the Act "even if abusive and insulting." See also Mitchell Manuals, Inc.
280 NLRB 230 (1986); Trover Clinic, 290 NLRB 61 (1986).
* * * decisions reflect the general rule that when employee
conduct "exceeds the bounds of legitimate campaign propaganda or
is so disrespectful of the employer as seriously to impair the
maintenance of discipline," the discipline meted out to the
offending employee, even in the drastic form of discharge, does
not constitute an unfair labor practice. N.L.R.B. v. Blue Bell,
Inc., 219 F.2d 796, 798 (C.A.5). "An employee, by engaging in
concerted activity, does not acquire a general or unqualified
right to use disrespectful epithets toward or concerning his or
her employer. (ibid.) See also Maryland Drydock Co., v. N.L.R.B.,
183 F.2d 538, 539 (C.A. 4), to the effect that distribution of
literature on Company premises "hold(ing) officers and supervising
officials up to ridicule and contempt, and which has a necessary
tendency to disrupt discipline in the plant," is unprotected.
Accord: Indiana Gear Works v. N.L.R.B., 371 F.2d 273 (C.A. 7).
Southwestern Bell Telephone Co., 200 NLRB 667, 670 (1972).
In Southwestern Bell, supra, the Board found that employees activity
in wearing t-shirts with the slogan "Ma Bell is a cheap Mother," was
unprotected.
The Board, in Caterpillar Tractor Co., 276 NLRB 1323, 1324 (1985) ,
found that the below described cartoon of a supervisor involved
unprotected activity:
The figure's face has a porcupine snout, long fangs, and
pointed ears. The figure's head is bulbous (perhaps crowned with
a large "afro"). The figure has a grossly obese trunk, clearly
defined male genitals, and chicken-like legs and feet. The figure
is urinating on a much smaller stick figure labelled "common low
life worker." The large figure wears a tie on which is written,
"I'm The Boss.'" The distorted portion of the large figure's trunk
is labelled, "FAT. MANAGEMENT BULGE." The large figure is
emitting what are supposed to be five turds, separately labelled
"W-O-K-E-R." The figure is surrounded by the following statement:
Hello, I'm Ray Kemper the Razorback. Oink.
I'm so fat because I don't do a goddam thing except
carry a clipboard. And fuck with you lower class.
Oink. I'm on a 5-year plan. I might be a fat slob, but
I'm mean.
If you fuckers worked harder I could get fatter and
have
more fun drinking and spending my profit share.
I need more production so I can buy more food to
eat.
I'm hungry.
I'm mean, fat and hungry.
If it was up to me I'd fire the whole shop.
Burp. You basterds (sic) talk to each other and
I'm
going to forcefully stop it.
If I find out who put this picture up of me I'll
fire
him.
Oink. Fuck the workers.
In Sahara Datsun, 278 NLRB 1044 (1986) , the Board considered
allegations a former employee made to a third person, in that case a
bank that provided loans for the employer's customers to buy the
employer's product. There the Board stated,
In NLRB v. Electrical Workers IBEW Local 1229 (Jefferson
Standard Broadcasting), 346 U.S. 464 (1953), the Supreme Court
held that even if employees are arguably engaged in concerted
activity, if the nature of their actions involves a malicious
attack on the product or reputation of their employer, their
activity loses the protection of Section 7 of the Act and their
subsequent discharge is for "cause" within the meaning of Section
10(c). In Allied Aviations Service Co. of New Jersey, the Board
held that communications by employees to third parties who do
business with the employer do not lose the Act's protection as
long as the communications are related to a legitimate, ongoing
labor dispute and they do not constitute "a disparagement or
vilification of the employer's product or its reputation." 278
NLRB at 1045, 1046 (footnotes omitted).
See also, United Aircraft Corp., 134 NLRB 1632, 1634 (1961); and
Government Employees, 278 NLRB 378, 385 (1986).
Under Sahara Datsun, the applicable test includes questioning whether
the communication constitutes "a disparagement or vilification of the
employer's product or its reputation."
A circuit court, in Midstate Tel Corp. v. NLRB, 706 F.2d 401 (2nd.
Cir. 1983) , held that an employer did not violate the Act by banning
t-shirts emblazoned "with a trademark, which was depicted as cracked in
three places, and the words "I SURVIVED THE MIDSTATE STRIKE OF
1971-75-79."
However, in Maryland Hospital Center, 293 NLRB No. 136, slip opin.
pp. 27, 28 (1989), the Board found a I prohibiting "derogatory
attacks," was unlawful.
Also, in Mack's Supermarkets, Inc., 288 NLRB 1082, 1098 (1988) , the
Board sustained a holding of a violation where the employer prohibited
its employees from wearing pro-union baseball caps.
The Board has found that activities including letters to a newspaper
and testimony before Congress, were protected even though the employee
attacked his employer's integrity. The Administrative Law Judge found
that those attacks do not
appear to be "so disloyal, reckless, or maliciously untrue" as
to deny Sever the protection of the Act. While it is perhaps true
that Japanese representatives of Respondent would find the letter
more offensive than Respondent's American counterparts, it has not
been demonstrated by Respondent that, absent obvious racist or
other malicious slurs, ethnic sensitivities or subjective reaction
alone are determinative of the Act's protection. Here, Sever is
asserting his belief that the Respondent is not acting in an
honorable fashion vis-a-vis its relationship with its employees.
Concepts which the word "honorable" encompasses, such as honesty,
fairness, and integrity, are customarily called into play,
implicitly or explicitly, during labor-management relationships.
Such rhetoric is understood to be a part of strike situations
where the very livelihoods of individuals and the profitability of
companies are being determined. And in such matters the Board
permits a great deal of latitude. (footnotes omitted) Alaska Pulp
Corporation, 296 NLRB No. 155, slip opin. p. 24 (1989).
As shown above, the evidence available to Respondent illustrated that
Tommy Scogin was shown to have been involved with only one specific
newsletter. Scogin admitted that he had copied and distributed other
newsletters but he testified that he did not know which other specific
newsletters he had copied and distributed. As shown above, I have
credited evidence showing that Respondent was not aware of any specific
newsletters, other than number 83, and that evidence illustrated that,
unlike the situation in Alaska Pulp, supra, Scogin was not responsible
for the writing of the newsletter. That particular newsletter, number
83, includes the following language:
BETWEEN THE FENCE POSTS
HELLO CHAMPEEN EMPLOYEES, THIS IS BIG ED POTTS, and I got
another message. The title of this one is, "THE TEST." Champeen
has put the hourly people and our UNION to "THE TEST," and we've
met the challenge, and passed "THE TEST," and now it's time for
Champeen to fold. Wednesday Champeens negotiating team went to
meet with Andy Sigler and to deliver a message. "EITHER SHIT OR
GET OFF THE POT, "because our UNION ain't backing down, only
"PROFITS" is backing down. Champeen is amazed at the fortitude of
the UNION at Courtland. Champeen brought Goon Guards and that
didn't work, Champeen fenced off the hourly parking lot, built
trailers, and that didn't work. Champeen terminated, then
implemented, and that didn't work. People just kept laughing,
smiling, working and passed "THE TEST." People's attitudes
changed, but differently than Champeen and predicted. Champeen
wanted us raging mad, so we would SABOTAGE and DESTROY COMPANY
PROPERTY, but that didn't work. People got the "SO WHAT"
attitude. Pressure has been put on by Bob Marlewski to vote.
Bob's morning meetings notes always said, "get with your Union
representatives and ask to vote," but we passed that "TEST" too.
Every move that Champeen made the Union was there to meet the
challenge, and we passed all Champeen "TEST." COLLECTIVELY WE WILL
WIN. . .PERIOD. . Bob Marlewski said, "Ask me NO question and
I'll tell you NO LIE, but ask me a question and I'll LIE." Watch
your area's, and when you see BE&K or the Brown & Roots SCABS
using hoses, shut them down, because that's your job. This is
some more of Champeens intimidation. We have got to do our own
work, and shut down foremen and supervisors too. In all this time
of trouble, Champeen has managed to do "ONE" good deed. Instead
of laying off or firing employees at Canton North Carolina,
Champeen gave them jobs at Courtland, if they were willing to
transfer. I've been told that they are good UNION people, and we
need good Union people. We can meet every challenge Champeen
throws our way, and we-will-win. We took "THE TEST." Carl
"Wrankle Head" Jones in shipping and warehousing must have some
pull at Roanoak, because he says his sources say the vote was
overwhelming in favor of the contract. Bob Marlewski said the same
thing, but I haven't seen either one of them produce a vote count,
so it looks like they LIED, like Lonnie Boy Skiles. Carl "Wrankle
Head" Jones wants to get the F.B.I. to look for me, so Carl can
personally fire me. Well, I hate to tell you "Wrankle Head" but
you' Il have to get in line behind Phil Luzier, and others. Maybe
Carl "Wrankle Head" Jones wants to buy-off the F.B.I., since
Champeen can't buy-off the Union. We can stand Champeens "TEST"
and we won't back down. When Champeen wants to negotiate, we'll
be at the table, but everything we ask for in the beginning is now
DOUBLED. PARTICIPATIVE MANAGEMENT/THE FAMILY PLAN/ FLEXIBILITY/
and TRAINING will-not be a part of the package. PREMIUM SUNDAY
will-not-buy PARTICIPATIVE MANAGEMENT/ THE FAMILY
PLAN/FLEXIBILITY/ or TRAINING and if Champeen still wants that
junk, then we don't "VOTE." MY SENIORITY IS NOT FOR SALE, AT ANY
PRICE. When Champeen terminated, and then implemented Champeen did
us a favor. (1.) We're still working, (2.) If we get locked out
for any reason other than SABOTAGE, then we get back-pay for all
the time we was off work, so Champeen is in a NO-WIN situation, if
we just hold together. With us on the job "PROFITS" are down, but
with us off the job "PROFITS" will ZAP to ZERO, and there goes
XEROX. Xerox is a Company that want UNION-MADE-PAPER. This is one
UNION that champeen is not going to control. Andy Sigler might as
well PUT THAT IN HIS PIPE & SMOKE IT. Bring on "THE TEST" Mr.
Champeen. THIS IS BIG ED POTTS, AND YOU'LL BE HEARING FROM ME
AGAIN REAL SOON.
There is no doubt from the above, that newsletter 83 involved Union
activity. Throughout the newsletter, it took the position of the Union
against the actions of the Respondent. Its language dealt with the
status of Respondent and the Union's contract negotiations and
Respondent's decision to terminate the extended contract and implement
new working conditions. Newsletter 93 implied that supervisors Bob
Marlewski and Carl Jones had lied to employees regarding the question of
employees voting on a contract; and that Respondent was employing or
contracting with scabs. The newsletter also ridiculed supervisor Carl
Jones by referring to him as "Wrankle Head."
Here the situation was similar to the situation in Alaska Pulp,
supra. The Union was involved in a labor dispute with Respondent. That
dispute had become heated following the Respondent's termination of the
extended contract and its implementation of new working conditions.
Newsletter 83 dealt exclusively with the labor dispute in its sometimes
strong language which consistently attacked Respondent's position in the
labor dispute.
The newsletter 83 language falls far short of the language and
cartoon, condemned in Caterpillar Tractor Co., supra.
There was no showing that the alleged discriminate, Tommy Scogin,
made any effort to distribute the Between the Fence Post newsletters to
anyone other than employees. Certainly as to the matters material to
this proceeding, the evidence illustrated that Scogin limited his
distribution to other employees. For that reason this matter is
distinguishable from Southwestern Bell, and Midstate Tel Corp. v. NLRB,
supra, where t-shirts were worn in full view of the public; and from
Sahara Datsun, supra, where publication was made to a business associate
of the employer (i . e., a bank)
The Board recently considered questions similar to those above, in
San Juan Hotel, 289 NLRB No. 164 (1988) :
The Supreme Court in Jefferson Standard, above, held that
employee conduct involving a disparagement of an employer's
product, rather than publicizing a labor dispute, is not
protected. As Jefferson Standard and subsequent Board cases show,
there is sometimes a fine line between raising highly sensitive
issues that relate to terms and conditions of employment and those
that relate to disparaging an employer's reputation. The leaflet
found unprotected in Jefferson Standard was an employee handbill
that contained a "vitriolic" attack on the quality of the
employer's television broadcast and management policies. It made
no reference to the pending labor dispute between the parties or
to wages, hours, or working conditions; and it was not an appeal
for public sympathy or support. Employees distributed the
handbill on their picket line and on public property. Similarly,
in Sahara Datsun, 278 NLRB 1044 (1986), enfd. 811 F.2d 1317 (9th
Cir. 1987), the Board found that an employee's statements that the
employer falsified customer credit applications, which were made
to the bank that granted financing to the employer's customers,
were unprotected. The Board found that the statements, although
related to terms and conditions of employment, were, nevertheless,
unsubstantiated assertions that could have ruined a long standing
business relationship based on trust and fair dealing. Sahara
Datsun, above. On the other hand, the Board in Veeder-Root Co.,
237 NLRB 1175 (1978), found that employee literature that was
phrased in general political terms but made particular reference
to the employer's activities regarding its employees and ended
with the demand "FIGHT WAGE CUTS AND SPEED UP]" was sufficiently
related to wages, hours, and conditions of employment to be
protected. San Juan Hotel, 289 NLRB No. 164, slip opin. p.6
(1988).
The letter in question in San Juan Hotel, accused the trustee of the
Respondent employer of being irresponsible, and of being a dictator and
wanting to close the hotel. The trustee was alleged to be in position to
gain financially from the hotel's close.
I find that newsletter 83 falls within the scope of the rule
discussed in San Juan Hotel, and is protected under Section 7 of the
Act. Newsletter 83 advocated the Union positions and condemned the
opposing position of Respondent and its language, while sometimes crude
and unpleasant, does not justify exclusion from Section 7 protection.
The newsletter must stand alone in view of my determination that
Respondent did not know of any other specific newsletters which were
distributed by Scogin. Newsletter number 83 was prepared and
distributed among employees. Number 83 was not distributed to outsiders
and there was no effort in the newsletter to injure Respondent's
business.
In view of my finding that newsletter 83 constitutes protected
activity, I shall not consider Respondent's argument that it was
justified in suspending Tommy Scogin because Scogin engaged in
misconduct.
In situations where an employee engaged in activity protected by
Section 7 of the Act, is accused by the employer of engaging in
misconduct, the rule is as follows:
* * * In cases of this type the proper standard for determining
whether the law was violated was announced by the Supreme Court in
NLRB v. Burnup & Sims, 379 U.S. 21 (1964), and by the Board in
Rubin Bros. Footwear, 99 NLRB 610 (1952). The Board recently
restated that ruling in K & ff Transportation Corp., 262 NLRB 1481
(1982). In K & K Transportation, as well as in most other cases,
the issues concerned alleged employee misconduct during a strike.
However, the rule has also been applied in situations like the
instant case in which employees were admittedly engaged in union
activity. The basic general rule is that once it has been
established that an employee is engaged in union or protected
activity, the burden shifts to the employer who must demonstrate
an honest belief that the employee was engaged in misconduct.
Once an employer establishes an honest belief that the employees
engaged in misconduct, the burden shifts back to the General
Counsel to prove that the employee did not, in fact, engage in
misconduct. Magnolia Manor Nursing Home, 284 NLRB 825, 829
(1987).
As shown in Magnolia Manor Nursing Home, supra, Respondent must show
an honest belief through objective evidence, that Tommy Scogin engaged
in conduct which was punishable under Respondent's practices. see
Brunswick Food & Drug, 284 NLRB 663 (1987).
Respondent contends that Tommy Scogin violated several rules on
November 16. In its November 30, 1989 letter to Scogin, shown above,
Respondent asserts that Scogin violated the. the following rules which
were included along with other rules, as an appendix to the last
collective bargaining agreement:
2. Leaving one's job assignment, location, or department,
except in the line of duty, or leaving the Mill without express
permission of supervision.
22. Threatening, intimidating, coercing other employees;
interfering with the activities of another employee in the
performance of his work; or directing abusive, vile or insulting
remarks to or about another employee on Company premises at any
time.
25. Soliciting, collecting contributions or distributing
literature of any description in work areas without permission of
management.
33. Unauthorized or improper use of Company communications
equipment.
General Counsel, on the other hand, points to the testimony of Tommy
Scogin, Mitch Compton and Delane Bradford which shows that Respondent
routinely permitted employees to leave their work areas to copy various
documents on Respondent's xerox machines. Compton and Bradford
testified without dispute from Respondent, that supervisors routinely
permitted employees to copy various documents including religious
matters, football pools and other things including the pro-union,
Between the Fence Posts newsletters.
Current employee and president of the Local Union, Danny Morris,
testified that he has been handling grievances for some 12 or 13 years
and that Respondent has never said that employees are prohibited from
copying personal matters on Company xerox machines.
Compton, a current employee of Respondent, testified that he has
regularly made copies of personal materials throughout the shifts at
different times, in the presence of supervisors including Bennie Cole,
Bill Thompson and Wiley Reeves. Those materials copied by Compton
included copies of the Between the Fence Posts newsletters. Compton
testified that he has made anywhere from 25 to 75 copies at a time. On
one occasion Superintendent on Coater Don Bowling told Compton that he
wanted a copy of the newsletter Compton was copying, even if Compton had
to stick it up under Bowling's door. Compton recalled that he has given
copies of the newsletter to other supervisors including Gary Smith, Pete
Nolan, Bennie Cole, Bill Thompson and Compton's own foreman, Bill Mann.
Compton was never told that he could not copy or distribute copies of
personal materials.
Delane Bradford, who is currently employed by Respondent as a quality
control inspector in labs 30/31 and 33/34, testified that employees
routinely copy personal materials including,
Any type material you can think of; from religious to
cartoons, jokes, magazine articles, newspaper articles, church
bulletins.
Bradford testified that he has observed employees copying personal
items such as those mentioned above, in the presence of members of
management including Superintendent Glenn Woods, and Shift Foremen
Bennie Cole, M.Q. Parker, Richard Allen and Willis Pennington. Bradford
has seen supervisors making copies of cartoons, jokes and Big Ed Potts
newsletters.
According to Bradford, he made copies of personal materials including
newspaper articles, football pools and union materials. He has copied
personal materials in the presence of supervisors including Glenn Woods,
Bennie Cole, Willis Pennington, Richard Allen and M.Q. Parker.
Bradford has observed other employees distributing personal materials
such as football pools, Big Ed Potts newsletters, dirty cartoons and
jokes, and college football related cartoons and jokes, by leaving those
materials laying around the work areas. According to Bradford that
distribution was done in the presence of supervisors and, on occasion,
he has observed one supervisor, Boyd Arnold, passing out cartoons and
stuff.
Additionally General Counsel offered evidence showing that Respondent
did not normally punish its employees because they left their work
assignment areas. Mitchell Compton and Deland Bradford, testified that
it is routine for them to move back and forth between labs 30/31 and
33/34 and that they have never been told by supervision that they needed
permission to move between those two labs.
Bradford testified that after Scogin was suspended, Foreman Bill
Mann,
told me that if I had to go to another lab, wherever I was
working, if I needed to go to the other one, or my locker or
anything, that was fine. If I needed to go out front to medical
or to the concession area, that was fine. There was no problem
with that.
Tommy Scogin admitted that he was told to stay in his work area but
Scogin testified, as did Compton and Bradford, that labs 30/31 and 33/34
were in his work area.
Respondent does have a basic right to regulate and restrict employee
use of company property. However, an employer may not use that basic
right to discriminatorily restrict pro-union activities. An employer
may not invoke rules designed to protect its property from unwarranted
use in furtherance of pro-union activities while, at the same time,
freely permit such use for non business related reasons. Union Carbide
Corp. v. N.L.R.B., 714 F.2d 657 (6th Cir. 1983); Hussmann Corporation,
290 NLRB No.145 (1988).
As to Respondent's contention that Scogin violated rule 2 (i.e.,
leaving one's job assignment, etc.) , rule 25 (i.e., soliciting), and
rule 33 (i.e., using communications equipment), the record evidence
shows that it was Respondent's practice to permit employees to engage in
the same type conduct engaged in by Scogin.
Before Respondent suspended Scogin, its practice was that rules 2, 25
and 33 were never enforced against employees because the employees used
Respondent's xerox machines during work, to copy and distribute non work
related, personal materials.
As to rule 22, as shown above, that rule states,
22. Threatening, intimidating, coercing other employees;
interfering with the activities of another employee in the
performance of his work; or directing abusive, vile or insulting
remarks to or about another employee on Company premises at any
time.
In addition to its citation of rule 22, the suspension letter
includes the following as one of four reasons for the suspension of
Scogin:
3. Various editions of "Between the Fence Posts" reproduced
and distributed by you contain material that is derogatory,
abusive, offensive and insulting to specific, named employees.
Some of this material contains ethnic slurs. Other materials
advocates actions and activities designed to adversely impact mill
operations. None of these kinds of materials are protected or are
legally or contractually permitted.
Respondent by charging Scogin with violation of rule 22, and by
making the allegations contained in item number 3, quoted above, holds
out that Scogin was also being punished for materials contained in
specific editions of Between the Fence Posts newsletters other than
edition number 83.
On the basis of the entire record as credited, I find there was no
evidence available to Respondent which tended to prove that Scogin had
anything to do with the writing of any of the newsletters, or that he
was responsible for the distribution of any specific newsletter other
than number 83. The only evidence in that regard is the discredited
testimony of Charles Adams that Scogin admitted that in addition to
newsletter number 83, he also copied newsletter number 21. Scogin
admitted to Respondent that he had distributed other newsletters but
Scogin told Respondent that he was unaware of any specific newsletters
that he had copied for distribution, other than number 83. The record
revealed that Respondent did not know of any other specific newsletter
copied and distributed by Scogin.
I find that the evidence failed to show that Scogin was in any way,
responsible for newsletter number 21.
As to edition number 83, Scogin did nothing more than copy and place
those copies out for the benefit of other employees. In that regard
Scogin did nothing which had not been routinely permitted of other
employees and, in fact, he did nothing more than engage in conduct
similar to that of some supervisors. As shown above, supervisors copied
and distributed personal materials including, on some occasions, copies
of Between the Fence Posts.
I find that the evidence available to Respondent failed to support a
finding that Respondent had an honest belief that Scogin engaged in
misconduct. That evidence illustrated that Scogin did nothing other
than conduct which was routinely permitted of other employees.
Additionally, the evidence shows that Tommy Scogin did not, in fact,
engage in misconduct.
Finally, the evidence proved that Scogin was treated in a disparate
fashion because of his protected activity of copying and distributing
newsletter number 83.
Conclusions of Law
1. Champion International Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent, by suspending Tommy Scogin, violated section 8(a) (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
The Remedy
Having found that Respondent has engaged in unfair labor practices, I
shall recommend that it be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of
the Act. As I have found that Respondent unlawfully suspended Tommy
Scogin, I shall recommend that Respondent be ordered to immediately
rescind the suspension of Scogin, without prejudice to his seniority or
other rights and privileges.
I shall further recommend that Respondent be ordered to make Scogin
whole for any loss of earnings he suffered as a result of the
discrimination against him. Backpay shall be computed in the manner
described in F.W. Woolworth Co., 90 NLRB 289 (1950), with interest, as
computed in New Horizons for the Retarded, 283 NLRB No. 181 (1987). /1/
ORDER /2/
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, it is hereby ordered that Respondent Champion International
Corporation, its officers, agents, successors and assigns shall:
1. Cease and desist from:
(a) Suspending and otherwise discriminating against employees because
of their union or other protected concerted activities.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of 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 its employee Tommy Scogin immediate rescission of the 30
day suspension which was imposed against him, and make Scogin whole for
any loss of earnings, plus interest, suffered because of its illegal
action.
(b) Remove from its files any reference to the suspension of Scogin
and notify Scogin in writing that this has been done and that evidence
of his unlawful suspension 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, and timecards, personnel records, reports, and all
other records necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facility in Courtland, Alabama, copies of the
attached notice. /3/ Copies of the notice, on forms provided by the
Regional Director for Region 10, 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.
Dated at Washington, D.C. November 20, 1990
J. Pargen Robertson
Administrative Law Judge
"APPENDIX"
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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.
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.
WE WILL NOT suspend our employees because of their activities on
behalf of International Paperworkers of America, AFL-CIO, CLC, or any
other labor organization.
WE WILL offer immediate rescission of his 30 day suspension, to our
employee Tommy Scogin, without prejudice to his seniority or other
rights and privileges.
WE WILL make Tommy Scogin whole for all losses of earnings he may
have suffered by reason of our discrimination against him.
WILL expunge from our records any reference to our suspension of
Tommy Scogin and, WE WILL notify Scogin in writing of our action in that
regard.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of rights guaranteed them by
Section 7 of the Act.
Champion International Corporation
(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 with any other
material. Any questions concerning this notice or compliance with its
provisions may be directed to the Board's office, Suite 2400, 101
Marietta St., NW, Atlanta, Georgia 30323-3301, Telephone 404--331--2886.
'Footnotes to the Decision'
/1/ Under New Horizons, interest is computed at the "short-term
federal rate" for the underpayment of taxes as set out in the 1986
amendment to 26 USC Section 6621. Interest accrued before January 1,
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corporation, 231 NLRB 651 (1977)
/2/ If no exceptions are filed as provided by Section 102.46 of the
Board's Rules and Regulations, the findings, conclusions and recommended
Order shall, as provided in Section 102.48 of the Rules, be adopted by
the Board and all objections to them shall be deemed waived for all
purposes.
/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."
303 NLRB No. 10
D--2010
Keller, TX
AFFILIATED FOOD STORES, INC. and MARK HOYUM, an Individual GENERAL
DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION 745, AFFILIATED WITH
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL--CIO /1/ and MARK HOYUM, an Individual
Case 16--CA--14274, Case 16--CB--3459
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER
On May 25, 1990, Administrative Law Judge William N. Cates issued
the attached decision. Respondent Union and Respondent Employer both
filed exceptions and supporting briefs, and the General Counsel filed an
answering brief in support of the administrative law judge's decision.
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, and conclusions as modified and to adopt the recommended Order
as modified.
The judge found that Respondent Union violated Section 8(b)(1)(A) and
(2) of the Act by refusing to process employee Mark Hoyum's
dues-deduction revocation and by instructing, attempting to cause, and
causing the Employer to continue dues deductions for Hoyum after he
effectively resigned from union membership. The judge further found
that Respondent Employer violated Section 8(a)(1), (2), and (3) of the
Act by refusing to honor Hoyum's request to revoke his dues-checkoff
authorization and assignment after he effectively resigned from union
membership. We agree with the judge's findings of the violations cited,
but do so for the following reasons. /2/
In Electrical Workers IBEW Local 2088 (Lockheed space Operations),
/3/ the Board acknowledged judicial criticism of the Eagle Signal /4/
analysis and set forth a new test for determining the effect of an
employee's resignation from union membership on that employee's
dues-checkoff authorization. The Board in Lockheed found that an
employee may voluntarily agree to continue paying dues pursuant to a
checkoff authorization even after resignation of union membership. In
fashioning a test to determine whether an employee has in fact agreed to
do so, the Board recognized the fundamental policies under the Act
guaranteeing employees the right to refrain from belonging to and
assisting a union, as well as the principle set forth by the Supreme
Court that waiver of such statutory rights must be clear and
unmistakable. /5/ In order to give full effect to these fundamental
labor policies, the Board stated that it would:
construe language relating to a checkoff authorization's
irrevocability-- -i.e., language specifying an irrevocable
duration for either 1 year from the date of the authorization's
execution or on the expiration of the existing
collective-bargaining agreement---as pertaining only to the method
by which dues payments will be made so long as dues payments are
properly owing. We shall not read it as, by itself, a promise to
pay dues beyond the term in which an employee is liable for dues
on some other basis. Explicit language within the checkoff
authorization clearly setting forth an obligation to pay dues even
in the absence of union membership will be required to establish
that the employee has bound himself or herself to pay the dues
even after resignation of membership. (Slip op. at 21--22;
footnote omitted; emphasis in original.) /6/
Applying the analysis of Lockheed to the facts in this case, we find
the Respondents have failed to show that the dues-checkoff authorization
that employee Hoyum signed obligated him to pay dues after he
effectively resigned union membership. As in Lockheed, all that Hoyum
clearly agreed to do was to allow certain sums to be deducted from his
wages and remitted to Respondent Union for payment of "initiation fees,
monthly fees, and uniform assessments." He did not clearly agree to have
deductions made after he had submitted his resignation from union
membership. We thus find that Hoyum did not clearly and unmistakably
waive his right to refrain from assisting a union after resignation from
membership. The authorization could therefore not be enforced against
him after he ceased being a union member. We therefore find the
Respondent Employer's refusal to discontinue payroll deductions of union
dues for Hoyum was unlawful assistance to a labor organization and
restrained and coerced Hoyum in the exercise of his Section 7 rights.
Accordingly, we find that Respondent Employer violated Section 8(a)(1),
(2), and (3) of the Act. We further conclude that Respondent Union's
continuing to require Hoyum to pay dues following his resignation from
union membership and its demand that Respondent Employer continue to
check off his membership dues restrained and coerced Hoyum in the
exercise of his Section 7 rights. We thus find that Respondent Union
violated Section 8(b)(1)(A) and (2) of the Act.
Amended Conclusions of Law
1. Substitute the following for Conclusion of Law 3.
"3. By refusing to process Mark Hoyum's resignation from the Union in
a timely matter and by requiring him to continue to pay dues after he
resigned membership in the Union, where the terms of the voluntarily
executed checkoff authorization did not clearly and explicitly impose
any postresignation dues obligation on him, Respondent Union has
restrained and coerced him in the exercise of his Section 7 rights and
violated Section 8(b)(1)(A) of the Act."
2. Insert the following as Conclusion of Law 4 and renumber the
remaining paragraphs.
"4. By causing the Employer, by virtue of a dues-checkoff
authorization that does not clearly and explicitly impose any
postresignation dues obligation on the employees, to deduct union
membership dues from Hoyum's wages after he had resigned union
membership, Respondent Union has violated Section 8(b).(2) of the Act."
3. Substitute the following for new Conclusion of Law 5.
"5. By refusing to discontinue dues deductions from the wages of Mark
Hoyum after he ceased being a union member, Respondent Employer has
unlawfully assisted Respondent Union and has restrained and coerced
Hoyum in the exercise of his Section 7 rights, thereby violating Section
8(a) (1), (2), and (3) of the Act."
ORDER
The National Labor Relations Board adopts the recommended Order of
the administrative law judge as modified below and orders that
A. Respondent General Drivers, Warehousemen and Helpers, Local Union
745, affiliated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL--CIO, Keller, Texas, its
officers, agents, and representatives, shall take the action set forth
in the Order, as modified.
1. Substitute the following for paragraph A(1)(b).
"(b) Requiring any employee to continue to pay dues after the
employee has resigned membership in the Union, where the terms of the
voluntarily executed checkoff authorization did not clearly and
explicitly impose any postresignation dues obligation on the employee
and where the employee no longer owes union dues."
2. Insert the following for paragraph A(1)(c) and reletter the
remaining paragraph.
"(c) Causing and/or attempting to cause the Employer, by virtue of a
dues-checkoff authorization that does not clearly and explicitly impose
any postresignation dues obligation on the employee to deduct union
membership dues from the wages of any employee who has resigned union
membership."
3. Substitute the attached notice to members for that of the
administrative law judge.
B. Respondent Affiliated Food Stores, Keller, Texas, its officers,
agents, successors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph B(1)(a).
"(a) Deducting, by virtue of dues-checkoff authorizations that do not
clearly and explicitly impose any postresignation dues obligation on the
employees, union membership dues from the wages of any employee who has
resigned union membership."
2. Substitute the attached notice to employees for that of the
administrative law judge.
Dated, Washington, D.C. May 24, 1991
James M. Stephens, Chairman
Mary Miller Cracraft, Member
John N. Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 require any employee to continue to pay dues after the
employee has resigned membership in the Union, where the terms of the
voluntarily executed checkoff authorization do not clearly and
explicitly impose any postresignation dues obligation on the employee
and where the employee no longer owes union dues.
WE WILL NOT cause and/or attempt to cause Affiliated Food Stores,
Inc., by virtue of a dues-checkoff authorization that does not clearly
and explicitly impose any postresignation dues obligation on the
employee after resignation of union membership, to deduct union
membership dues from the wages of any employee who has resigned union
membership.
WE WILL NOT refuse to process, in a timely manner, resignations from
union membership.
WE WILL NOT in any like or related manner restrain or coerce you in
the exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL make whole employee Mark Hoyum jointly and severally with
Affiliated Food Stores, Inc. for any dues deductions from his wages for
the period following his resignation from union membership, with
interest.
GENERAL DRIVERS, WAREHOUSEMEN AND
HELPERS, LOCAL UNION 745,
AFFILIATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL--CIO
(Labor Organization)
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, 819 Taylor Street,
Room 8A24, Forth Worth, Texas 70102-6178, Telephone 817--324--2941.
APPENDIX B
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 deduct, by virtue of dues-checkoff authorizations that do
not clearly and explicitly impose any postresignation dues obligation on
the employees, union membership dues from the wages of employees who
have resigned their union membership.
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 whole, jointly and severally with General Drivers,
Warehousemen and Helpers, Local Union 745, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL--CIO, employee Mark Hoyum for any dues deductions from his
wages for the period following his resignation from union membership,
with interest.
AFFILIATED FOOD STORES, 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, 819 Taylor Street,
Room 8A24, Fort Worth, Texas 76102-6178, Telephone 817--334--2941.
'Footnotes for the Decision and Order'
/1/ On November 1, 1987, the Teamsters International Union was
readmitted to the AFL--CIO. Accordingly, the caption has been amended to
reflect that change.
/2/ The judge also found that Respondent Union violated Sec.
8(b)(1)(A) of the Act by refusing to process, in a timely manner, the
resignation of employee Hoyum. As to this matter, we agree with the
judge's finding and his rationale.
/3/ 302 NLRB No. 49 (Mar. 29, 1991).
/4/ See NLRB v. Postal Service, 833 F.2d 1195 (6th Cir. 1987); NLRB
v. Postal Service, 827 F.2d 548 (9th Cir. 1987).
/5/ Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
/6/ In Lockheed, the Board left open the question of how its waiver
rule would apply in the context of a lawful union-security provision.
In the absence of a union-security clause requiring union membership
here, the Lockheed test is applicable to this case.
Timothy Watson, Esq., for the General Counsel.
Richard R. Swarb, Keller, TX, for the Company.
Yona Rozen, Esq. (Hicks, Gillespie, James, Rozen & Preston P.C.),
Dallas, TX, for the Union.
DECISION
Statement of the Case
WILLIAM N. CATES, Administrative Law Judge. This case was heard
before me on February 5, 1990, at Fort Worth, Texas. The trial was held
pursuant to an Order Consolidating Cases, Amended Consolidated Complaint
and Notice of Hearing (complaint) issued by the Regional Director for
Region 16 of the National Labor Relations Board (Board) on January 11,
1990. The complaint is based on charges filed by Mark Hoyum, an
individual (Hoyum), against Affiliated Food Stores, Inc. (Company) and
against General Drivers, Warehousemen and Helpers, Local Union 745,
affiliated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Union). The charge in Case
16-CA-14274 was filed on October 17, and amended on December 4, 1989.
The charge in Case 16-CB-3459 was filed on October 17, and amended on
December 4, 1989. The complaint alleges the Union has violated Section
8(b) (1) (A) and (2) of the Act by refusing and continuing to refuse
since on or about September 12, 1989, to process Hoyum's resignation and
dues deduction revocation and by instructing, attempting to cause, and
causing, the Company to continue the deduction of Hoyum's dues. It is
further alleged in the complaint that the Company violated Section 8(a)
(1), (2), and (3) of the Act by refusing since on or about October 11,
1989, to honor Hoyum's request to revoke his dues checkoff authorization
and assignment.
The Company and Union admitted the commerce and jurisdictional
allegations of the complaint as well as the labor organization status of
the Union. However, they denied having violated the Act in any manner
alleged in the complaint.
Upon the entire record, including my observation of the demeanor of
the witnesses, and after considering briefs filed by counsel for the
General Counsel, the Company, and the Union, I make the following:
Findings of Fact
I. Jurisdiction
The Company is now, and has been at all times material, a Texas
corporation with an office and principal place of business in Keller,
Texas, where it is engaged in the wholesale distribution of food
products. During the calendar year preceding issuance of the complaint
herein, a representative period, the Company, in the course and conduct
of its operations, purchased and received goods, materials, equipment
and supplies valued in excess of $50,000 at its Keller, Texas facility
directly from points outside the State of Texas. The Company is, and
has been at all times material herein, an employer engaged in commerce
and in a business affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. Labor Organization
The Union is a labor organization within the meaning of Section 2(5)
of the Act.
III. Alleged Unfair Labor Practices
A. Facts
The operative facts are not in dispute. The Company and Union have a
longstanding relationship and have been parties to successive collective
bargaining agreements, the most recent of which is effective from July
2, 1987 through July 1, 1990. Article VIII of the current collective
bargaining agreement provides for checkoff whereby the Company deducts
union dues from the earnings of any employee who authorizes such
deductions by signing a union-provided checkoff authorization and
assignment card. Dues are deducted in accordance with the provisions
outlined on the union-provided authorization card.
Pertinent portions of Article VIII "Checkoff" are as follows:
ARTICLE VIII
CHECK-OFF
(1) The COMPANY will deduct UNION dues (consisting of
initiation fees, monthly fees and uniform assessments) each month
from the earnings of any employee who authorizes such deductions
by signing the authorization card currently in use by the UNION (a
copy of which has been furnished to the COMPANY), and such
deductions shall be made in accordance with provisions of said
authorization form.
(2) Prior to the first (1st) day of each month, the UNION shall
furnish the COMPANY a list of employees from whose earnings
deductions are to be made for such dues and the amounts to be
deducted. The COMPANY will deduct said amount from the first
paycheck of the employee in each month, and shall promptly remit
the total of said deductions to the Local UNION's fiscal officer,
together with a list of the names of the employees for whom
deductions have been made and the respective amounts of such
deductions.
(3) The UNION agrees that it will indemnify and save the
COMPANY harmless from any and all liability, claim,
responsibility, damage, or suit which may arise out of any action
taken by the Company in accordance with the terms of this Article
or in reliance upon the authorization mentioned herein.
(6) The COMPANY will recognize authorization for an annual or
weekly DRIVE deduction from wages to be transmitted to Local 745
DRIVE. No such authorization shall be recognized if in violation
of State or Federal Law.
The checkoff authorization and assignment cards utilized at material
times herein are identical to the one voluntarily signed by Hoyum on
August 17, 1984. The checkoff authorization and assignment card Hoyum
signed is as follows:
CHECK-OFF AUTHORIZATION AND ASSIGNMENT
I, the undersigned member of Local 745 of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America herewith authorize my employer to deduct from my wages
each and every month my union dues consisting of initiation fees,
monthly fees, and uniform assessments owing to such Local Union as
a result of membership, therein, and direct that such amounts so
deducted be sent to the Secretary-Treasurer of such Local Union
for and on my behalf.
This authorization and assignment shall be irrevocable for the
term of applicable contract between the Union and the Company, or
for one year, whichever is the lesser, and shall automatically
renew itself for successive yearly or applicable contract periods
thereafter, whichever is the lesser, unless I give written notice
to the Company and the Union at least 60 days and not more than 75
days before any periodic renewal date of this authorization and
assignment of my desire to revoke the same.
Date 8/17/84 Signature /s/ Mark Hoyum
Sign Full Name
Hoyum sent an undated certified letter to the Union which was
received on September 11, 1989. Hoyum's handwritten letter reads as
follows:
To Whom it May Concern
I am withdrawing from Teamsters Local 1745 on Date 91 189.
Which is my right in the Affiliated Foods, Teamsters contract July
1, 1987-July 1, 1990 in Article Three: Paragraph One.
Also at this time I am also withdrawing from all donations to
D.R.I.V.E. (Teamsters charity).
c/c Teamsters local 1745
c/c affiliated foods
c/c Labor Relations Board.
Hoyum sent certified copies of his letter to the Company and to the
Board's Regional (16) Office.
Union Assistant Business Representative Michael
Kline (Kline) acknowledged receipt of Hoyum's request in a letter to
Hoyum dated September 12, 1989. Kline's letter to Hoyum is as follows:
Mr. Mark Hoyum
3713 East Ridge
Haltom, Texas 76117
Dear Sir and Brother:
Please be advised Teamsters Local Union 745 is in receipt of
your request to 'Withdraw' your membership from this Local Union.
Please be advised your withdrawal is irrevocable through the
terms of the Check-Off Authorization and Assignment. We will
expect the Company to continue the Check-Off provisions per
Article 8 of the current working Agreement.
Also, please be advised that your application for withdrawal
from D.R.I.V.E. should be sent to the International Union in
Washington, D.C.
Fraternally yours,
TEAMSTERS, LOCAL UNION 745
1st Michael Kline
Michael Kline
Assistant Business
Representative
The Company did not respond to Hoyum's letter. Company payroll clerk
Carla Harter (Harter) testified that after she received the letter, she
immediately canceled payroll deduction of union dues for Hoyum. Harter
said that after the next pay period (around October 4, 1989) from which
union dues were deducted, she received a telephone call from Union
Assistant Business Representative Kline about the fact dues were not
deducted for Hoyum. Kline told Harter the Company should not have
stopped deducting dues from Hoyum's wages. Harter said she reviewed
Hoyum's dues deduction status with her superiors and thereafter
telephoned Kline to tell him dues deductions for Hoyum should not have
been stopped and would be reinstated.
The Company deducted union dues from Hoyum's next pay check which was
on October 11, 1989.
Upon receipt of his October 11, 1989, pay check from which union dues
had been deducted, Hoyum telephoned Company payroll clerk Harter for an
explanation. Harter told Hoyum it was her fault that she had mistakenly
stopped deducting dues from his pay. Harter explained the situation to
Hoyum, apologized for her mistake, and told him dues deductions had been
reinstated for him. The Company thereafter has continued to deduct dues
from Hoyum's pay and transmit same to the Union which has continued to
receive the dues.
On November 16, 1989, Assistant Business Representative Kline sent
Hoyum the following letter:
Mr. Mark Hoyum
3713 Eastridge
Haltom, Texas 76117
Dear Mr. Hoyum:
In further response to your letter notifying the Union of your
withdrawal from Teamsters Local 745 which was received by Local
745 on September 11, 1989, I would offer you the following
information. Although the Article that you quote (Article III) is
not currently in effect, we take your letter to mean that you wish
to withdraw from your membership in Local 745. Therefore, we will
grant your request that you no longer be a member of Local 745.
However, the issue of Dues Deduction Authorization is separate
from membership in Local 745. Since your request was not timely
as to the terms of your Dues Deduction and Authorization, it is
our position that you are still bound by your Dues Deduction and
Authorization.
I hope that this clarifies the Union's position in this matter.
Very truly yours,
/s/ Michael Kline
Michael Kline
Assistant Business
Representative
TEAMSTERS LOCAL UNION 745
Assistant Business Representative Kline testified there was no
requirement that an employee authorize payroll deductions in order to
pay union dues. Kline said employees could pay their dues personally at
the union hall, or they could do so through the postal service utilizing
checks or money orders. Kline acknowledged that all of the
approximately 550 dues paying employees at the Company paid their union
dues pursuant to the checkoff procedure. Kline explained the Union
relied on the period of irrevocability for dues to plan and budget its
operations.
The Union continues to receive dues deducted by the Company on behalf
of Hoyum.
B. Discussion, Analysis, and Conclusions
The central overriding question to be decided herein is whether
Hoyum's checkoff authorization and assignment was terminated as a result
of his resignation from the Union.
The positions taken by the parties are briefly highlighted at this
point to facilitate an understanding of the analysis hereinafter set
forth.
Counsel for the General Counsel asserts certain rights accorded
employees in Section 7 of the Act are well settled. He asserts that one
of the most important of those settled rights is the right to resign
union membership unimpeded. Counsel for the General Counsel points out
that the Board and Courts have concluded that any restriction on the
right to resign membership in a union is not only inconsistent with a
policy of voluntary unionism implicit in Section 8(a) (3) of the Act but
also violates Section 8(b) (1) (A) of the Act. With respect to the
instant case, Counsel for the General Counsel asserts the Union's
refusal to grant Hoyum's request for resignation from the Union until
approximately 2 months after he made his request was unlawful. Counsel
for the General Counsel further asserts the Union's refusal to recognize
Hoyum's resignation from the Union as a revocation of his dues checkoff
authorization and assignment constituted an unlawful restriction on his
Section 7 right to resign union membership. Counsel for the General
Counsel urges that the Section 7 rights of employees, such as Hoyum, to
resign their union membership necessarily encompasses the right to sever
all ties to the union. In that regard, Counsel for the General Counsel
urges that logic dictates that an employee's Section 7 right to resign
membership in a union would be meaningless if an employee, such as
Hoyum, could be required to continue to lend financial support to the
union from which he or she has resigned. /1/ Counsel for the General
Counsel urges that the Union's barrier of not allowing Hoyum to escape
financial responsibilities to the Union unlawfully deterred him in the
exercising of one of his most fundamental Section 7 rights -- the right
to resign union membership.
Counsel for the General Counsel argues an alternative theory namely
that even if Hoyum's resignation from the Union did not revoke his
checkoff authorization, his resignation reduced his dues obligation to
zero. Accordingly, he argues zero is the amount to be deducted and
remitted to the Union. Consequently, he argues the Union violated the
Act by causing the Company to deduct and by continuing to accept any
amount of dues from Hoyum's pay greater than zero.
Finally, Counsel for the General Counsel asserts the checkoff
authorization and assignment card executed by Hoyum by its express
language makes dues payment a quid pro quo for union membership.
Counsel for the General Counsel argues Board law is that a resignation
will revoke a checkoff authorization and assignment even in the absence
of a revocation request where the authorization itself makes payment of
dues a quid pro quo for union membership.
The Union asserts Hoyum voluntarily joined the Union and when faced
with the option of paying his dues directly or paying them through
checkoff, he opted to enter into a contract with the Union and the
Company for the manner in which he would pay his union commitments. The
Union argues there is nothing about that voluntary arrangement between
the parties for the convenient payment of dues that violates Section 7
of the Act inasmuch as it was a voluntary non-coercive act. In that
regard, the Union argues Hoyum was free during the term of his checkoff
authorization to quit the union and cease associating with it; however,
having voluntarily entered into a contract with the Union, he was not
free to void the means he chose for payment of his dues except pursuant
to the terms of the checkoff authorization and assignment. The Union
further contends Hoyum could have sought a checkoff authorization
providing for cessation of dues deductions at any time but instead chose
to sign a checkoff authorization committing himself to at least one
year's payments. The Union argues that under the circumstances, it is
nonsensical to contend Hoyum is now unlawfully restricted by the
voluntary act he made in selecting a means of paying his commitments to
the Union. The Union asserts it has not in any manner restricted
Hoyum's right to resign his membership in the Union. The Union notes
that although Hoyum is no longer a member he is a party to a common law
contract requiring him to pay union dues for a period of at least one
year. The Union urges Hoyum's commitment is subject to termination by
him but only pursuant to the terms set out in the checkoff authorization
and assignment itself. The Union also argues that by knowingly and
conscientiously entering into this dues checkoff arrangement Hoyum gave
up his right to cease paying dues on an unrestricted basis. In this
regard, the Union argues Hoyum is estopped from asserting a violation of
the Act in that he has waived his statutory right to complain by
entering into the voluntary dues checkoff authorization and assignment.
The Union argues the checkoff authorization is not in consideration
of union membership but is merely an agreed upon means of payment
selected by the Union, Company, and Hoyum. The Union asserts each
benefits from this arrangement. The individual has his obligations to
the union taken care of without any effort on his part, the Union is
able to plan its operations based on funds available to it and the
Company and Union benefit from having a system of dues collection that
is not constantly disrupted.
Finally, the Union notes Hoyum executed his dues checkoff
authorization on August 17, 1984, and did not file his charges until
October 1989. The Union points out that more than 6 months elapsed
between his execution of the agreement and the filing of the charges.
Accordingly, the Union urges that if a violation occurred, it occurred
when the dues checkoff authorization (which imposed the restrictions
complained of herein) was executed. The Union argues Hoyum's charges
are therefore time barred.
The Company takes the position it has not violated the Act simply by
fulfilling certain of the terms and conditions of its collective
bargaining agreement with the Union specifically as it pertains to
checkoff of union dues. The Company asserts Hoyum voluntarily executed
the checkoff authorization and assignment agreement thereby agreeing to
be bound by the revocation limitations set forth therein. Simply stated
the Company urges the checkoff authorization is a contract entitled to
full force and effect unless revoked in accordance with the provisions
set forth therein. The Company contends that since Hoyum did not resign
his membership within the time period set forth in the checkoff
authorization and assignment agreement, he failed to effectively revoke
his checkoff authorization.
Finally, the Company asserts the checkoff authorization and
assignment is separate and apart from, and not in consideration for,
union membership.
It is useful at this point to review certain principles established
by the Board and Courts.
In Pattern Makers League v NLRB, 473 U.S. 95 (1985), the Supreme
Court addressed the issue of "whether a union is precluded from fining
employees who have attempted to resign when resignations are prohibited
by the union's constitution." In deciding that issue, the Court held:
The Board has found union restrictions on the right to resign
to be inconsistent with the policy of voluntary unionism implicit
in 8(a) (3). See International Assn. of Machinists, Inc.,
Local 1414 (Neufeld Porshe-Audi, Inc.), supra; Machinists Local
1327 (Dalmo Victor II), 263 NLRB at 992 (Chairman Van de Water and
Member Hunter concurring). We believe that the inconsistency
between union restrictions on the right to resign and the policy
of voluntary unionism supports the Board's conclusion that League
Law 13 is invalid. (Footnote 14 omitted.)
In the Machinists Local 1414 (Neufeld Porshe-Audi, Inc.), 270 NLRB
1330 (1984) case referred to by the Court in Pattern Makers, the Board
adopted the concurring opinion of then Chairman Van de Water and then
Member Hunter in Dalmo Victor II, 263 NLRB 984, enf. denied 725 F.2d
1212 (9th Cir. 1984) that any restriction imposed on a member's right to
resign union membership or to otherwise refrain from Section 7
activities violated Section 8(b) (1) (A) of the Act.
In the case of Machinists Local 2045 (Eagle Signal), 268 NLRB 635 at
637 (1984), the Board held:
It is established Board law that a dues-checkoff authorization,
or wage assignment as it is called in this case, is a contract
between an employee and his employer and that a resignation of
union membership ordinarily does not revoke a checkoff
authorization. However, a resignation will, by operation of law,
revoke a checkoff authorization, even absent a revocation request,
where the authorization itself makes payment of dues a quid pro
quo for union membership. This is so whether or not the
resignation is made during the period for revocation set forth in
the authorization itself. (Footnotes omitted.)
In Letter Carriers (Postal Service), 283 NLRB 644 (1987), the Board
adopted an administrative law judge's conclusion that the payment of
dues therein was a quid pro quo for union membership. In that decision,
then Member Johansen noted "that the same result is reached if we
construe the (dues deduction) authorization to continue but that, as the
amount of dues owed is zero, zero is the amount to be deducted and
remitted."
The above principles make one thing absolutely clear which is no
restrictions, impediments, or delays may lawfully be placed on a
member's right to resign from a union. Hence, the delay by the Union
herein in honoring Hoyum's request to resign his union membership from
September 11, 1989 until November 16, 1989, was excessive, not shown to
be necessary and as such violated the Act. In that regard, I note the
Union offered no valid explanation for the roughly 10 weeks it took to
honor Hoyum's request to resign his union membership. Furthermore, the
teachings of Pattern Makers and Neufeld Porshe-Audi, persuade me that
the Section 7 rights of members to resign their union membership
necessarily encompasses the right to sever all ties to a union. A
member's right to resign union membership would be meaningless if he or
she could thereafter be required to continue to lend financial support
to a union from which he or she has resigned. To not allow an employee
to escape the monetary burden placed upon him or her by dues checkoff
after the employee has effectively resigned membership in a union would
constitute a barrier that would impede, if not completely deter, such an
employee from exercising one of his or her most fundamental Section 7
rights, namely the right to resign union membership. Stated
differently, the monetary implications of continued dues deductions
after membership resignation amounts to a frustration of the right to
resign union membership. In the instant case, the Union did not allow
Hoyum to escape monetary obligations to it even after it belatedly
honored his request to resign his union membership. The Union's action
in reality made Hoyum's resignation meaningless and unlawfully impeded
and frustrated him in his effort to sever his relationship with the
Union. Simply stated, the Union's restriction on Hoyum's revocation of
dues checkoff was, and is, tantamount to a restriction on resignation
and accordingly unlawful under the Supreme Court's teachings in Pattern
Makers and I so find. In that same light, I also conclude and find the
Company violated Section 8(a) (1), (2), and (3) of the Act by refusing
to honor Hoyum's request to revoke his dues checkoff authorization and
assignment after he had effectively resigned his union membership.
Alternatively, I conclude and find the checkoff authorization and
assignment executed by Hoyum clearly demonstrates the monies withheld
and thereafter transmitted to the Company were, and are, being withheld
(and transmitted) as a quid pro quo for membership in the Union. The
pertinent language in the authorization and assignment signed by Hoyum
-- "I . . authorize my employer to deduct from my wages . . . my union
dues consisting of initiation fees, monthly fees, and uniform
assessments owing such local union as a result of membership, therein, .
. ." is virtually indistinguishable in character from Eagle Signal,
supra, and Food & Commercial Workers Local 425 (Hudson Foods), 282 NLRB
1413 (1987). Accordingly, I find Hoyum's authorization and assignment
was revoked, by operation of law, when he effectively resigned his
membership in the Union and that the Union by causing the Company to
continue to checkoff dues for Hoyum restrained and coerced him in the
exercise of his Section 7 rights in violation of Section 8(b) (1) (A),
and (2) of the Act. I likewise find the Company violated Section 8(a)
(1), (2), and (3) of the Act by failing and refusing to honor Hoyum's
request to revoke his dues checkoff authorization and assignment after
he had effectively resigned his union membership.
Assuming arguendo that Hoyum's authorization and assignment continued
in effect, I would conclude the amount of dues he owes is zero and in
keeping with then Member Johansen's notation in Letter Carriers (Postal
Service), zero is the amount to be deducted and remitted to the Union.
The fact certain appellate courts have rejected the Board's rationale
in these type cases, see e.g., NLRB v. U.S. Postal Service, 833 F.2d
1195 (6th Cir. 1987) and NLRB v. U.S. Postal Service, 827 F.2d 548 (9th
Cir. 1987), does not compel a different result than that arrived at
herein in that Board precedent is to be applied by administrative law
judges unless or until the Supreme Court rules otherwise. See, e.g.,
Iowa Beef Packers, 144 NLRB 615 (1963) and Waco, Inc., 273 NLRB 746 at
749, fn. 14, (1984).
I reject the Union's contention the charges herein are barred by the
6-month limitations period outlined in Section 10(b) of the Act or that
Hoyum is estopped from asserting violations of the Act against it as
being patently without merit.
Conclusions of Law
1. Affiliated Food Stores, Inc. is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. General Drivers, Warehousemen and Helpers, Local Union 745,
affiliated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing to process Mark Hoyum's resignation from the Union in
a timely manner, by refusing to process his dues deduction revocation,
and by instructing, attempting to cause, and causing the Company to
continue dues deductions for Hoyum after he effectively resigned from
union membership, the Union violated Section 8(b) (1) (A) and (2) of the
Act.
4. By refusing to honor Mark Hoyum's request to revoke his dues
checkoff authorization and assignment after he effectively resigned from
union membership, the Company violated Section 8(a) (1), (2), and (3) of
the Act.
5. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
The Remedy
Having found that the Union and Company have engaged in, and are
engaging in, unfair labor practices within the meaning of Section 8(b)
(1) (A) and (2) and 8(a) (1), (2), and (3) of the Act, I shall order the
Union and Company to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
I shall recommend that the Union and Company make Mark Hoyum whole
for any monetary losses he may have suffered by reason of the Union's
and Company's unlawful refusal to honor his revocation of dues checkoff
authorization and assignment after Hoyum had effectively resigned his
union membership. The monies owed are to be computed in a manner
consistent with Board policy and with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987) /2/
On these findings of fact and conclusions of law, and on the entire
record, I issue the following recommended: /3/
ORDER
A. General Drivers, Warehousemen and Helpers, Local Union 745,
affiliated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers, agents, and
representatives shall:
1. Cease and desist from:
(a) Refusing to timely honor valid resignations by employees from
union membership.
(b) Refusing to honor the revocation of dues checkoff authorization
and assignment by employees having effectively resigned their union
membership.
(c) In any like or related manner 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) Jointly and severally with Affiliated Food Stores, Inc.
reimburse or refund to Mark Hoyum the dues unlawfully collected from
him, with interest, for the period following his valid resignation from
union membership and revocation of dues checkoff authorization and
assignment as set forth of "The Remedy" section of this Decision.
(b) Post at its Union office, copies of the attached notice marked
"Appendix A." /4/ Copies of the notice, on forms provided by the
Regional Director for Region 16, after being signed by the Union's
authorized representative, shall be posted by the Union immediately upon
receipt and maintained for 60 consecutive days in conspicuous places
including all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Union to ensure that the notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 16 in writing within 20
days from the date of this Order what steps the Union has taken to
comply.
B. Affiliated Food Stores, Inc, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to honor the revocation of dues checkoff authorization
and assignment by employees having effectively resigned their union
membership.
(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) Jointly and severally with General Drivers, Warehousemen and
Helpers, Local Union 745, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, reimburse or
refund to Mark Hoyum the dues unlawfully collected from him, with
interest, for the period following his valid resignation from union
membership and revocation of dues checkoff authorization and assignment
as set forth of "The Remedy" section of this Decision.
(b) Post at its Keller, Texas, office, copies of the attached notice
marked "Appendix B." /5/ Copies of the notice, on forms provided by the
Regional Director for Region 16, after being signed by the Company's
authorized representative, shall be posted by the Company 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 Company to ensure that
the notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 16 in writing within 20
days from the date of this Order what steps the Company has taken to
comply.
Dated, Washington, D.C. May 25, 1990
William N. Cates
Administrative Law Judge
"APPENDIX A"
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF TEE UNITED STATES GO
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 refuse to honor valid resignations by employees from
union membership.
WE WILL NOT refuse to honor the revocation of dues checkoff
authorization and assignment by employees having effectively resigned
from union membership.
WE WILL NOT in any like or related manner restrain or coerce you in
the exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL jointly and severally with Affiliated Food Stores, Inc.
reimburse or refund to Mark Hoyum the dues unlawfully collected from
him, with interest, for the period following his valid resignation from
union membership and revocation of dues checkoff authorization and
assignment.
GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION 745,
AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA
(Labor Organization)
DATED:____________By:____________________________________
(Representative) (Title)
THIS IS AM 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 with any other
material. Any questions concerning this notice or compliance with its
provisions may be directed to the Board's Office, 819 Taylor Street,
Room 8A24, Fort Worth, Texas 76102-6178. Telephone: (817) 334-2941.
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 refuse to honor valid resignations by employees from
union membership.
WE WILL NOT refuse to honor the revocation of dues checkoff
authorization and assignment by employees having effectively resigned
from union membership.
WE WILL NOT in any like or related manner restrain or coerce you in
the exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL jointly and severally with Affiliated Food Stores, Inc.
reimburse or refund to Mark Hoyum the dues unlawfully collected from
him, with interest, for the period following his valid resignation from
union membership and revocation of dues checkoff authorization and
assignment.
GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION
745,
AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA
(Labor Organization)
DATED:____________By:_____________________________________
(Representative) (Title)
"APPENDIX B"
NOTICE TO EMPLOYEES
POSTED BY ORDER OF TEE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GO
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.
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
WE WILL NOT refuse to honor the revocation of dues checkoff
authorization and assignment by employees having effectively resigned
from union membership.
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 jointly and severally with General Drivers, Warehousemen and
Helpers, Local Union 745, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America reimburse or
refund to Mark Hoyum the dues unlawfully collected from him, with
interest, for the period following his valid resignation from union
membership and revocation of dues checkoff authorization and assignment.
AFFILIATED FOOD STORES, INC.
(Employer)
DATED:___________ By:________________________________
(Representative) (Title)
THIS IS AM 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 with any other
material. Any questions concerning this notice or compliance with its
provisions may be directed to the Board's Office, 819 Taylor Street,
Room 8A24, Fort Worth, Texas 76102-6178. Telephone: (817) 334-2941.
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.
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
WE WILL NOT refuse to honor the revocation of dues checkoff
authorization and assignment by employees having effectively resigned
from union membership.
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 jointly and severally with General Drivers, Warehousemen and
Helpers, Local Union 745, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America reimburse or
refund to Mark Hoyum the dues unlawfully collected from him, with
interest, for the period following his valid resignation from union
membership and revocation of dues checkoff authorization and assignment.
AFFILIATED FOOD STORES, INC.
(Employer)
DATED:_____________ By:_______________________________
(Representative) (Title)
'Footnotes to the Decision'
/1/ Counsel for the General Counsel contends the instant case does
not involve a union security clause and as such he asserts he need not,
and does not, take a position on the requirements of an employee
resigning his or her union membership in that type situation.
/2/ Under New Horizons, interest is computed at the "short-term
Federal rate" for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. 6621. Interest accrued before January 1, 1987
(the effective date of the amendment) shall be computed as in Florida
Steel Corp, 231 NLRB 651 (1977).
/3/ 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.
/4/ If this Order is enforced by a Judgment of the 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."
/5/ See footnote 4.
303 NLRB No. 9
D--2010
Springfield and
Joplin, MO
JERRY DURNAM DRYWALL, d/b/a J & S DRYWALL and INTERNATIONAL
BROTHERHOOD OF PAINTERS & ALLIED TRADES, LOCAL 203
Case 17--CA--13354
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER
On March 1, 1989, Administrative Law Judge William A. Pope II issued
the attached decision. The Respondent filed exceptions and a supporting
brief. The General Counsel filed cross-exceptions and a brief in support
of the cross-exceptions and in answer to the Respondent's exceptions.
The Respondent also filed an answering brief to the General Counsel's
cross-exceptions.
The National Labor Relations Board has considered the decision and
the record in light of the exceptions, cross-exceptions, and briefs and
has decided to affirm the judge's rulings, findings, /1/ and conclusions
/2/ and to adopt the recommended Order as modified. /3/
We agree with the judge that the complaint is not barred by Section
10(b) because we find that the Respondent did not, more than 6 months
before the Union's filing of the unfair labor practice charge, expressly
repudiate the contract in clear and unequivocal terms. A & L
Underground, 302 NLRB No. 76, slip op. at 4 (Apr. 10, 1991).
The-Respondent's violations of its contractual and statutory obligations
before that time appeared, rather, to take the form of failures to
comply with the contractual terms.
The judge made no specific finding on this issue because he decided
this case before issuance of our decision in A & L Underground, when
Board precedent could arguably be read as making it immaterial, for
purposes of deciding the 10(b) limitations issue, whether a party had
clearly repudiated an agreement more than 6 months before the filing of
a charge alleging unlawful breaches or repudiation of that agreement. We
see no need, however, to remand for such a finding. Contrary to the
Respondent's submission, even if we consider what the Respondent claims
is an admission by James Alderson, the business agent of the Charging
Party Union, the record does not establish that a sufficiently clear
repudiation occurred outside the 10(b) period to bar litigation of the
charges on which the complaint was issued.
The Respondent essentially relies on Alderson's affirmative answer,
on cross-examination, to the question whether, on August 13, 1986, he
"felt" that the Respondent had "repudiated" the contract. Other
testimony, however, by both Alderson and by the Respondent's owner,
Jerry Durham, establishes a context indicating that Alderson may have
been using the term "repudiated" only in the sense of "ignoring" or
"failing to comply with" the agreement. The record does not establish
that at any time prior to the beginning of the 10(b) period (Sept. 27,
1986), Durham made statements manifesting a clear and unequivocal
repudiation of the agreement he had signed July 29, 1985, as
distinguished from statements manifesting an intent not to engage in
work that would be subject to the agreement.
Alderson, who was generally credited by the judge, /4/ testified that
in the summer of 1986 he had encountered Durham on several occasions
doing work on a hospital construction project to which the
collective-bargaining agreement applied. Alderson stated that he had
reminded Durham that he had signed a collective-bargaining agreement,
but Durham had contended that the project was a "non-union job" because
the general contractor and another contractor on the site from whom
Durham had obtained the work did not have union contracts. There was
then a brief discussion in which Alderson explained that this did not
make the agreement that Durham had signed inapplicable to the work.
Alderson further testified that Durham subsequently had asked him about
the bond requirement and other cost implications of the agreement and
had stated that he would "get off the job" and possibly "have to get off
of commercial work altogether." Durham did not leave the job, and on
August 13 the Union picketed Durham and another contractor. Alderson
testified that an exception to the agreement's no-strike clause
permitted picketing for failure to make trust fund contributions.
In sum, a reasonable person could have interpreted Durham's remarks
as an indication that he had found compliance with the
collective-bargaining agreement too expensive and that he contemplated
avoiding liability under the agreement simply by not having his company
do work covered by it in the future. /5/ Given the apparent
misunderstanding between Durham and Alderson about what constituted
"union jobs," even Durham's own claim about a statement he assertedly
had made to Alderson in August 1986 supports this view. In a pretrial
affidavit taken by Durham's attorney, and reaffirmed by Durham at the
hearing, Durham claimed that he told Alderson that it was impossible for
him to obtain a bond or worker compensation insurance and that
"therefore I did not intend to hire any union employees or take on any
union jobs or be bound by his contract." Under all the circumstances,
this simply does not rise to the level of an unequivocal total contract
repudiation. Compare A & L Underground, above, slip op. at 9 (letter
expressly repudiating agreements). We therefore find that the unfair
labor practice charge filed on March 25, 1987, was timely. /6/
ORDER
The National Labor Relations Board orders that the Respondent, Jerry
Durham Drywall, d/b/a J & S Drywall, Mansfield, Missouri, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to recognize the International Brotherhood of
Painters & Allied Trades, Local 203, as the exclusive
collective-bargaining representative of the employees in the following
appropriate unit:
All employees of Respondent performing work within the trade of
the Painters & Allied Trades, including all sandblasters, tapers,
spraymen, highmen, pressure rollers, paperhangers on commercial
job projects located within (the geographic jurisdiction of the
collective-bargaining agreement), excluding all office clerical
employees, guards and supervisors as defined in the Act.
(b) Failing or refusing to accept, give effect to, and implement the
terms and conditions of the collective-bargaining agreement between the
Respondent and the Union, for the period September 27, 1986 through
March 31, 1987.
(c) Failing or refusing to make payments to the Painters Local 203
Apprenticeship Training Fund and its Health and Welfare Fund, as
provided in the collective-bargaining agreement, for the period
September 27, 1986 through March 31, 1987.
(d) Failing or refusing to make payments to the Painters Local 203
Pension Fund, as provided in the collective-bargaining agreement, for
the period September 27, 1986 through March 31, 1987.
(e) Failing or refusing to withhold and remit to the Union authorized
dues from unit employees' paychecks, as provided in the
collective-bargaining agreement, for the period September 27, 1986
through March 31, 1987.
(f) Failing or refusing to pay its unit employees the hourly wage
scale established for their classifications in the bargaining agreement,
for the period September 27, 1986 through March 31, 1987.
(g) Failing or refusing to pay social security taxes for its
employees, for the period from September 27, 1986 through March 31,
1987.
(h) 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) Recognize the International Brotherhood of Painters & Allied
Trades, Local 203, as the exclusive representative of the Respondent's
unit employees, with respect to rates of pay, wages, and other terms and
conditions of employment, for the period September 27, 1986 through
March 31, 1987.
(b) Give retroactive effect to all terms and conditions of the
collective-bargaining agreement, for the period September 27, 1986
through March 31, 1987.
(c) Make whole, in the manner described in the remedy section of the
judge's decision, all unit employees for any loss of pay and benefits,
including payment of social security taxes, which they may have suffered
by reason of the Respondent's refusal to abide by and give effect to the
collective-bargaining agreement, for the period September 27, 1986
through March 31, 1987, with interest.
(d) Make whole the appropriate union trust funds for any failure to
make the contributions required by the collective-bargaining agreement,
for the period September 27, 1986 through March 31, 1987.
(e) Pay to the Union all authorized dues which should have been
deducted and remitted to the Union under the bargaining agreement, for
the period September 27, 1986 through March 31, 1987, with interest.
(f) 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 amounts due under the terms of this
Order.
(g) Post at the Respondent's place of business in Mansfield,
Missouri, copies of the attached notice marked "Appendix." /7/ Copies of
the notice, on forms provided by the Regional Director for Region 17,
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.
(h) 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. May 24, 1991
James M. Stephens, Chairman
Mary Miller Cracraft, Member
Dennis M. Devaney, Member
Clifford R. Oviatt, Jr., Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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.
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.
WE WILL NOT fail or refuse to recognize the International Brotherhood
of Painters & Allied Trades, Local 203, as the exclusive
collective-bargaining representative of our employees in the following
appropriate unit:
All employees of Respondent performing work within the trade of
the Painters & Allied Trades, including all sandblasters, tapers,
spraymen, highmen, pressure rollers, paperhangers on commercial
job projects located within (the geographic jurisdiction of the
collective-bargaining agreement), excluding all office clerical
employees, guards and supervisors as defined in the Act.
WE WILL NOT fail or refuse to accept, give effect to, and implement
the terms and conditions of our collective-bargaining agreement with the
Union, for the period September 27, 1986 through March 31, 1987.
WE WILL NOT fail or refuse to make payments to the Painters Local 203
Apprenticeship Training Fund and its Health and Welfare Fund, as
provided in the collective-bargaining agreement, for the period
September 27, 1986 through March 31, 1987.
WE WILL NOT fail or refuse to make payments to the Painters Local 203
Pension Fund, as provided in the collective-bargaining agreement, for
the period September 27, 1986 through March 31, 1987.
WE WILL NOT fail or refuse to withhold and remit to the Union
authorized dues from unit employees' paychecks, as provided in the
collective-bargaining agreement, for the period September 27, 1986
through March 31, 1987.
WE WILL NOT fail or refuse to pay our unit employees the hourly wage
scale, as established for their classifications in the bargaining
agreement, for the period September 27, 1986 through March 31, 1987.
WE WILL NOT fail or refuse to pay social security taxes for our
employees, for the period September 27, 1986 through March 31, 1987.
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 recognize the International Brotherhood of Painters & Allied
Trades, Local 203, as the exclusive representative of our employees in
the appropriate unit, with respect to rates of pay, wages, and other
terms and conditions of employment, for the period September 27, 1986
through March 31, 1987.
WE WILL give retroactive effect to all terms and conditions of the
collective-bargaining agreement, for the period September 27, 1986
through March 31, 1987.
WE WILL make whole all unit employees for any loss of pay and
benefits, including payment of social security taxes, which they may
have suffered by reason of our refusal to abide by and give effect to
the collective-bargaining agreement, for the period September 27, 1986
through March 31, 1987, with interest.
WE WILL make whole the appropriate union trust funds for our failure
to make the contributions required by the collective-bargaining
agreement, for the period September 27, 1986 through March 31, 1987.
WE WILL pay to the Union all authorized dues which should have been
deducted and remitted to the Union under the bargaining agreement, for
the period September 27, 1986 through March 31, 1987, with interest.
JERRY DURHAM DRYWALL,
d/b/a J & S DRYWALL
(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, 5799 Broadmoor, Suite
500, Kansas City, Kansas 66202-2408, Telephone 913--236--2766.
'Footnotes to the Decision and Order'
/1/ The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an
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.
Contrary to the judge's findings at fns. 10 and 16, Union Business
Agent James Alderson testified that the Union moved its offices from
East Sunshine Street to East Meadowmere Street, not from East Meadowmere
to East Sunshine. This error does not affect our decision.
/2/ We agree, for the reasons stated by the judge, that the Board has
jurisdiction over the Respondent under the Board's indirect inflow and
outflow standard. We therefore find it unnecessary to pass on the
alternative basis relied on by the judge.
/3/ The General Counsel cross-excepts to the judge's limiting the
remedy to those persons whom the General Counsel proved to be bargaining
unit employees. We agree that the judge improperly limited the remedy
and shall leave to compliance the identity of the unit employees subject
to the remedial order.
We leave to the compliance stage the question of whether the
Respondent must pay any additional amounts into the benefit funds to
satisfy our "make-whole" remedy. Merryweather Optical Co., 240 NLRB
1213, 1216 in. 7 (1979).
We shall modify the unit description to conform to the unit alleged
in the complaint and established by the evidence.
Finally, we shall modify the judge's recommended Order and issue a
new notice to correct inadvertent errors and more closely address the
violations found.
/4/ On matters as to which the judge made specific credibility
resolutions, the judge credited Alderson over Durham, in part on
demeanor grounds.
/5/ While the agreement does not have clear jurisdictional provisions
other than those indicating geographical coverage, art. 26(b) suggests
that individuals such as Durham are covered only when they are
performing work on commercial or industrial projects.
/6/ Member Cracraft agrees that the record does not establish that
there was a clear and unequivocal contract repudiation outside the 10(b)
period. In so finding, she relies on the Respondent's inquiry made the
day after Durham, the Respondent's owner, told the Union that he did not
intend to pay union dues, that he was a nonunion contractor and that he
would not be working on union jobs. At the union hall the following day,
Durham asked Union Business Agent Alderson what the Respondent needed to
charge in order to meet the Union's wage and benefit rates and what
needed to be done to meet the Union's bond requirements. This inquiry
was clearly and unequivocally inconsistent with a desire to repudiate
the contract. Under these circumstances, Member Cracraft finds it
unnecessary to pass on whether the Respondent's statements prior to its
inquiry, standing alone, would suffice to establish a clear and
unequivocal express contract repudiation.
Member Devaney agrees that the complaint in this case is not barred
by Sec. 10(b). The bargaining agreement was effective by its terms until
March 31, 1987. The charge was filed March 23, 1987, during the term of
the agreement. Thus, for the reasons stated in his dissenting opinion in
A & L Underground, above, Member Devaney would find the complaint here
not to be time-barred.
/7/ 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."
ERRATUM
The case number appearing on the Decision in this case, dated March
1, 1989, should read "Case No. 17-CA-13354".
Dated Washington, D.C. March 13, 1989.
Judge William A. Pope
Administrative Law Judge
Lyn R. Buckley, Esq., of Kansas City, Kansas for the General Counsel.
James W. Alderson of Springfield, Missouri for the Charging Party.
Donald W. Jones, Esq.,
Steven E. Marsh, Esq., of Springfield, Missouri for the Respondent.
DECISION
WILLIAM A. POPE, II, Administrative Law Judge: In a complaint, dated
September 18, 1987, the Acting Regional Director for Region 17 of the
National Labor Relations Board alleged that the Respondent, Jerry Durham
Drywall, d/b/a J&S Drywall, a (sole) proprietorship owned by Jerry
Durham, violated Section 8(a) (1) and (5) of the National Labor
Relations Act (the "Act") by failing to abide by or continue in full
force and effect all of the terms and conditions of a collective
bargaining agreement. /1/ The charge in this case was filed by the
International Brotherhood of Painters & Allied Trades, Local 203 (the
"Union" or "Local 203") on March 25, 1987. Trial took place between
December 7, 1987, and December 10, 1987, in Springfield, Missouri,
before Administrative Law Judge William A. Pope, II.
I. Background
Operating under the name of J & S Drywall, Mansfield, Missouri, /2/
Jerry Durham is engaged in the business of finishing drywall. Durham
has operated his business for approximately five years. During 1986 and
1987, J & S Drywall, as a subcontractor of Ozark Interiors, performed
drywall finishing work on a number of commercial remodeling and
construction jobs, most of which were located in the Springfield and
Joplin, Missouri, areas. Jerry Durham worked on J & S Drywall's jobs,
himself, and hired other drywall finishers, as needed, to help him
complete the jobs on time. The individuals hired by Durham to work on J
& S Drywall's jobs were paid as independent contractors for tax
purposes, and each of them received a 1986 Internal Revenue Service form
1099-MISC from J & S Drywall, listing the money they received from J & S
Drywall that year for their work as "Nonemployee compensation." The
parties stipulated that on or about August 13, 1986, the Union picketed
the St. John's Hospital job site in Springfield, Missouri, where the
Respondent was working, in part because of a labor dispute between the
Union and the Respondent. The parties further stipulated that on or
about April 16, 1987, the Union picketed the Holiday Inn construction
site in Springfield, Missouri, where Respondent was working, in part
because of a labor dispute between the Union and the Respondent.
II. Issues
The complaint alleges that the Respondent violated Section 8(a) (1)
and (5) of the National Labor Relations Act, by engaging in the
following unfair labor practices:
Since on or about September 27, 1986, the Respondent has failed
and refused to abide by or continue in full force and effect all
the terms and conditions of a collective bargaining agreement
between the Respondent and the Union, entered into on or about
July 29, 1985, and effective by its terms to March 31, 1987.
a. General Counsel's Tar of the Case
General Counsel argues that the evidence shows that on July 29, 1985,
Jerry Durham, the owner of J & S Drywall, the Respondent, handed James
Alderson, the business representative of Local 203, International
Brotherhood of Painters and Allied Trades, two signed and dated copies
of a collective bargaining agreement between the Respondent and Local
203. Alderson signed both copies of the agreement on behalf of Local
203, and returned one signed copy to Durham. The term of the agreement
was from July 29, 1985, to March 31, 1987. Prior to signing the
agreement, Jerry Durham and Brad Dunbar, who did drywall finishing work
for J & S Drywall, came to Local 203's office and made down payments on
the initiation fees and dues required for membership in Local 203.
Citing Section 8(f) of the Act, and John Deklewa & Sons, 282 NLRB No.
184 (1987), General Counsel asserts that as the Respondent is engaged in
the construction industry, and that the collective bargaining agreement
is enforceable regardless of whether or not a majority of Respondent's
employees had chosen the Union as their collective bargaining
representative.
There is no dispute, states the General Counsel, that the Respondent
did not pay anything into Local 203's fringe benefit funds, and failed
to pay union dues. Although the Respondent called the drywall finishers
who worked on J & S Drywall's jobs independent contractors, and did not
deduct income taxes or pay Social Security for them, in fact his workers
were employees, as defined by the Board. The record shows, argues the
General Counsel, that Jerry Durham hired workers for each job, set their
rate of pay, directed them where to work and when to be there, set
priorities on the jobs, and monitored the work in progress and
controlled the result. Unlike independent contractors, the workers had
no entrepreneurial interest in their working arrangements, did not
exercise independent judgment, and took no risks in order to increase
profits. Thus, says the General Counsel, the workers were employees of
J & S Drywall, and not independent contractors. As employees, the
collective bargaining agreement to which J & S Drywall was a party was
applicable to them.
The General Counsel asserts that the evidence of records shows that
the Respondent engaged in interstate commerce and that the Board has
jurisdiction in this case. During the period from June 1, 1986, to June
1, 1987, the Respondent performed over $50,000 worth of work for Ozark
Interiors, which was engaged in interstate commerce. Further, on
several of its jobs, the Respondent became involved in labor disputes
which could or did have a significant impact on other employers who were
engaged in interstate commerce. General Counsel cites Shore v. Building
Trades Council, 23 LRRM 2417 (3rd Cir. 1949), for the proposition that
Congress has the power to regulate labor practices in industries, such
as the construction industry, which are themselves dependent upon
interstate commerce.
General Counsel denies that this proceeding is barred by Section
10(b) of the Act. The Respondent's conduct in 1986 did not put the
Union on notice that the Respondent intended to continue to perform unit
work without applying the terms of the collective bargaining agreement.
General Counsel says that it is well settled that the Section 10(b)
period does not begin to run until the aggrieved party has clear and
unequivocal notice of conduct constituting an unfair labor practice.
The Respondent's refusal to abide by the terms of the collective
bargaining agreement in the summer of 1986 did not put Local 203 on
notice that the Respondent had repudiated the agreement, because the
Respondent stated that he would not in the future perform commercial
jobs. Furthermore, asserts the General Counsel, each refusal of the
Respondent to abide by the terms of the agreement constituted a separate
violation of the Act.
The appropriate remedy in this case, asserts the General Counsel, is
an order that the Respondent not repudiate the collective bargaining
agreement and withdraw recognition from the Union during the term of a
valid collective bargaining agreement, that the Respondent make unit
employees whole for any loss of wages or benefits that they suffered
because of Respondent's failure to abide by the collective bargaining
agreement from September 27, 1986, to March 31, 1987, and that
Respondent make whole unit employees by making contributions into the
Union's Health and Welfare Fund, Pension Fund, and Apprenticeship
Training Fund, as required by the collective bargaining agreement, and
that an appropriate notice be posted.
b. Respondent's Tar of the Case
Respondent asserts that the charge and complaint in this case are
barred by operation of Section 10(b) of the Act. According to the
Respondent, even if he entered into a valid collective bargaining
agreement on July 29, 1985, he never implemented the agreement, and any
charge or complaint based upon the agreement is barred by the six months
statute of limitations (Section 10(b)), because the charge was not filed
until March 25, 1987. Respondent argues that it is well settled that
where the initial refusal to comply with the terms of a collective
bargaining agreement occurred more than six months prior to the filing
of a charge, the charge is too late. Here, says the Respondent, the
Union knew in July 1986 that the Respondent was not keeping up his end
of the collective bargaining agreement. Furthermore, contends the
Respondent, the "continuing" violation theory is inapplicable in this
case, because there is no evidence of a demand and refusal to bargain
within the Section 10(b) period (between September 25, 1986, and March
25, 1987).
In any event, argues the Respondent, there was never a valid
agreement between the Respondent and Local 203, because there was never
a "meeting of the minds." Jerry Durham acknowledges that there were
discussions between him and James Alderson about the Respondent entering
into a collective bargaining agreement, but asserts that he withdrew his
offer to become a union contractor because he was unable to obtain
insurance and a bond, which were conditions precedent to becoming a
union contractor.
In addition to the fact that there was never a "meeting of the
minds," says the Respondent, there is no valid contract, because the
Union never communicated to him its acceptance of his offer to become a
union contractor. Consistent with this theory, the Union never acted as
though it believed it had a contract. For instance, no grievances were
ever filed under the contract, and the Union engaged in organizational
picketing against the Respondent, something which would have been
unnecessary if the Union believed it already had a collective bargaining
agreement with the Respondent. Further, Business Agent Alderson never
reported to the trustees of the fringe benefits funds that Respondent
had failed to make payments to the funds.
Moreover, argues the Respondent, even if he had entered into a
collective bargaining agreement with Local 203, as alleged, the contract
would be illegal and void, because he assisted one of his employees,
Brad Dunbar, in joining the Union as a member. In this regard, says the
Respondent, Business Agent Alderson told him he could take his employee,
Brad Dunbar, to the Union's office, and sign him up as a member of the
Union. The evidence shows that Durham and Dunbar became members of
Local 203 on July 29, 1985, the same day Durham allegedly signed a
collective bargaining agreement with Local 203. Under these
circumstances, the agreement is void because of unlawful assistance by
an employer to a union.
Respondent further argues that while Section 8(f) authorizes pre-hire
agreements in the construction industry, it does not permit a
construction contractor and a union of construction employees to enter
into a collective bargaining agreement where, as here, the majority of
the existing employees of the employer are not represented by the union.
The Respondent argues that retroactive application of the new
principles announced by the Board in John Deklewa & Sons, 282 NLRB No.
184 (1987), violates the his rights to due process and freedom of choice
guaranteed under Section 7 of the Act. Durham points out that at the
time he repudiated the collective bargaining agreement in 1986, such
repudiation was lawful under Board and court law, even assuming that a
Section 8(f) agreement then existed. The Respondent concludes that
constitutional principles indicate that a vested defense should not be
retroactively taken away, and new liabilities should not be
retroactively created.
The Respondent further asserts that the Board does not have
jurisdiction in this case, because there is no evidence of any
interstate transactions by Jerry Durham, or that Jerry Durham's business
had any affect on interstate commerce. Durham's business is a sole
proprietorship, which is local in nature. Respondent denies that there
is any evidence that his business did $50,000 or more annually in
business with any person or company, and under such circumstances,
jurisdiction should not be asserted by the Board. The indirect inflow
and outflow standards do not apply to J & $ Drywall, asserts the
Respondent, because he did not do $50,000 worth of business in a
calendar year with a person or business engaged in interstate commerce.
Finally, the Respondent asserts that he did not have any employees
during the period from September 27, 1986, through March 31, 1987, and,
therefore, he had no duties under the alleged collective bargaining
agreement. The Respondent contends that all of the persons who worked
for him during that period were independent contractors, rather than
employees. Respondent asserts that the evidence shows that 80 of
drywall workers simply walk on the job site, looking for work. He asks
them if they have their own tools, and tells them the rate of pay per
square foot. Some of the drywall workers hire their own helpers.
Durham asserts that he only uses experienced subcontractors so that he
will not have to supervise them or control the manner and means by which
they perform their work. According to Durham, he shows the workers
where to start working, but does not stay to supervise or direct them.
III. Findings and Conclusions
a. Jurisdiction
Section 10(a) of the Act empowers the Board "to prevent any person
from engaging in any unfair labor practice (listed in Section 8)
affecting commerce." As defined in Section 2(7), "the term 'affecting
commerce' means in commerce, or burdening or obstructing commerce or the
free flow of commerce, or having led or tending to lead to a labor
dispute burdening or obstructing commerce or the free flow of commerce.
As defined in Section 2(6), "the term 'commerce' means trade, traffic,
commerce, transportation, or communication among the several States . .
."
As stated by the Supreme Court in NLRB v. Fainblatt, 306 US 601,
604-605 (1939), "an employer may be subject to the National Labor
Relations Act although not himself engaged in (interstate) commerce." "
The power of Congress extends to the protection of interstate commerce
from interference or injury due to activities which are wholly
intrastate."
In general, the Board's jurisdiction extends to "labor disputes"
"affecting" interstate commerce. /3/ Congress has the power to regulate
interstate commerce, regardless of the volume. NLRB v. Fainblatt,
supra, 306 US at 606. Congress did not set any limitation upon the
Board's jurisdiction based upon the volume of interstate commerce
involved, other than the inference that it be more than that to which
the courts would apply the maxim de minimis. NLRB v. Fainblatt, supra,
306 US at 606-607. The Board, however, has set standards concerning the
minimum annual dollar volume of certain categories of businesses which
must be exceeded before it will assert jurisdiction. For nonretail
enterprises, such as the Respondent's business, the gross outflow or
inflow across State lines must be at least $50,000, regardless of
whether such outflow or inflow is regarded as direct or indirect.
Siemons Mailing Service, 122 NLRB 81, 83-84 (1958), supplemented, 124
NLRB 594 (1959). /4/
It is well established that "what affects the building industry in a
given community affects interstate commerce." Shore v. Building &
Construction Trades Council, 173 F.d 678, 681 (3rd Cir. 1949), (in
which it was held that while one small work stoppage in the building
industry may have no immediately perceptible effect upon interstate
commerce, many such stoppages will have such effect, and, therefore,
Congress may, through its power to regulate what affects interstate
commerce, regulate labor practices in industries which are themselves
dependent upon interstate commerce.)
The jurisdictional issues in this case are what jurisdictional
standard must the Respondent meet before the Board will assert
jurisdiction, and does the evidence show that his business met that
standard. The Respondent is not engaged in retail trade and does not
sell a product. The Respondent sells a service to the construction
industry, specifically drywall finishing. Clearly, therefore, the
jurisdictional standard which the Respondent must meet before the Board
will assert jurisdiction is the standard applicable to nonretail
enterprises, as stated above.
The Board has said that "its jurisdictional criteria expressed in
terms of annual dollar volume of business do not literally require
evidentiary data respecting any certain 12-month period of operation."
Reliable Roofing Company, 246 NLRB 716, footnote 1 (1979), citing United
Mine Workers of America, District 2 (Mercury Main and Construction
Corporation, 96 NLRB 1389, 1390-91. In Reliable Roofing Company, a,
the Board found jurisdiction based upon the employer's most recent
complete fiscal year preceding the unfair labor practices. The Board
has also approved the use of the last full calendar year preceding the
year in which the alleged unfair labor practices occurred, and the most
recent calendar year preceding the year of the hearing and decision.
Reliable Roofing Company, supra, 246 NLRB at 716, footnote 1, citing
Frank P. Slater, d/b/a Acme Equipment Company, 102 NLRB 153, 161
(1953), and Aroostook Federation of Farmers, Inc., 114 NLRB 538 (1955).
In the same case, the Board cited with approval the administrative law
judge's decision in Larry Blake's Restaurant and Rathskeller d/b/a
Blake's Restaurant, 230 NLRB 27, 28 (1977), in which the administrative
law judge stated that the Board could rely on the experience of an
employer during the most recent calendar or fiscal year, or the 12-month
period immediately preceding the hearing. In The District Court of
Tenth Judicial District of the State of Idaho (Cox's Food Center, Inc.),
164 NLRB 95, 96 (1967), also cited by the Board in Reliable Roofing
Company, supra, the Board said 'it would have asserted jurisdiction even
though the employer's gross volume fell below the required amount in
"'the year the dispute arose' involving picketing and decreased sales."
The General Counsel contends that Respondent met the $50,000
jurisdictional test, because he performed over $50,000 worth of work for
Ozark Interiors, which is engaged in interstate commerce, during the
period from June 1, 1986, to June 1, 1987. The General Counsel further
asserts that the Respondent was involved in a labor dispute which
affected commerce, on two occasions when the Union picketed job sites
where the Respondent was working. The Respondent acknowledges that the
Respondent did $23,849.92 worth of business with Ozark Interiors in
1986, and $41,480.41 worth of business in 1987, but disputes that the
Respondent did $50,000 worth of business in any one year, or that he was
involved in interstate commerce.
I find that the Board has jurisdiction in this case, for either one
of two reasons. First, the Respondent, while not himself engaged in
interstate commerce, is involved in the construction industry, which is
dependent upon interstate commerce and is subject to regulation under
the Act, and furnished services valued in excess of $50,000 to a Ozark
Interiors, a firm whose operations satisfy the Board's jurisdictional
standards. Second, the Respondent was involved in a labor dispute which
affected interstate commerce through picketing by the Charging Party
Union which shut down two major constructions projects which were
involved in interstate commerce. Each of the projects was shut down by
picketing for one day.
Contrary to Respondent's assertion, the Board's exercise of
jurisdiction is not dependent upon an employer's volume of business
during any one calendar year. It is well within the scope of the
Board's decisions to base jurisdiction upon a 12-month period which
includes the date on which the charge was filed. In this case there is
financial evidence in the record of this proceeding covering the period
from June 1, 1986, through May 31, 1987, a 12-month period which
includes the filing of the charge in this case on March 25, 1987,
showing that Respondent furnished services valued in excess of $50,000
in a 12-month period of time to Ozark Interiors, a higher level
construction industry subcontractor who was engaged in interstate
commerce. /5/ Respondent's billings to Ozark Interiors between June 2,
1986, and December 31, 1986, for drywall finishing work performed by the
Respondent for Ozark Interiors on various construction or remodeling
projects, amounted to approximately $23,157.00. During 1987, the
Respondent did drywall finishing work for Ozark Interiors, amounting to
$41,480.41, of which at least $35,000.00 was for Respondent's work on
the Holiday Inn construction project, which Respondent completed in May
1987. Thus, during the 12-month period, Respondent met the Board's
jurisdictional standard by furnishing services valued in excess of
$50,000 to a construction industry subcontractor whose operations in
interstate commerce met the Board's standards.
The labor dispute between the Respondent and the Charging Party led
to two work stoppages on construction projects for which DeWitt and
Associates was the general contractor and Ozark Interiors was a
subcontractor. The Respondent, in turn, was a subcontractor of Ozark
Interiors on these projects. The first project was extensive remodeling
and construction at St. John's Hospital, Springfield, Missouri, which
took place over the period from January 1986 through December 1987. The
total value of DeWitt and Associates' jobs at St. John's Hospital was
approximately $8,178,489. The Respondent was a subcontractor of Ozark
Interiors on the Lithotripter job (part of the St. John's Hospital job)
in August 1986. The total cost of that job was $103,864 The second
project was the construction of a new Holiday Inn in Springfield,
Missouri, which took place between February 1986 and June 1987. DeWitt
and Associates was the general contractor on that job, which was valued
at $4,025,000. Respondent was working on the job as a subcontractor of
Ozark Interiors in April 1987. Both projects involved extensive use of
supplies moving in interstate commerce, and services performed by
contractors from outside the State of Missouri.
On or about August 13, 1986, the Charging Party Union picketed the
St. John's job because of its labor dispute with the Respondent.
During the one day that picketing took place, all work stopped on the
three projects then in progress: The Hammons Heart Institute (a
$4,274,833 project), the Cardio Cath Lab (a $362,407 project), and the
Lithotripter job (a $103,864 project) on which the Respondent was
working as a subcontractor of Ozark Interiors. Among the crafts which
refused to cross the picket line were pipe fitters, electricians,
carpenters, sheet metal workers, metal stud installers, tapers,
painters, elevator installers, pool installers, and laborers.
On or about April 16, 1987, the Charging Party Union picketed the
Holiday Inn construction project because of its labor dispute with Ozark
Interiors (and its alter ego, Union Interiors), and the Respondent.
Again, all of the crafts working on the project refused to cross the
picket line, and all work on the project was halted for the one day that
picketing by the Charging Party Union took place. At the time, there
were 73 people at work on the job, including carpenters, laborers,
operating engineers, bricklayers, electricians, pipe fitters, sheet
metal workers, roofing workers, technicians, floor covering workers, and
painters. The Respondent, who was a subcontractor of Ozark Interiors,
had drywall finishers at work on the project.
The impact of the work stoppages was to delay construction work on
the projects, not only by the Respondent, but by all of the contractors,
subcontractors, and workmen working on the job at the time. The work
stoppage had the further chain reaction effect of setting back the work
schedule for completion of other work required to complete the project.
While there is no way to ascertain the total monetary cost of the work
stoppages, it is beyond dispute that the work stoppages had some affect
on interstate commerce. As previously noted, the relative size of the
impact on the flow of interstate commerce resulting from a work stoppage
in the construction industry is not a factor in establishing the Board's
jurisdiction. The Board has jurisdiction over labor disputes which
affect interstate commerce, and with regard to the construction
industry, which is heavily dependent on interstate commerce, it has been
held that even small labor disputes affect interstate commerce. The
Board's jurisdiction in this case, therefore, is clearly established.
b. Collective Bargaining Agreement
From the evidence of record, I find that on or about July 29, 1985,
the Respondent entered into a binding collective bargaining agreement
with Local 203, which agreement, by its terms, did not expire until
March 31, 1987.
Jerry Durham, d/b/a J & S Drywall, is engaged in the building and
construction industry. International Brotherhood of Painters & Allied
Trades, Local 203, the Charging Party, is a labor organization whose
members are employed in the building and construction industry. Section
8(f) of the Act permits an employer engaged primarily in the building
and construction industry to enter into a prehire agreement "covering
employees engaged (or who, upon their employment, will be engaged) in
the building and construction industry with a labor organization of
which building and construction employees are members. . ." There are,
however, two statutory qualifications applicable to prehire agreements
under Section 8(f). First, Section 8(f) does not validate prehire
agreements where the union has been established, maintained, or assisted
by any action of the employer which violates Section 8(a) (2) of the
Act. Second, a prehire agreement under Section 8(f) does not bar an
election petition subsequently filed to determine the majority
representative.
In the recent case of John Deklewa & Sons, 282 NLRB No. 184 (1987),
enforced sub nom. Iron Workers Local 3 v. NLRB, 128 LRRM 2020 (3rd Cir.
1988), the Board announced it was abandoning its existing
interpretations of Section 8(f), and announced four new basic principles
for the interpretation and application of Section 8(f). As stated by
the Board in Deklewa, supra, slip opinion at page 30:
When parties enter into an 8(f) agreement, they will be
required, by virtue of Section 8(a) (5) and Section 8(b) (3) , to
comply with that agreement unless the employees vote, in a
Board-conducted election, to reject (decertify) or change their
bargaining representative. Neither employers nor unions who are
party to 8(f) agreements will be free unilaterally to repudiate
such agreements. During its term, an 8(f) contract will not act
as a bar to petitions pursuant to Section 9(c) or (e). In
determining the appropriate unit for election purposes the Board
will no longer distinguish between "permanent and stable" and
"project by project" work forces, and single employer units will
normally be appropriate.
In Deklewa, the Board further held that "(b)eyond the operative term
of the contract, the signatory union acquires no other rights and
privileges of a 9(a) exclusive representative." Slip opinion at page 36.
Thus, after the expiration of an 8(f) contract, a "union enjoys no
continuing presumption of majority status, and the Respondent is not
compelled to negotiate or adopt a successor agreement based solely on
the existence of an 8(f) relationship." Slip opinion at pages 42-43.
Concerning retroactive application of the new principles, the Board
stated in Deklewa that ". . . we will apply the Board's new 8(f)
principles to this case and to all pending cases in whatever stage."
Slip opinion at page 42. The Board's retroactive application of Deklewa
was upheld by the Third Circuit in Iron Workers v. NLRB, supra. The
Board, in a subsequent case, applied Deklewa retroactively in deciding
to defer to arbitration awards which involve pre-hire contracts. Mis
Inc., 289 NLRB No. 62 (1988). But, a Federal district court refused to
apply Deklewa retroactively in a case involving an employer's refusal to
pay pension fund contributions after repudiating a pre-hire contract.
National Automatic Sprinkler Industry Pension Fund v. American Automatic
Fire Protection, 680 Supp. 731 (DC Md 188). In accordance with the
Board's view, as upheld by the Third Circuit Court of Appeals, I find
that the Deklewa principles are controlling in the instant case.
Section 8(a) (2) of the Act makes it an unfair labor practice for an
employer "to dominate or interfere with the formation or administration
of any labor organization or contribute financial or other support to it
. . ." The difference between unlawful domination and interference is a
matter of degree, with unlawful interference being the lesser offense.
The Board has said that there is no impropriety where there is no
evidence "demonstrating the absence of an arm's length relationship
between employer and union." Coppinger Machinery Service, 279 NLRB 609,
611 (1986). In that case, the Board found no violation of Section 8(a)
(2), by unlawful support of a union by an employer, resulting from
"cooperation of a ministerial character growing out of an amicable
labor-management relationship." Coppinger Machinery Service, supra, 279
NLRB at 611.
According to James Alderson, the business agent for Local 203, Jerry
Durham asked him on July 29, 1985, what was involved in becoming a union
contractor. Durham explained that he had a job in Kansas City, for
which he had to be a union contractor and a union member. Alderson
testified that he told Durham that the latter would have to sign and
abide by a contract, and employ one journeyman before he could work on
the job himself. Alderson stated that his conversation with Durham on
that day took place at the Ramada Hawthorn Hotel in Springfield,
Missouri, where Alderson was working on a job.
The next day, testified Alderson, while he was working on the same
job, Durham handed him two copies of the joint working agreement, which
Durham had already signed and dated. /6/ According to Alderson, he
signed both copies of the agreement, returned one to Durham, and kept
the other. During the conversation, Durham asked Alderson if he would
have any problem working in the Kansas City area if he showed the
business agent of the local union having jurisdiction over that area
that he was a brand new member of Local 203, or had applied for
membership. Alderson testified that he told Durham that Local 203 would
issue separate receipts to Durham and Brad Dunbar for initiation
payments and dues payments, and that all Durham would have to show to
the business agent of the local union in Kansas City was the dues
receipt. /7/ Alderson stated that he did not talk to Brad Dunbar about
becoming a Union member, nor was it his understanding that Jerry Durham
was going to pay Dunbar's dues, but, he acknowledged that he told Durham
that the latter could take Brad (Dunbar) to the Union's office and have
him sign up (as a member of the Union).
Local 203's records show that Brad Dunbar joined Local 203 on July
29, 1985, and, made additional payments towards his initiation fee in
August and September 1985; and, that Jerry Durham first joined Local
203 on September 14, 1983, and subsequently made irregular payments of
various fees to Local 203, the last such payment having taken place on
July 29, 1985. /8/ Linda Alderson (James ff. Alderson's wife), who is
employed as a secretary by Local 203, testified that Jerry Durham and
Brad Dunbar came to the Union's office on July 29, 1985, signed up as
members of the Union, and made payments on their initiation fees. At
that time, Durham asked for a copy of the contract, and she gave him two
copies. A few days later, Durham came into the Union's office again,
and asked her questions about the contract. He did not leave a signed
copy of the contract. Mrs. Alderson testified that her husband, James
W. Alderson, brought in a copy of the contract with Durham's signature
on it.
Mrs. Alderson testified that Brad Dunbar probably came to the
Union's office on two other occasions, and that he made more payments on
his initiation fee than Durham made on his. /9/
According to Mrs. Alderson, Durham later came into the Union's
office, and stated that he could not obtain the bond required by the
collective bargaining agreement to secure his payments to the Union's
fringe benefits funds. She testified that she told him to check with
Ollis & Company about obtaining a bond. Mrs. Alderson said that
conversation took place after Local 203 had moved its office from
Sunshine (Street) to Meadowmere (Street). /10/
James Alderson stated that he was never present in the Union's office
when Jerry Durham came there accompanied by Brad Dunbar. /11/ Alderson
testified that on later occasions, not all of which were in 1985, he met
with Durham, alone, in the Union's office, and they talked about the
contract (Joint Working Agreement). Alderson said that Durham never
said he could not get a bond, but that he did ask what would happen if
he could not get one.
Admitted into evidence is a document entitled "Joint Working
Agreement," which Alderson identified as the agreement which he and
Durham signed. The document bears the handwritten signature of "Jerry
C. Durham," in black ink, under the printed word "EMPLOYER", and the
partially handwritten date of signing, also in black ink, as follows,
with the handwritten part underlined: "SIGNED this 29 day of JUne
1985." The number "5" is handwritten over the printed number "4" in the
printed year "1984". Under the printed words "PAINTERS LOCAL 203"
appears the handwritten signature, in blue ink, of "J. W. Alderson."
The signature of "Jerry C. Durham" and the handwritten month of "July"
in the date appear to be in the same person's handwriting, using the
same pen. The handwritten number "29", appearing in the blank space
preceding the printed word "day", and the handwritten number "5",
superimposed over the the printed number "4" in the printed year "1984",
seem to have been handwritten with the same pen used in writing the
signature of "Jerry C. Durham" and the word "July".
The Joint Working Agreement provides for a union dues check-off
system, and requires the employer to carry workmen's compensation,
public liability, and property damage insurance. The employer is also
required to maintain a bond "to cover all deductions and contributions
due the Union and any trust funds." The Agreement requires the employer
to make payments to the Union's Apprenticeship Training Fund, and Health
and Welfare Fund.
Jerry Durham, admitted that he did not pay anything into the Union's
fringe benefit funds or its Apprentice Training Fund during the period
from September 27, 1986, through March 29, 1987. /12/
Alderson testified that the next time he saw Durham was in June or
early July 1986, on the St. John's Regional Health Center job. On that
occasion, Alderson told Durham that he and Brad Dunbar were behind in
paying their union dues, and he asked Durham when he thought they would
catch up. Durham replied that he would not be paying any more dues,
that he was a non-union contractor, and that he was not working on union
jobs. Durham disputed that the St. John's job was a union job.
Alderson testified that he told Durham that the contract (Joint Working
Agreement) which he had signed covered all jobs, and made no distinction
between union and non-union jobs. Durham asked if he had signed a
contract with the Union. Alderson testified that he told Durham that he
had a copy (of a Joint Working Agreement) with Durham's signature on it.
Durham replied that if his signature was on it, he must have signed it.
Durham stated that he could not afford to be in the Union, or pay union
scale wages and benefits, and said that he was going to finish up that
job and get out of commercial work.
The following day, according to Alderson, he had conversation with
Durham at the Union's office. Durham inquired how much he would have to
charge per square foot for finishing sheet rock in order to pay union
scale wages and benefits. Alderson testified that he told Durham that
the Union's accountant could help Durham figure that out, and he told
Durham that the Union needed to know that Durham had Missouri workmen's
compensation insurance (and that most people would require that he have
public liability insurance before he could work on jobs). In response
to Durham's question concerning what would happen if he could not obtain
a $5,000.00 bond to cover payments to the Union's benefits funds,
Alderson said he told Durham that the Union had waived that requirement
for some small employers, with only one or two employees, while some
employers had put up a cash deposit and other employers had purchased
certificates of deposit in the name of their company and the Union's
trustees.
According to Alderson, the Union picketed the St. John's job for one
day on approximately August 13, 1986. The picket sign in front of the
Hammons Heart Institute read "Painter Local 203 on Strike against Union
Interiors, Incorporated." The sign in front of the St. John's Regional
Health Center read the same, except that the strike was against Jerry
Durham Drywall or, according to Alderson, possibly J & S Drywall. The
reason for the picketing was the failure of the Respondent to make
payments to the Union's fringe benefits funds. Alderson acknowledged,
however, that he did not send a letter to Jerry Durham informing him of
the purpose of the picketing or the requirement that he make payments.
That requirement, said Alderson, was contained in the contract, which
Durham had signed.
Alderson testified that he next saw Durham on August 20, 1986,
working on the St. John's job. On that particular day, Durham and Brad
Dunbar were working side by side taping and finishing a wall. In
response to Alderson's question to Durham concerning his intentions,
Durham said that he had been told by the job superintendent to get off
the job and guessed he would have to get off commercial work altogether.
/13/ Alderson testified that he called Ted Smith, the president of
DeWitt and Associate, who said he would get Durham off the job, and
followed through on that promise. Alderson stated that Durham should
have made payments to the Union's benefit funds for the work he
performed on the St. John's project in July and August 1986, but,
Alderson, admitted, he never talked with Durham about money owed to the
Union for anything other than dues.
In March 1987, Alderson testified, he saw Jerry Durham, Brad and
Frank Dunbar, James McGill, and two others Alderson did not know, doing
drywall finishing work on the new Holiday Inn project. Earlier in March
1987, Alderson had observed two drywall' finishers he did not know
working on the Holiday Inn job. They told him that Jerry Durham had
sent them.
On March 23, 1987, Melvin Painting Company employees walked off the
Holiday Inn project, because there were non-union tapers working on the
job. Alderson said that he did not see Jerry Durham or his pickup truck
on the job on March 23, 1987, but he thought that as of that date Durham
had repudiated the collective bargaining agreement, and Alderson filed
the charge in this case on that day. On April 16, 1987, the Union
picketed the Holiday Inn job site because non-union drywall finishers
were working on the job.
Alderson stated that he did not send Durham any correspondence
informing the latter that he was required to make payments to the
Union's benefit funds, nor did he inform Durham that the Union was
relying on the contract when it picketed the job sites where Durham was
working. While there is a no strike clause in the contract, Alderson
said, the contract also provides that the Union can take whatever steps
are.necessary when an employer fails to make contributions to the
Union's benefit funds within 10 days after the date required by the
Union. Alderson acknowledged that the Union did not make use of the
contract's grievance procedures concerning its dispute with the
Respondent.
Jerry Durham testified that he re-joined the Union on July 29, 1985,
in order to do some work in the Kansas City, Missouri, area. /14/
According to Durham, he and Brad Dunbar went to the Union's office on
Sunshine Street, where they both signed up as members, made payments
(towards dues and initiation fees), and received receipts and work
cards. Durham stated that he did not recall seeing Alderson on that
occasion. He denied that he signed the Joint Working Agreement at that
time.
Durham acknowledged that he performed drywall finishing work on the
St. John's hospital project in July, August, and possibly September
1986. /15/ He said that he began working on the new Holiday Inn job in
March 1987, and that at times he had as many as 10 to 12 workers on the
job. Durham said he worked on both the St. John's job and the new
Holiday Inn job as a subcontractor of Ozark Interiors.
Durham testified that he had hoped to get additional work finishing
50,000 square feet of sheetrock on the St. John's job. However, after
the picketing by the Union, he was told by Ozark Interiors that he would
have to leave the job because there was a union problem.
By an invoice bearing the date of July 14, 1986, Jerry Durham billed
Ozark Interiors $521.14 for the work he had done on the Lithotripter
part of the St. John's Hospital project. He testified that he had
performed the work during the second week of July 1986, and that Brad
Dunbar had worked with him part of the time. Durham said that while
working on that job, he had a conversation with James Alderson, during
which Alderson told him that the job was a union job. The next day,
Durham said, the Union picketed the job. Durham said that he completed
the part of the project he was working on, but he was unable to get the
job of doing an additional 50,000 square feet of drywall finishing work
on the project, because Ozark Interiors told him that there was union
trouble and he had to leave.
Durham testified that a day or two after seeing Alderson on the St.
John's job, he went to the Union's office on Meadowmere Street, /16/
because he wanted to ask to Alderson what he would have to do to become
a union contractor, so that he could get the job of finishing the
additional 50,000 square feet of drywall on the St. John's job from
Ozark Interiors. He spoke to Alderson in a large room, in which the
Union's secretary was also present, but not within hearing distance.
According to Durham, Alderson told him he would have to sign a contract
and comply with its terms. Durham stated that Alderson was unable to
say how much Durham would have to raise his bids to cover his additional
costs, nor did Alderson know how much the insurance and bond required by
the contract would cost. From Alderson, Durham testified, he received a
copy of the contract, but he did not sign it at that time. Durham said
he did not believe that Alderson had signed it as of then, either. In
fact, Durham said, he never saw or received a copy of the contract with
both signatures on it.
Durham testified that he subsequently signed the contract, but denied
that he met again with Alderson before doing so. According to Durham, a
day or two after he talked to Alderson in the Union's office, he went
back to the office, and in Alderson's absence, signed one copy of the
contract, which he gave to Alderson's secretary, and requested that she
give it to Alderson. Durham admitted that he signed General Counsel's
Exhibit 10, but denied that Alderson had already signed it for the
Union, or that Alderson ever signed in his presence. He said that he
did not subsequently receive a copy of the contract bearing Alderson's
signature, nor did anyone inform him that Alderson had accepted the
contract.
Durham denied that after signing the contract (CC Exhibit 10), he
required anyone who worked on his jobs to join the Union, pay dues or
initiation fees to the Union, or be referred through the Union hiring
hall.
Both Durham and his wife, Sandra, testified that Durham was unable to
obtain the necessary insurance and bond. After trying without success
to obtain the insurance and bond, Durham said, he met again with
Alderson in the Union's office, at which time he told Alderson that he
had not been able to obtain the insurance and bond. According to
Durham, he told Alderson that he did not intend to hire any union
employees or take union jobs, and that he did not intend to be bound by
the contract. Altogether, according to Durham, he went to the Union's
office three times, but he saw Alderson only during the first and third
occasions.
Durham testified that he had never started performing as a union
contractor, and never treated the contract as binding upon him. He
stated that he was unaware that Alderson was going to claim there was a
binding contract until he had a conversation with Alderson on the
Holiday Inn job a day or two before March 25, 1987.
Durham fixed the date on which he signed General Counsel's Exhibit 10
(the Joint Working Agreement) as a few days before July 17, 1986, the
date of a notice he received from an insurance agency stating that his
application for a labor bond had not been approved by the home office.
/17/
On balance, after considering the Respondent's demeanor as a witness
and the improbability of much of his testimony on key points, I do not
credit the Respondent's testimony concerning when he signed the
collective bargaining agreement with the Union.
A comparison of 'the handwritten signature of Jerry C. Durham on the
collective bargaining agreement, which Respondent admits is his, with
the handwritten portions of the date of July 29, 1985, the date of
signing, as shown on the original collective bargaining agreement,
discloses even to a layman's eye, that the handwritten portions of the
date were written by the same person, with the same pen, as was the
signature of Jerry C. Durham. From this, I conclude that Jerry C.
Durham signed the collective bargaining agreement with the Union, and
fixed the date of signing as July 29, 1985.
Jerry Durham's claim that he signed the collective bargaining
agreement, leaving the day and month of signing blank (1984 was already
printed on the unsigned contract form as the year signed), is incredible
on its face. Further, his claim that he signed the agreement a few days
before July 17, 1986, the date of a notice which he received from an
insurance agency denying his application for a labor bond required by
the agreement, is at odds with the chronology of events which he claimed
led up to his signing the agreement in the first place.
According to Durham, he billed Ozark Interiors on July 14, 1986, a
couple of days after he completed the work, for his work on the
Lithotripter area of the St. John's Hospital project. It was while
working on that job during the second week of July 1986, he said, that
the Union picketed the job site, an action which he said precluded him
from receiving an order to do an additional 50,000 square feet of
drywall finishing in the Lithotripter area. It was to get this
additional work, according to Durham, that he decided to become a union
contractor. But it is clear from the testimony of Ted Smith, the
representative of DeWitt and Associates, the general contractor on the
St. John's Hospital job, that the picketing by the Union to which
Durham referred did not occur until on or about August 13, 1986, a month
later, more or less. That date corresponds to the date which James
Alderson, the Union's business agent, gave as the date his Union
picketed the St. John's Hospital job. From this, I conclude that Jerry
Durham did not sign the collective bargaining agreement during the time
frame which he claimed.
I credit the testimony of Mrs. Alderson, the Union's secretary, that,
contrary to Jerry Durham's testimony, he did not give her a copy of the
collective bargaining agreement bearing his signature. I find Mrs.
Alderson to be a credible witness, who testified candidly and
forthrightly that she received the signed collective bargaining
agreement from her husband, James Alderson.
While there is a discrepancy between James Alderson's prehearing
statement and his testimony during the hearing as to how the copy of the
collective bargaining agreement bearing the Respondent's signature came
into the Union's possession, I conclude that his testimony concerning
the time when the agreement was signed is plausible and believable.
Accordingly, based on these factors, as well as his forthright and
candid demeanor while on the stand as a witness, I accept Alderson's
testimony that he received two signed copies of the agreement from the
Respondent on or about the date of signing shown on the agreement, July
25, 1985, and that he signed both copies for the Union, and returned one
of them to the Respondent. Alderson was not asked to explain the
discrepancy between his prehearing statement and his testimony on this
point during the hearing. Recollections may vary with time, and details
not recalled at one time may be recalled at another. In this instance,
based on his demeanor as a witness, I conclude that his testimony during
the hearing was his most accurate and complete recollection of the
signing of the agreement.
Among other factors I have considered in determining that Alderson's
testimony during the hearing is reliable, there is no evidence of any
benefit flowing to the Union regardless of whether the agreement was
signed in 1985, as claimed by Alderson, rather than in 1986, as claimed
by Durham, such as might have given Alderson a motive to falsify the
date of signing of the agreement. The events which are the basis of the
charge in this case allegedly occurred in 1987, which is after the date
of signing claimed by either Alderson or Durham.
The Respondent's claim that even though he may have signed the
agreement, he did not know it had been accepted by the Union, and,
therefore, there was no acceptance of his offer and no contract, is
unbelievable in light of his subsequent conduct. /18/ Respondent
admitted visiting the Union office on one or more occasions after he had
signed the agreement to explain his difficulties in obtaining the bond
and insurance coverage required by the agreement. It is obvious from
his conduct that Durham thought there was an agreement in place; the
suggestion that he did not know the Union's representative had also
signed the contract, or that the Union was waiting for him to get the
required insurance before signing the agreement, is ludicrous. There is
no suggestion in the record that either the Respondent or the Union
considered the agreement to be binding only if the Respondent succeeded
in complying with the insurance and bond requirements contained in the
agreement. James Alderson informed the Respondent that the bond
requirement might be waived, but the Respondent never asked for a
waiver. Mrs. Alderson gave the Respondent the name of bonding agency
which might provide the Respondent with the bond required by the
agreement, but the Respondent never contacted the agency. It is clear
that the Respondent knew there was a binding agreement; he simply
decided to ignore it.
As noted above, under principles announced by the Board in John
Deklewa & Sons, supra, which are applicable retroactively, neither party
to a Section 8(f) agreement may unilaterally repudiate the agreement
during its term. Any attempt by the Respondent in this case to
repudiate his agreement with the Union during the term of that agreement
was of no effect.
Finally, I find no evidence that the Respondent violated the Act by
dominating or interfering with the Union. There is no evidence
suggesting that there was anything other than an arm's length
relationship between the Respondent and the Union. The Respondent, in
fact, denied that he required anyone who worked on his jobs to join the
Union, pay dues or initiation fees to the Union, or be referred through
the Union hiring hall.
c. Section 10(b) Issue
I find that the complaint in this case is not barred by Section 10(b)
of the Act.
Section 10(b) of the Act provides:
That no complaint shall issue based upon any unfair labor
practice occurring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof upon the
person against whom such charge is made.
The Board has said that "(i)t is well established that 'the 6-month
limitations period prescribed by Section 10(b) does not begin to run on
an alleged unfair labor practice until the person adversely affected is
put on notice, actually or constructively, of the act constituting it.'"
Metromedia, Inc. KMBC-TV, 232 NLRB 486, 488 fn. 20 (1977). In the
instant case, it is not disputed that the Union did not file a charge
with the Board within six months after it first believed that the
Respondent was not complying with the terms of the collective bargaining
agreement which he had signed on or about JuLy 29, 1985. The Union and
the Respondent agree that the Respondent made no payments to the Union's
fringe benefits funds at any time after he signed the agreement. As
early as June or July 1986, the Union was convinced that the Respondent
was not complying with the collective bargaining agreement, and on or
about August 13, 1986, it picketed a job on which the Respondent was
working because the Respondent had not made any payments to the Union's
fringe benefit funds. The Union did not file its charge with the Board,
however, until March 25, 1987, more than eight months after the
picketing, and even longer after it first believed that the Respondent
was not complying with the agreement.
The Board has also said, however, that "each failure to make
contractually required monthly benefit fund payments constitute Is) a
separate and distinct violation (of Section 8(a) (5))." Farmingdale Iron
Works, Inc., 249 NLRB 98, 99 (1980). Thus, each failure of the
Respondent to make a contractually required benefit fund payment after
September 27, 1986, /19/ is a violation of the Act which is subject to
the Board's remedial powers.
I find that there is credible evidence that during the six months
period preceding the filing of the charge by the Union, the Respondent
performed drywall finishing work which was covered by the collective
bargaining agreement which he signed, and that he failed to comply with
the agreement with respect to this work by not paying his employees in
accordance with the agreement and by failing to make the payments to the
Union's fringe benefit funds as required by the agreement. Accordingly,
I find that the charge filed by the Union was based upon unfair labor
practices occurring within six months of the filing of the charge.
d. The Employee vs. Independent Contractor Issue
I find that there is sufficient evidence to establish that at least
some of the persons who worked on Respondent's drywall finishing jobs
after September 25, 1986, were employees, as defined by the Act, and not
independent contractors, as claimed by the Respondent. Included as
employees are Frank and Brad Dunbar, who the Respondent stated he tried
to keep busy generally, and Timothy Huckin and James Amos, two drywall
finishers who worked for Respondent for a brief period of time on the
John Q. Hammons Trade Center job in Joplin, Missouri. There is
insufficient evidence in the record from which it can be determined
whether others who worked for Respondent on his various jobs during the
same period of time were employees or independent contractors.
Section 2(3) of the Act specifically excludes "independent
contractors" from the definition of "employees". In determining the
employee-independent contractor issue, the Board applies the common law
"right of control" test. National Freight, Inc., 146 NLRB 144, 145-146
(1964) /20/ More recently, the Board stated in H & H Pretzel Company,
277 NLRB 1327, 1328 (1985):
In determining the status of individuals alleged to be
"independent contractors," the Board applies a "right of control"
test. If the person for whom the services are performed retains
the right to control the manner and means by which the results are
to be accomplished, the person who performs the services is an
employee. If only the results are controlled, the person
performing the is an independent contractor. A. S. Abel
Publishing Co., 270 NLRB 1200 (1984). /21/
In addition to applying the common law right-of-control test to
determine whether individuals are employees or independent contractors,
the Board has also said that "for an independent contractor relationship
to exist, the arrangement most typically should exhibit entrepreneurial
or proprietary characteristics." Roadway Package System, Inc., 288 NLRB
No. 22, Slip Opinion at page 7 (1988) /22/ Similarly, in determining
employee or independent contractor status, the Ninth Circuit, in
Merchants Home Delivery Service, Inc. v. NLRB, 580 F.2d 966, 973 (9th
Cir. 1978), also considered such other factors as (1) entrepreneurial
aspects of the individual's business, (2) risk of loss and opportunity
for profit, and (3) the individual's proprietary interest in his
business. Factors found by the Board not to necessarily preclude
employee status include authority to use or hire replacements and
helpers, and the lack of wage withholdings or benefits accorded other
employees. Roadway Package System, Inc., supra; Mission Foods
Corporation, supra.
The collective bargaining agreement which the Respondent signed
required the Respondent, among other things, to deduct and pay Social
Security taxes for all employees; pay employees according to an hourly
scale contained in the agreement; contribute monthly to the Painters
Local 203 Apprenticeship Training Fund an amount based upon a rate of
five cents for each hour an employee receives pay; and contribute to
the Union's Health and Welfare Fund on a monthly basis at a rate
specified in the agreement for each hour or portion thereof that an
employee receives pay.
The Respondent and his wife, Sandra Durham, who keeps her husband's
business records, claim that all of the persons who work for J & S
Drywall are subcontractors. Nothing is withheld from their pay by J & S
Drywall, and, according to Sandra Durham, she files for each person or
entity who does work for J & S Drywall an IRS Form 1099-MISC, declaring
the money which they received from J & S Drywall to be "nonemployee
compensation." Placed in evidence by the Respondent are copies of IRS
Form 1099-MISC (Miscellaneous Income), for the year 1986, identifying "J
& S Drywall/Jerry C. Durham" as the payer, and the following individuals
as recipients of the "nonemployee compensation" shown:
Frank Dunbar $2,016.50
Thomas G. Durham 1,862.92
Fred Nelson 3,259.00
Brad Dunbar 9,463.50
Bill Mundun /23/ 1,200.00
John Ryan 946.99
Respondent's check journal for all or parts of the months from
September 1986 to April 1987, contains records of numerous checks to
various payees, described as being for subcontractor labor. According
to the Respondent, those checks were used to pay for his "subcontract
labor." The Respondent stated that he usually paid for labor upon
completion of the job; however, on longer jobs, he paid for labor on a
weekly basis. The most frequent recipients of subcontract labor checks
were Brad Dunbar, Frank Dunbar, and John Ryan Drywall. During the
period from September 12, 1986, to April 4, 1987, 21 checks were issued
to Brad Dunbar. During the period from November 14, 1986, to April 10,
1987, 17 checks were issued to Frank Dunbar. And, during the period
from December 5, 1986, to March 27, 1987, 10 checks were issued to John
Ryan Drywall. Names appearing less frequently in Respondent's records
as subcontractors include Fred Nelson and Bill Munden. /24/
The Respondent testified that he started on the Holiday Inn
construction job in March 1987, as a subcontractor of Ozark Interiors.
Respondent stated that he had 10-12 workers on the job, but that he
identified some of them only by the name of the subcontractor who sent
them. Initially, he used several workers sent by his brother, Ron
Durham, and he put Frank Dunbar to work on the job. According to
Durham, he took the workers to the areas which they were to do, pointed
out where the supplies were and other things they should notice, such as
the fact that the ceiling were 8 feet 6 inches, not the standard 8 foot
ceilings, and that the drywall Dad to be finished all the way to the
floor, not to within two inches from the floor, as is the normal
procedure. The Respondent stated that on the floors he worked on, he
told each worker where to work; on the other floors, the workers did
the work however they chose. /25/
On the Holiday Inn job, Respondent said, he inspected the work
performed by J & S Drywall's workers, and if the work was not
satisfactory, he sent the worker who had performed it back to do it over
again. One worker hired by Respondent to work on the Holiday Inn job
was John Savage, who came on the job site and asked for work. /26/
Respondent stated that after sending Savage back twice to repair faulty
workmanship, and the work still was not satisfactory, he did the work
himself, and told Savage he was no longer needed on the job.
Describing his normal procedures, Respondent said that he measures
the job and tells his subcontractors how much he will pay for the work.
Respondent said that he writes the measurements on scratch paper, but
also tells the subcontractors to measure it for themselves. Respondent
said that if he has two or more people working on the same wall, they
would be part of a crew provided by a subcontractor, and it would be up
to the subcontractor to pay his people.
According to the Respondent, for some jobs, he calls people he knows
are capable of doing the work. Respondent stated that he normally uses
Frank or Brad Dunbar, and John Ryan Drywall. Respondent stated that he
tries to keep them busy. Respondent described Brad Dunbar as one of his
most regular workers since the Fall of 1986. He testified that he would
like to keep John Ryan busier, but cannot, and that he only uses Fred
Nelson, who has more people working for him, when J & S Drywall is
behind on a job. The Respondent stated that he used Bill Munden
occasionally during late 1986 and early 1987. /27/
Respondent testified that he gave Brad Dunbar a bonus in January
1987. He said that he did not believe he gave bonuses to Frank Dunbar
or John Ryan. Respondent said that he raised the hourly pay of Brad
Dunbar and Frank Dunbar. According to the Respondent, Brad and Frank
Dunbar are paid by the hour when they do fill in work, or by the square
foot, when they do jobs which they can complete by themselves. /28/ John
Ryan is usually paid by the square foot; he seldom is paid by the hour.
According to the Respondent, one project upon which Brad and Frank
Durham, and John Ryan worked was the John Q. Hammons Trade Center in
Joplin, Missouri. Respondent said he inspected their work twice a week,
and found no quality problems.
Frank Dunbar testified that he has worked for J & S Drywall for about
a year. He stated that he had not done drywall work before that, and
that he learned the trade by working with Jerry Durham, but mostly by
working with his twin brother, Brad Dunbar. Dunbar stated that when he
worked with Jerry Durham, the latter showed him how to do drywall
finishing work, and explained how he liked his jobs to be done, saying
he wanted Dunbar to do it that way. Dunbar said that Jerry Durham tells
him when a job has to be finished, and that he starts the job enough in
advance to meet the completion date. He stated that Jerry Durham tells
him which jobs have priority, and that on occasion Durham has told him
to leave one job and go to another. Dunbar stated that he is paid by
the hour. He said that he started working for J & S Drywall at $5.00
per hour, but that Durham later decided he needed a raise, without
Dunbar asking for one, and increased his pay to $6.00 per hour. Dunbar
said he submits his hours to J & S Drywall, and that J & S Drywall does
not withhold anything from his pay for income tax, Social Security, or
unemployment compensation. Dunbar said that he averages 20 hours a week
doing drywall finishing. Dunbar said that he and his brother work as a
team, and call themselves "Mud Dobbers, Inc.," even though they are not
incorporated. He stated that he and his brother have done drywall
finishing work for people other than Jerry Durham.
Timothy Kuckin testified that he is a drywall finisher, and that he
worked for Jerry Durham on the John Q. Hammons Trade Center job in
Joplin, Missouri, for several weeks in late 1986. /29/ Huckin said that
Jerry Durham called him, and asked him if he wanted work. Huckin said
that he met Durham at the job site, and that Durham showed him what had
to be done, and where to get water and materials (tape and joint
compound, called "mud"). Huckin said that he brought his own tools, and
that Durham furnished the scaffolding and "Ames tools," a brand of tools
which eliminate much of the handwork in finishing drywall and make it
possible to do the work faster. Huckin said that it was not necessary
for Durham to show him how to do the work, as it was expected that he
already knew how to finish drywall. Huckin said that Durham had other
people working on the job, and that one of them, who Huckin thought was
Durham's foreman, told him to take his lunch break at 12 noon. In
addition, Huckin said, he took a couple of breaks at other times during
the day. Huckin said that he was paid $10.00 per hour, and that he kept
track of the time he worked. He said he was paid every Friday.
James Amos, a drywall finisher, testified that be worked for J & S
Drywall or Jerry Durham on the John Q. Hammons Trade Center job for a
day or two on a weekend in late 1986. /30/ He stated that he is a member
of Painters Local 203, and that he is a friend of Tim Huckin. Amos said
that he had a regular job at the time, and may have found out from
Huckin about the availability of extra work at the Trade Center. He
said he went to the Trade Center, where 'he talked to Jerry Durham, who
confirmed that he was behind schedule on the job and needed help.
Huckin and others were working for Durham on the job. Amos said that
Durham showed him the area he was to work on. Amos supplied his own
tools; the materials were on the job. Huckin was paid $10.00 per hour
for his work, and received his pay by check from J & S Drywall. Amos
said he was told when it was break time, and when it was time for
dinner. According to Amos, all of the crews on the job (electricians,
plumbers) pretty much took lunch and breaks at the same time. Amos said
that Durham may have told him when it was break time in the afternoon.
Amos said he was already qualified to perform the work, and did not need
training. Amos said that he assumed the job was non-union, and that no
deductions were taken from his pay. He said that he knew the Union's
constitution prohibited members from working for non-union contractors.
It is clear from the evidence that Brad and Frank Dunbar, Timothy
Huckin, and James Amos were employees of the Respondent within the
meaning of the Act. During the period of time beginning six months
before the charge was filed, each of these individuals worked for the
Respondent for an hourly wage, although the Respondent claimed he
sometimes paid Brad Dunbar on a per square foot of work basis. They had
no entrepreneurial or proprietary interest in the Respondent's business,
and bore none of the risk of profit or loss. When they worked for the
Respondent, the Respondent told them where to work, set the priorities
on the job, and inspected their work. It was the Respondent's practice
to have workmen correct their own mistakes or repair unsatisfactory (in
the Respondent's sole judgment) work. In the case of Brad and Frank
Dunbar, the Respondent played a major role in training them how to
finish drywall, and undertook to make sure that they earned sufficient
money by increasing their hourly rate of pay, and, with respect to Brad
Dunbar, giving him a bonus and converting his rate of pay to a cost plus
basis when he was not making sufficient profit, in Respondent's
judgment, on a per square foot basis. When he was paying workmen by the
hour, the Respondent expected that they would work steadily at a
satisfactory, to him, rate of progress. In the case of Timothy Huckin
and James Amos, the Respondent, or his representative, established the
time for lunch and breaks. Overall, as concerned these individuals,
Respondent exercised not only the right to control the results of the
services which they performed for him, but the manner and means by which
these individuals performed the services he assigned to them. Under the
right-of-control test, these individuals were employees of the
Respondent, not independent contractors.
It may well be that others who worked for Respondent during the
relevant period of time were also employees, under the right-of-control
test, and not independent contractors. However, there is insufficient
evidence in the record concerning the conditions under which they worked
for Respondent, and the extent of control he exercised over the manner
and means by which they performed work for him, to preclude the
possibility that they were bona fide independent subcontractors, or
employees of bona fide independent subcontractors, performing work for
the Respondent. As to these individuals, to the extent they can be
identified from the record in this case, I find that the General Counsel
has failed to meet the burden of proving by a preponderance of the
evidence that they were employees.
III. Conclusions of Law
1. Respondent, Jerry Durham Drywall, d/b/a J & S Drywall, a sole
proprietorship owned by Jerry Durham, is an employer within the meaning
of Section 2(2), (6) and (7) of the Act.
2. International Brotherhood of Painters and Allied Trades, Local
203., is a labor organization within the meaning of Section 2(5) of the
Act.
3. Since on or about September 27, 1986, in violation of Section
8(a) (1) and (5) of the Act, Respondent has failed and refused to abide
by, and continue in full force and effect, all of the terms of the
collective bargaining agreement into which the Respondent entered with
the International Brotherhood of Painters and Allied Trades, Local 203,
(the "Union"), on July 29, 1985, and which, by its terms, did not expire
until March 31, 1987, specifically:
(a) Since on or about September 27, 1986, and throughout the period
covered by the collective bargaining agreement, Brad Dunbar was an
employee of the Respondent, within the meaning of the Act, and a member
of the collective bargaining unit for which the Union was the exclusive
collective bargaining representative under the collective bargain
agreement which the Respondent and the Union signed on or about July 29,
1985.
(b) Since on or about September 27, 1986, and throughout the period
covered by the collective bargaining agreement, Frank Dunbar was an
employee of the Respondent, within the meaning of the Act, and a member
of the collective bargaining unit for which the Union was exclusive
bargaining representative under the collective bargaining agreement
which the Respondent and the Union signed on or about July 29, 1985.
(c) Since on or about mid-December 1986, until their employment by
the Respondent terminated, Timothy Huckin and James Amos were employees
of the Respondent, within the meaning of the Act, and were members of
the collective bargaining unit for which the Union was the exclusive
bargaining representative under the 'collective bargaining with the
Respondent and Union signed on or about July 29, 1985.
(d) Since on or about September 27, 1986, in violation of Section
8(a) (1) and (5) of the Act, the Respondent has failed to deduct and
Social Security taxes for its employees, as specified in the collective
bargaining agreement of on or about July 29, 1985; failed to pay its
employees according to the hourly scale (wage) specified in the
collective bargaining agreement; failed to contribute monthly the
amount specified in the collective bargaining agreement to the Union's
Apprenticeship Training Fund; and, failed to contribute monthly the
amount specified in the collective bargaining agreement to the Union's
Health and Welfare Fund.
4. The aforesaid unfair labor practices affect commerce within the
meaning of Section (2)(6) and (t) of the Act. /31/
Remedy
Having found that the Respondent, Jerry Durham Drywall, d/b/a J & S
Drywall, a sole proprietorship owned by Jerry Durham, has engaged in
certain unfair labor practices, I find that the Respondent must be
ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Respondent, having engaged in certain unfair labor practices in
violation of Section 8(a) (1) and (5) of the Act, shall be ordered to
cease and desist from engaging in these unfair labor practices.
Respondent, having violated Section 8(a) (1) and (5) of the Act,
failing to comply with the provisions of the collective bargaining
agreement into which it entered with the Union on or about July 29,
1985, shall be required to comply with all provisions of the agreement,
as they affect the Respondent's employees and the Union, and shall make
whole the employees for any loss of earnings, and the Union for any
losses of contributions to its Apprenticeship Training Fund and Health
and Welfare Fund, during the period from September 27, 1986, until March
31, 1987, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB No. 81 (May 28, 1987). /32/
On these findings of fact and conclusions of law and on the entire
record, I issue the following recommended /33/
ORDER
The Respondent, Jerry Durham Drywall, d/b/a J & S Drywall, a sole
proprietorship owned by Jerry Durham of Mansfield, Ohio, his agents,
successors, and assigns, shall
1. Cease and desist from:
(a) Refusing to recognize the International Brotherhood of Painters &
Allied Trades, Local 203, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All employees, wherever such employees may be employed, covered
by this agreement for the purpose of collective bargaining, as
provided by the National Labor Relations Act. /34/
(b) Refusing to accept, give effect to, and implement the terms and
conditions of the collective bargaining agreement negotiated between the
Respondent and the International Brotherhood of Painters & Allied
Trades, Local 203, effective July 29, 1985, through March 31, 1987.
(c) Failing or refusing to make payments to the Painters Local 203
Apprenticeship Training Fund and its Health and Welfare Fund, as
provided in the aforesaid collective bargaining agreement, covering the
period from September 27, 1986, through March 31, 1987.
(d) Failing or refusing to pay its employees the hourly wage scale,
as established for their classifications in the collective bargaining,
covering the period from September 27, 1986, through March 31, 1987.
(e) Failing or refusing to pay Social Security taxes for its
employees during the period from September 27, 1986, through March 31,
1987.
(f) In any other manner unilaterally altering, or failing to comply
with, any of the terms and conditions of employment of its employees in
the above bargaining unit which are specified in the aforesaid
collective bargaining agreement.
(g) 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) Recognize the International Brotherhood of Painters & Allied
Trades, Local 203, as the exclusive representative of all the
Respondent's employees in the appropriate unit, as described above, with
respect to rates of pay, wages, and other terms and conditions of
employment during the period from July 29, 1985, through March 31, 1987.
(b) Give retroactive effect, beginning September 27, 1986, to all
terms and conditions of the collective bargaining agreement covering the
period from July 29, 1985, through March 31, 1987.
(c) Make whole, in the manner described in the Remedy Section, the
Respondent's employees in the aforesaid appropriate unit for any loss of
pay and benefits, including payment of Social Security taxes, which they
may have suffered by reason of the Respondent's refusal to abide by and
give effect to the aforesaid collective bargaining agreement during the
period from September 27, 1986, through March 31, 1987.
(d) Pay to the appropriate trust funds the contributions required by
the aforesaid collective bargaining agreement during the period from
September 27, 1986, through March 31, 1987.
(e) Preserve and, on request, make available to the Board or its
agents for examination and copying, all payroll records, records of
payments to subcontractors, Social Security payment records, timecards,
personnel records and reports, and all other records necessary to
analyze the amount of backpay to the Respondent's employees and
contributions to the Union's appropriate trust funds due under the terms
of this Order.
(f) Post at Jerry Durham's residence and place of business in
Mansfield, Missouri, or any other place at which notices to Respondent's
employees or subcontractors are posted, copies of the attached notice
marked "Appendix." /35/ Copies of the notice, on forms provided by the
Regional Director for Region 17, 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 or subcontractors
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., March 1, 1989.
William A. Pope, II
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that Jerry Durham
Drywall, d/b/a J & S Drywall, violated the National Labor Relations Act
and has ordered us 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.
WE WILL NOT refuse to recognize the International Brotherhood of
Painters & Allied Trades, Local 203, as the exclusive bargaining
representative of all of our employees employed as pressure rollers,
tapers, foremen, highmen, spraymen, sandblasters, and paper hangers,
during the period from July 29, 1985, through March 31, 1987.
WE WILL make payments to the Union's Apprenticeship Training Fund,
and its Health and Welfare Fund, for the period from September 17, 1986,
through March 31, 1987, as required by the collective bargaining
agreement between the Union and me, effective July 29, 1985, through
March 31, 1987.
We WILL make whole our employees, Brad Dunbar, Frank Dunbar, Timothy
Huckin, and James Amos, for any loss of pay benefits during the period
from September 17, 1986, through March 31, 1987, including, but not
limited to, loss of earnings and payment of Social Security taxes,
resulting from our failure to apply the terms of the collective
bargaining agreement on or after September 17 1986, through March 31,
1987.
Jerry Durham Drywall
d/b/a J & S Drywall
(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 with any other
material. Any questions concerning this notice or compliance with its
provisions may be directed to the Board's Office, 5799 Broadmoor - Suite
500, Mission, KS 66202-2408, telephone number 913-236-2777.
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.
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.
WE WILL NOT fail or refuse to recognize the INTERNATIONAL BROTHERHOOD
OF PAINTERS & ALLIED TRADES, LOCAL 203, as the exclusive
collective-bargaining representative of our employees in the following
appropriate unit:
All employees of Respondent performing work within the, trade
of the Painters & Allied Trades, including all sandblasters,
tapers, spraymen, highmen, pressure rollers, paperhangers on
commercial job projects located within (the geographic
jurisdiction of the collective-bargaining agreement), excluding
all office clerical employees, guards and supervisors as defined
in the Act.
WE WILL NOT fail or refuse to accept, give effect to, and implement
the terms and conditions of our collective-bargaining agreement with the
Union, for the period September 27, 1986 through March 31, 1987.
WE WILL NOT fail or refuse to make payments to the PAINTERS LOCAL 203
APPRENTICESHIP TRAINING FUND AND ITS' HEALTH AND WELFARE FIND, as
provided in the collective-bargaining agreement, for the period
September 27, 1986 through March 31, 1987.
WE WILL NOT fail or refuse to make payments to the PAINTERS LOCAL 203
PENSION FUND, as provided in the collective-bargaining agreement, for
the period September 27, 1986 through March 31, 1987.
WE WILL NOT fail or refuse to withhold and remit to the Union
authorized dues from unit employees' paychecks, as provided in the
collective-bargaining agreement, for the period September 27, 1986
through March 31, 1987.
WE WILL NOT fail or refuse to pay our unit employees the hourly wage
scale, as established for their classifications in the bargaining
agreement, for the period September 27, 1986 through March 31, 1987.
WE WILL NOT fail or refuse to pay social security taxes for our
employees, for the period September 27, 1986 through March 31, 1987.
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 recognize the INTERNATIONAL BROTHERHOOD OF PAINTERS & ALLIED
TRADES, LOCAL 203, as the exclusive representative of our employees in
the appropriate unit, with respect to rates of pay, wages, and other
terms and conditions of employment, for the period September 27, 1986
through March 31, 1987.
WE WILL give retroactive effect to all terms and conditions of the
collective-bargaining agreement, for the period September 27, 1986
through March 31, 1987.
WE WILL make whole all unit employees for any loss of pay and
benefits, including payment of social security taxes, which they may
have suffered by reason of our refusal to abide by and give effect to
the collective-bargaining agreement, for the period September 27, 1986
through March 31, 1987, with interest.
WE WILL make whole the appropriate union trust funds for our failure
to make the contributions required by the collective-bargaining
agreement, for the period September 27, 1986 through March 31, 1987.
WE WILL pay to the Union all authorized dues which should have been
deducted and remitted to the Union under the bargaining agreement, for
the period September 27, 1986 through March 31, 1987, with interest.
JERRY DURHAM DRYWALL,
d/b/a J & S DRYWALL
(Employer)
Dated ______________ By_______________________________
(Representative) (Title)
5799 Broadmoor, Suite 500, Kansas City, Kansas 66202-2408, Telephone
913--236--2766.
'Footnotes to the Decision'
/1/ On October 20, 1987, the Board denied Respondent's Motion for
Summary Judgment, dated October 13, 1987.
/2/ It appears from testimony during the hearing that J & S Drywall
was somewhat interchangeably referred to as Jerry Durham Drywall.
/3/ Section 2(9) of the Act defines the term "labor dispute" as "any
controversy concerning terms, tenure or conditions of employment, or
concerning the association or representation of persons in negotiating,
fixing, maintaining, changing, or seeking to arrange terms or conditions
of employment, regardless of whether the disputants stand in the
proximate relation of employer and employee."
/4/ "For the purposes of applying this standard, direct outflow
refers to goods shipped or services furnished by the employer outside
the State. Indirect outflow refers to sales of goods or services to
users meeting any of the Board's jurisdictional standards except the
indirect outflow or indirect inflow standard. (Footnote omitted.)
Direct inflow refers to goods or services furnished directly to the
employer from outside the State in which the employer is located.
Indirect inflow refers to the purchase of goods or services which
originated outside the employer's State but which he' purchased from a
seller within the State who received such goods or services from outside
the State. In applying this standard, the Board will adhere to its past
practice of adding direct and indirect outflow, or direct and indirect
inflow. It will not add outflow and inflow." Siemons Mailing Service,
supra, 122 NLRB at 85.
/5/ In 1986, Ozark Interiors, a nonretail construction enterprise
doing business in Missouri, had an annual direct inflow of goods across
State lines of at least $50,000, and, therefore, its operations satisfy
the Board's jurisdictional standards. In 1986, Ozark Interiors
purchased $97,238 worth of construction supplies, tools, and equipment
from suppliers outside the State of Missouri. Ozark Interiors did not
perform any work outside the State of Missouri in 1986; however, in
1986 it did approximately $2,924,347 in business within the State of
Missouri for public utilities, transit systems, newspapers, health care
institutions, broadcast stations, commercial buildings, education
institutions, and retail concerns. Its volume of business in 1987,
through the date of hearing, December 7, 1987, was $2,493,101, and
included construction and remodeling jobs in Missouri, Arkansas, and
Kansas.
/6/ In an affidavit taken by a Board agent on April 2, 1987, Alderson
stated that later that day or the next day, Durham, accompanied by Brad
Dunbar, came to the Union's office, and while there signed the contract.
Alderson said in his affidavit that he was not present when Durham
signed the contract. Alderson was not examined during the hearing on
the discrepancy between his statements in his affidavit concerning the
signing of the contract and his testimony during the hearing concerning
the same issue.
/7/ According to Alderson, the Union's constitution does not permit
new members of the Union to work outside of their local's jurisdiction
for six months after joining. But, Alderson said, he told Durham that
if he showed his dues receipt to the Kansas City business agent, in all
probability the business agent would not ask Durham how long he had
belonged to the Union.
/8/ Local 203's membership ledger shows that Brad Dunbar made
payments for dues, and/or initiation or other fees on July 29, 1985;
August 8, 1985; and, September 24, 1985. The ledger sheet for Jerry
Durham shows that he made payments to Local 203 for dues, and/or
initiation or other fees on February 14, 1983; June 20, 1983; during
October 1983 (day' of the month is obliterated on the copy of the ledger
in evidence); on April 4, 1984; and, on July 29, 1985. Jerry Durham
testified that he first joined Local 203 in 1983.
/9/ Jerry Durham and Brad Dunbar were dropped as members of Local 203
on March 31, 1986, because they were six months behind in paying their
dues.
/10/ James W. Alderson testified that Local 203 moved its office from
1918 East Meadowmere to 2200 East Sunshine in November or December 1985.
/11/ Jerry Durham described Brad Dunbar as one of his most regular
workers.
/12/ Linda Alderson, the Union's secretary, testified that Jerry
Durham did not make any payments to the Union's benefit funds. She said
that she just supposed that he did not have any jobs. Mrs. Alderson
said that employers usually request fringe benefit report forms, and
that she did not necessarily send them to employers automatically.
/13/ Alderson testified that he had two conversations with Ted Smith,
of DeWitt and Associates, about Jerry Durham, the first of which was on
August 14, 1986, the day after the picketing. In his earlier statement
to a Board agent, Alderson said that after picketing the (St. John's)
job, he received a telephone call from Ted Smith, President of DeWitt
and Associates, who said that he would get Durham off the job. After
seeing Durham on the job again about a week later, Alderson said, he
called Ted Smith, who said he said he would get Durham off the job and'
did.
/14/ Durham had previously belonged to Local 203 from 1983 until
December 1984.
/15/ The Respondent billed Ozark Interiors in the amount of $521.14
on July 14, 1986, for work on the Lithotripter job at St. John's. The
work had taken about a week, and was performed during the second week of
July.
/16/ As previously noted, according to the undisputed testimony of
James Alderson, in November or December 1985, the Union moved its office
from 1918 East Meadowmere Street, Springfield, Missouri, to 2200 East
Sunshine Street. Thus, in July 1986, the time when Jerry Durham stated
he went to the Union's office on Meadowmere Street to obtain information
about becoming a union contractor, the Union's office was actually
located on East Sunshine Street.
/17/ The copy of the 'notice offered in evidence was obtained by the
Respondent's wife from the Don Tripp Agency, Inc., Mansfield, MO. The
Respondent stated that he did not remember receiving a copy of the
notice in 1986. The notice was admitted in evidence by stipulation of
the parties as Respondent's Exhibit 16.
/18/ Even if Respondent's signing of the agreement is construed as
nothing more than an offer to enter into an agreement, it is well
settled that an offer remains on the table unless withdrawn by the
offer, or circumstances arise which would lead the parties to believe
the offer had been withdrawn. Mac Chef, Inc., 288 NLRB No. 3 (1988). I
find no evidence that the Respondent withdrew his offer, or that his
conduct put the Union on notice that he had withdrawn the offer.
Neither is there any evidence that the Respondent specified any
particular manner or time of acceptance by the Union, such that it might
be argued that his offer lapsed because the Union did not comply with
the terms of the offer. To the contrary, the Union informed the
Respondent that he could become a union contractor simply by signing the
collective bargaining agreement form which the Union provided. The
offer to enter into a collective bargaining agreement actually in this
case originated with the Union, which by presenting the Respondent with
the form agreement indicated its offer to enter into a binding
collective bargaining relationship. Thus, arguably, there was a binding
agreement when the Respondent returned the form agreement with his
signature on it to the Union. In any event, I find that, based on the
testimony of James Alderson, whom I find, based on his demeanor on the
stand, to be a credible witness, a copy of the agreement bearing
Alderson's signature was given to the Respondent.
/19/ The six months Section 10(b) period prior to the filing of the
charge on March 25, 1987.
/20/ In applying the "right of control test," the Board said:
If the recipient of the services in question has a right to
control not only the end to be achieved but also the means to be
used in reaching such result, an employer relationship exists as a
matter of law; otherwise there exists an independent contractor
relationship. The application of this principle is not a
mechanical one in any case, but requires a careful balancing of
all factors bearing on the relationship. 146 NLRB at 145-146.
/21/ The Board also said in A. 5. Abel Publishing Co., 270 NLRB at
1202, that "(i)ts determination of which type of control is retained by
the alleged employer turns on the particular facts of each case."
/22/ Citing Mission Foods Corp., 280 NLRB No. 26 (June 6, 1986).
/23/ Also spelled "Munden" in other records prepared or maintained by
Respondent.
/24/ Tim Huckin received checks for labor on December 15, 19, and 24,
1986. James Amos was paid for labor on December 20, and 21, 1986.
/26/ The Respondent stated that he told Frank Dunbar to install the
corner bead first, in the manner which he had told Frank and Brad Dunbar
that he preferred. The Respondent said that Frank Dunbar had been
trained in drywall finishing by his brother, Brad Dunbar.
/26/ According to Respondent, 80 of his workers are hired that way.
According to Respondent, when people ask for work, he asks them if they
have their own tools, tells them what the work will pay, and if that is
satisfactory, shows them where to work.
/27/ Respondent said he did not recognizes the names of Tim Huckin or
James Amos.
/28/ Elaborating on the basis upon which he pays Brad Dunbar, whom
Respondent described as an average but trustworthy worker and personal
friend, Respondent said that Brad Dunbar works on a cost plus basis when
it is doubtful that he can make a decent wage on a per square foot
basis. Respondent said that if Brad Dunbar tried to do a job on a per
square foot basis, but did not make any money, he changed Dunbar's pay
to a cost plus basis. According to Respondent, he will not let Dunbar
work for nothing, and does whatever it takes for him to make money. The
Respondent said that Brad Dunbar is a college student, and works for J &
S Drywall 20 to 30 hours a week.
/29/ Respondent's records show that Timothy Huckin received checks
for "subcontract labor" dated December 12, 1986 ($240.00), December 19,
1986 ($510.00), and December 24, 1986 ($385.00).
/30/ Respondent's records show that checks for "subcontract labor"
were issued to James Amos on December 20, 1986 ($80.00), and December
21, 1986 ($40.00).
/31/ I reject General Counsel's request for a visitorial clause,
whether it be broad or narrow in scope. Such clauses are not routinely
included in the Board's orders. In this case, there are no grounds for
issuance of either type of visitorial clause. The record does not show
there to be any basis for a broad visitorial clause, such as a
likelihood that the Respondent would fail to cooperate or otherwise seek
to evade compliance with any order the Board should issue in this case.
Nor is there any basis for including a narrow visitorial clause. There
is no question in this case concerning how and by whom compliance with
any order of the Board is to be effected. (See Cherokee Marine, Inc.,
287 NLRB No. 53 (1988); 299 Lincoln Street, Inc., 292 NLRB No. 32
(1988)).
/32/ In accordance with the Board's decision in New Horizons for the
Retarded, supra, interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendments to 26 U.S.C. Section 622. Interest
on amounts accrued prior to January 1, 1987, the effective date of the
amendments to 26 U.S.C. 622, shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
/33/ 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.
/34/ The classifications of employees covered by the agreement
include pressure rollers, tapers, foremen, highmen, spraymen,
sandblasters, and paperhangers.
/35/ If this Order is enforced by a Judgment of the 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."
303 NLRB No. 8
D--2008
Sioux Falls, SD
KOLMAN/ATHLY DIVISION OF ATHEY PRODUCTS CORPORATION and ALLIED
INDUSTRIAL WORKERS OF AMERICA, AFL--CIO
Case 18--CA--10490
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER
On April 5, 1989, Administrative Law Judge George Christensen issued
the attached decision. The Respondent filed exceptions and a supporting
brief, and the General Counsel filed exceptions and a supporting 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, /1/ and conclusions /2/ and to adopt the recommended Order as
modified. /3/
Amended Remedy
Include the following in the judge's remedy
"Any backpay due will be determined in accordance with the method
described in Ogle Protection Service, 183 NLRB 682 (1970). We shall
leave to the compliance stage the question whether the Respondent must
pay any additional sums into employee benefit funds in order to satisfy
our 'make-whole' remedy. Merrweather Optical Co., 240 NLRB 1213 (1979)."
ORDER
The National Labor Relations Board adopts the recommended Order of
the administrative law judge as modified below and orders that the
Respondent, Kolman/Athey Division of Athey Products Corporation, Sioux
Falls, South Dakota, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Insert the following as paragraph 1(d).
"(d) ln 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. Substitute the following for paragraph 2(b).
"(b) Make whole the successful bidders for those two jobs for any
losses in wages and benefits they suffered by virtue of the fact they
were not selected and assigned to operate the machines in the manner set
out in the remedy section of the judge's decision, as amended."
3. Insert the following as paragraph 2(d) and reletter the following
paragraphs.
"(d) 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."
4. Substitute the attached notice for that of the administrative law
judge.
Dated, Washington, D.C. May 28, 1991
Mary Miller Cracraft, Member
Dennis M. Devaney, Member
NATIONAL LABOR RELATIONS BOARD
CHAIRMAN STEPHENS, concurring in the result.
I agree with the judge that the Respondent violated Section 8(a) (5)
by insisting to impasse on an election-of-remedy proposal. I find it
unnecessary, however, to determine whether the Respondent's proposal was
an illegal, as distinguished from merely a permissive, subject of
bargaining. Although the Board has found certain attempted contractual
restrictions on access to Board procedures to be per se illegal, other
voluntarily agreed-to contractual provisions conditioning access to the
Board have been sustained. Compare Conoco, Inc., 287 NLRB 548, 559
(1987), with St. Joseph Hospital Corp., 260 NLRB 691 (1982).
In the latter case, which is most relevant to the instant case but
not discussed by the judge, the Board found no violation of Section 8(a)
(4) for an employer and a union to agree to include within a
grievance-arbitration clause an election-of-remedy proviso barring
proceedings by an employee under that procedure in the event that the
employee pursued "a legal or statutory remedy." In upholding the
provision as not per se illegal, the Board stressed that it "seeks to
prevent duplicative adjudication by requiring an election of remedies,
especially where the limitation is imposed on a contractual right,
rather than a legal or statutory right." However, the Board did not face
the separate question of whether the employer could insist to impasse on
the disputed proviso, and therefore the Board avoided having to decide
on which side of the mandatory-permissive fence it fell. /1/ Because the
Respondent here did insist to impasse on an election-of-remedy type
provision, l now consider that issue.
The provision in question stated:
The Company and the Union mutually agree that a condition
precedent to the invocation, processing or arbitration of a
grievance is that the Union and/or any employee or employees
involved must agree that this grievance and arbitration procedure
is the exclusive avenue by which the grievance must be resolved,
and should the Union and/or any employee or employees file a
charge with any federal or state agency, the Union and/or the
employee or employees shall be prohibited from processing or
arbitrating any grievance hereunder which is based on the same or
similar facts. This prohibition will void any arbitration award in
favor of the Union and/or any employee or employees should a
grievance be arbitrated and/or an arbitration award be made prior
to or after a timely charge is filed with the federal or state
agency.
In determining whether the Respondent's election-of-remedy provision
was mandatory or permissive, I draw some guidance from the Board's
established framework for assessing whether components of a
grievance-arbitration procedure lie on one side or the other of this
dichotomy. In Communications Workers (C & P Telephone), 280 NLRB 78,
80--81 (1986), the Board found only those components of the
grievance-arbitration procedure to be mandatory which are "essential
components of the grievance arbitration process and govern the specific
way it is to function." Precedent in this area, however, provides little
definitive guidance in identifying what may be considered an "essential
component." I note that in C & P Telephone, the Board made reference to
Electrical Workers UE v. NLRB, 409 F.2d 150, 156 (D.C. Cir. 1969),
which in relevant part stated:
Because the specific provisions . . . are essentially part of
the arbitration and no-strike proposals, they are, as components
of such proposals, mandatory subjects of bargaining.
Taken too literally, this statement could render all provisions in
such proposals to be essential components. Further guidance, however, is
offered in C & P Telephone to the extent that following its reference to
the "essential components of the grievance arbitration process," it
thereafter discussed a series of Board decisions in which the focus was
on whether the proposal would have an "adverse effect . . . on the
collective-bargaining process." Id. at 81. In those cases, /2/ each
involving insistence on the recording of proceedings between the union
and the employer, the Board reached different results based on whether
the proceedings involved collective bargaining (i.e., negotiations for a
contract or grievance discussions, with the proposal being found
permissive) or adjudication (i.e., arbitration, with the proposal being
found mandatory).
As is clear from the Respondent's proposal quoted above, the
election-of-remedy provision would place equivalent and intertwined
restrictions both on grievance discussions and on arbitration. Due to
the proposal's severe adverse impact on the Union's ability to engage in
grievance discussions, as explained below, I find that the proposal was
to that extent permissive. Accordingly, I need not determine whether
its additional impact on the contractual-arbitration procedure provides
any further basis for determining that the proposal is on a permissive
subject and the Respondent's insistence upon it is therefore unlawful.
The statutory definition of collective bargaining encompasses more
than merely an obligation of the parties to negotiate a
collective-bargaining agreement. The Section 8(d) definition of
collective bargaining also includes a more generalized requirement for
the parties "to meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions of employment".
. ./3/ and to similarly meet and confer with respect to any question
arising under the negotiated bargaining agreement. /4/ It was this
expansive definition of collective bargaining which underlay the Board's
decision in Latrobe Steel Co., 244 NLRB 528 (1979), enfd. as modified
630 F.2d 171 (3d Cir. 1980), cert. denied 454 U.S. 821 (1981), which I
find articulates the basis for finding a violation in the case now
before us. In that case, the employer, in negotiating a new bargaining
agreement, attempted to impose a requirement that all grievances must be
filed under the signature of individual employees, and that thereby the
union would no longer be able to initiate grievances. Notwithstanding
the employer's insistence that the union would still be able to
represent employees in their grievances, the Board declared, at 533:
The right of the Union, however, to represent the employees in
the unit, both individually and collectively, at all stages of the
grievance procedure, including the right to file grievances and
process them, and to administer the collective-bargaining
agreement, is
a
statutory right which Respondent may not insist to the point of
impasse that the Union waive. The proposal that only grievances
signed by individual employees could be considered under the
contract was not a matter included within the term "wages, hours
and other conditions of employment" that Respondent was privileged
to make a condition precedent to agreement, as Respondent did
here.
Although the Respondent's proposal is not phrased as a bar to the
Union's ability to initiate grievances, its necessary effect is very
much the same. Any attempt by the Union to initiate and process a
grievance pursuant to the Respondent's proposal would be contingent on
the forbearance of each employee the bargaining unit from filing a
charge with the Board or any other Federal or state agency based on the
same or similar facts. Moreover, the prospective as well as retroactive
effect of the Respondent's election-of-remedy proposal makes it equally
impossible for the Union to be assured that pending grievance
discussions may not be freely blocked by a single employee or that
voluntarily adjusted grievances may not be undone due to the subsequent
filing of a charge. To the extent that the Act is designed to replace
industrial strife with collective bargaining, the Respondent's proposal
undermines this Congressional policy in that it would render uncertain
any attempt to resolve grievance disputes through collective bargaining.
In terms of this specific adverse effect on the parties' ability to
mutually adjust their disputes through collective bargaining, I note
that the election-of-remedies provision does not have as a prerequisite
that the alternative Federal or state agency actually entertain the
substance of the parties' dispute or that such agency resolve the issues
which would otherwise be addressed in the grievance process. For
example, a charge filed with the Board which is dismissed as untimely
under Section 10(b) would just as effectively defeat the processing of a
grievance as would a timely filed charge. Moreover, the fact that the
two proceedings need only be based on "the same or similar facts" would
also mean that contractual disputes which do not rise to the level of an
unfair labor practice would not be resolved by the Board, /5/ but that
the filing of a charge raising such an unmeritorious contention would
preclude a grievance on the contractual issue.
Finally, l note that the breadth of the attempted waiver regarding
the Union's fundamental ability to engage in grievance processing,
provides a ready basis for distinguishing this case from recent
decisions by the Board which refrained from finding unlawful an
employer's insistence to impasse on a proposed waiver of a union's
statutory rights which was significantly more restricted in scope, and
thus did not so severely undermine the collective-bargaining capacity of
the union. /6/
Dated, Washington, D.C. May 28, 1991
James M. Stephens, Chairman
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 insist to impasse, during bargaining with Allied
Industrial Workers of America, AFL--CIO, over terms for a contract
covering your wages, hours, and working conditions, that your union
accept an impermissibly broad contract provision limiting its and your
exercise of its and your right to file charges with state and/or Federal
agencies alleging we have violated public laws based on facts forming a
basis for a claim we have also violated a contract between your union
and us.
WE WILL NOT insist to impasse during such bargaining on a contract
provision authorizing a union representing our employees at Raleigh,
North Carolina, rather than your union to negotiate and agree to changes
in your health insurance plan, including changes in the insurance
carrier, changes in benefits, and changes in your contributions towards
the premium costs of your coverage or other changes.
WE WILL NOT select and assign employees within the unit represented
by your union to operate machines acquired and placed in operation
subsequent to the expiration of our 1985--1988 contract with your union
and prior either to agreement with your union or a bargaining impasse
over a proposal by us permitting our unilateral selection and assignment
of such jobs.
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 post the jobs of operating the Whitney machine and the Torch
Mark machine on appropriate employee bulletin boards for bid, process
the bids received in accordance with the policies and procedures set out
in our 1985--1988 contract with your union and select and assign the
successful bidders under the application of those policies and
procedures to operate the two jobs.
WE WILL make whole, with interest, the successful bidders for those
two jobs for any wage losses and benefits they suffered by virtue of our
failure to select them for the initial operation of the two jobs.
WE WILL bargain with Allied Industrial Workers of America, AFL--CIO
at its request over the terms of a contract covering the wages, hours,
and working conditions of:
All production and maintenance employees employed by
Kolman/Athey Division of Athey Products Corporation at its Sioux
Falls, South Dakota facilities, excluding inspectors, lab
technicians, engineers, office clerical employees, guards and
supervisors as defined in the Act.
KOLMAN/ATHEY DIVISION OF
ATHEY PRODUCTS CORPORATION
(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 South Fourth
Street, Room 316, Minneapolis, Minnesota 55401-2291, Telephone
612--581--1793.
'Footnotes to the Decision and Order'
/1/ No exceptions were filed to the judge's finding that the parties
were deadlocked or bargained to impasse on April 25, 1988.
Additionally, no exceptions were filed to the judge's finding that the
Respondent did not violate the Act when it changed health insurance
carriers without notice to or bargaining with the Union.
Regarding the Board's jurisdictional requirements, we find that
during the 12-month period ending December 31, 1987, the Respondent, in
the course and conduct of its business operations, sold and shipped from
its Sioux Falls, South Dakota facility products, goods, and materials
valued in excess of $50,000 to points outside the State of South Dakota.
During the same period, the Respondent, in the course and conduct of
its.business operations, purchased and received at its Sioux Falls,
South Dakota facility products, goods, and materials valued in excess of
$50,000 directly from points outside the State of South Dakota.
We correct the following case citations: Lloyd A. Fry Roofing Co.,
123 NLRB 647 (1959); NLRB v. Southern Materials Co., 447 F.2d 15 (4th
Cir. 1971); Athey Products Corp., 282 NLRB 203 (1986); Carpenter
Sprinkler Corp. v. NLRB, 605 F.2d 60 (2d Cir. 1979); Saunders House v.
NLRB, 719 F.2d 683 (3d Cir. 1983); NLRB v. Pacific Grinding Wheel Co.,
572 F.2d 1343 (9th Cir. 1978); Southwest Security Equipment Co., 262
NLRB 665 (1982).
/2/ In agreeing with the judge that the Respondent violated Sec. 8(a)
(5) by insisting to impasse on its waiver proposal, we find it
unnecessary to rely on Alexander v. Gardner-Denver Co., 415 U.S. 36
(1974). Further, we find it unnecessary to decide whether the
Respondent's waiver proposal was an illegal, as distinguished from
merely a permissive, subject of bargaining. See Reichhold Chemicals,
288 NLRB 69, 71--72 (1988).
/3/ The General Counsel has excepted to the judge's failure to
include in his remedy a reference to the appropriate formula for the
computation of backpay, and a provision for payment of potential
retroactive contributions and additional sums into fringe benefit funds.
We find merit in the General Counsel's exceptions, and shall amend the
remedy section of the judge's decision accordingly. Additionally, we
have modified the recommended Order to include the Board's traditional
narrow injunctive language and a records preservation provision.
'Footnotes to the Concurrence'
/1/ A contract proposal may not be per se illegal, yet if it is
deemed permissive rather than mandatory, it may not be insisted on to
impasse. NLRB v. Borg-Warner Corp., 356 U.S. 342, 349 (1958).
/2/ Chemical Workers Local 29 (Morton-Norwich Products), 228 NLRB
1101 (1977); Bartlett-Collins Co., 237 NLRB 770 (1978), enfd. 639 F.2d
652 (10th Cir. 1981) cert. denied 452 U.S. 961 (1981); Bakeryworkers
Local 455 (Nabisco Brands), 272 NLRB 1362 (1984).
/3/ See generally Storall Mfg. Co., 275 NLRB 220 (1985), enfd. 786
F.2d 1169 (8th Cir. 1986), in which the Board found that an employer
unlawfully refused to discuss grievances with a union following its
certification as bargaining representative, prior to and separate from
the negotiation of a bargaining agreement.
/4/ See Pennsylvania Telephone Guild (Bell Telephone), 277 NLRB 501
(1985), enfd. 799 F.2d 84 (3d Cir. 1986).
/5/ See, e.g., Thermo Electron Corp., 287 NLRB 820 (1987).
/6/ See Toledo Blade Co., 295 NLRB No. 68 (June 15, 1989), enf.
denied, 907 F.2d 1220 (D.C. Cir. 1990); Colorado-Ute Electric Assn.,
295 NLRB No. 67 (June 15, 1989). Cf. Tampa Sheet Metal Co., 288 NLRB 322
(1988).
Everett Rotenberry, for the General Counsel.
John E. Burke of Sioux Falls, SD, for Athey.
DECISION
Statement of the Case
GEORGE CHRISTENSEN, Administrative Law Judge. On July 10, 1888 I
conducted a hearing at Sioux Frills, South Dakota, to try issues raised
by a complaint issued on June 23, 1988 based on original and amended
charges filed by Allied Industrial Workers of America, AFL-CIO (AIW) on
May 21 and June 15, 1988.
The complaint alleged Kolman/Athey Division of Athey Products
Corporation (AP) violated Section 8(a) (1) and (5) of the National Labor
Relations Act (Act) by insisting on certain contract provisions,
assigning AIW-represented employees to newly created jobs without
following existing bid procedures on prior notice and bargaining, making
changes in the health plan covering AIW-represented employees without
prior AIW consent and failing to bargain in good faith over AIW-proposed
changes in the health and pension plans covering the AIW-represented
employees, all prior to impasse in bargaining between AP and AIW over
terms for a contract supplanting an expiring and expired contract
between AT and AIW covering the wages, hours and working conditions of
an appropriate unit of AP's Sioux Falls employees.
AP denied committing any unfair labor practices.
The issues are whether AP committed the acts alleged and if so,
whether AP thereby violated the Act.
The General Counsel (GC) and AP appeared by counsel and were afforded
full opportunity to adduce evidence, examine and cross-examine
witnesses, argue and file briefs. Both filed briefs.
Based upon my review of the entire record, observation of the
witnesses, perusal of the briefs and research, I enter the following:
Findings of Fact /1/
I. Jurisdiction and Labor Organization
The complaint alleged, the answer admitted and I find at all relevant
times AP was an employer engaged in commerce in a business affecting
commerce and AIW was a labor organization within the meaning of Section
2 of the Act.
II. The Alleged Unfair Labor Practices
A. Background
Since 1965 AIW has been, and has been recognized by AP as, the
exclusive collective bargaining agent of a unit of AP's employees
appropriate for collective bargaining purposes within the meaning of
Section 9 of the Act consisting of:
All production and maintenance employees at AP's Sioux Falls,
South Dakota facility; excluding inspectors, lab technicians,
engineers, office clerical employees, guards and supervisors as
defined in the Act.
Since 1965 AP and AIW have executed a succession of contracts
covering the wages, hours and working conditions of employees within the
above unit, including a contract executed on April 19, 1985 for a term
extending from February 1, 1985 through January 31, 1988.
The 1985-1988 contract was terminated in accordance with its terms;
AP and AIW met frequently between December 3, 1987 and April 25, 1988
but were unable to reach agreement on terms for a successor to the
1985-1988 contract; and on April 5, 1988 AP presented AIW with a
document labelled its final offer. No serious bargaining occurred
thereafter prior to AIW's filing of the charges in this case.
B. The AP waiver Demand
The grievance procedure set out in the 1985-1988 contract did not
contain a waiver provision.
In its initial written contract proposal of December 3, 1987, a
subsequent modification of January 28, 1988 and its final offer of April
25, 1988, AP proposed the following provision be included in the
grievance section of a proposed successor to the 1985-1988 contract:
The Company and the Union mutually agree that a condition
precedent to the invocation, processing or arbitration of a
grievance is that the Union and/or any employee or employees
involved must agree that this grievance and arbitration procedure
is the exclusive avenue by which the grievance must be resolved,
and should the Union and/or any employee or employees file a
charge with any federal or state agency, the Union and/or the
employee or employees shall be prohibited from processing or
arbitrating any grievance hereunder which is based on the same or
similar facts. This prohibition will void any arbitration award in
favor of the Union and/or any employee or employees should a
grievance be arbitrated and/or an arbitration award be made prior
to or after a timely charge is filed with the federal or state
agency.
Employees and their authorized agents have a right under the Act to
invoke or file and to process or adjust grievances with an employer;
such agents have a right under the Act to be present at any attempted
adjustment by an employer of the grievance of an employee represented by
the agent; both employees and their agents have a right under the Act
to file charges alleging an employer has violated the Act based on facts
which form the basis for invoking or filing and seeking to process or
adjust a grievance alleging that employer has breached a contract; and
both agents and employees have rights under various public statutes or
laws to file charges alleging an employer has violated the pertinent
statute or law based on facts which form the basis for invoking or
filing and seeking to process or adjust a grievance alleging that
employer has breached a contract.
AP justifies its proposal on the ground its acceptance by AIW would
avoid litigation in multiple forums based on the same or similar facts.
Employer-union agreements limiting or barring the exercise of some
statutory rights have been honored, such as the statutory right to
strike during the life of a contract (NLRB v. Rockaway News Supply Co.,
Inc., 345 U.S. 71 (1953); Textile Workers Union v. Lincoln Mills, 353
U.S. 448 (1957); d A. Fry Roofing Co., Inc., 123 NLRB 645 (1959)) and
the statutory right to bargain during the life of a contract (NLRB v.
Auto Crane Co., 536 F.2d 310 (10th Cir. 1976); NLRB v. Southern
Materials Co., 446 F.2d 15 (4th Cir. 1971)).
However, employer attempts to limit or bar the exercise of other
statutory rights, particularly those of individual employees as
distinguished from those of their agents, have been held unlawful, such
as employer insistence to impasse on union agreement to condition
employee reinstatement on his waiver of his statutory right to file an
unfair labor practice charge over his discipline (Isla Verde Hotel
Corp., 259 NLRB 496 (1981), enfd. 702 F.2d 268 (1st Cir. 1981;
Reichhold Chemical, Inc., 288 NLRB No. 8 (1988)); employer insistence
to impasse an union agreement to waive both the union and employee
statutory right to file unfair labor practice charges in the event a
strike or lockout occurred during the life of a contract (Newberry
Equipment Co., Inc., 157 NLRB 1527 (1966)); employer insistence to
impasse on union agreement to condition employee receipt of severance
pay on waiver of the employee statutory right to charge the employer
with violation of health and/or safety statutes (Borden. Inc., 279 NLRB
396 (1986)); employer insistence to impasse on union agreement to waive
both union and employee statutory rights to file unfair labor practice
charges and the employees' statutory right to invoke or file and process
or adjust grievances over discipline imposed upon them for filing
charges with a federal or state agency alleging violation of federal or
state safety and/or health statutes or laws (Matlock Truck & Trailer
Corp. v. NLRB, 94 LRRM 2456 (6th Cir. 1976)) ; employer insistence to
impasse on union agreement to waive employee statutory rights to
reinstatement and union and employee rights to invoke or file and
process or adjust grievances over employer refusals of employee
reinstatement over discharges or suspensions during a strike (American
Cyanamid Co., 235 NLRB 1316 (1978), enfd. 592 F.2d 356 (7th Cir. 1979)).
The rationale for the last-cited cases was clearly expressed by the
United States Supreme Court in stating:
We think it clear there can be no prospective waiver of an
employee's rights . . . a union may waive certain statutory rights
relative to collective activity, such as the right to strike . . .
(but) Title VII concerns . . . an individual's right to equal
employment opportunities. In these circumstances, an employee's
rights under Title VII are not susceptible of prospective waiver.
(Material in parentheses added.) /2/
Under the AP proposal, an AIW attempt to enforce an arbitration award
barring AP from discriminating against any AIW-represented employees in
wages, work assignments, job bidding, promotions, etc. on the basis of
sex, race or national origin, could be nullified by an employee charge
filed with an appropriate federal or state agency alleging he had been
disciplined or discharged because of his race or national origin. Simi
larly AP cold refuse to accept or process an employee grievance over his
discharge for refusing to handle materials or substances he believed
hazardous or dangerous to his health because AIW had filed a charge with
an appropriate federal or state agency seeking an order prohibiting AP
from utilizing the material or substance on the ground it was hazardous
or dangerous to the health of all the employees in the plant. Similar
examples may be readily visualized.
AP's proposal not only attempts to require AIW either to waive the
statutory right of the employees it represents to invoke or file and
process or adjust their grievances over alleged AP breaches of an AP-AIW
contract covering their wages, hours and working conditions or their
statutory right to file charges with an appropriate federal or state
agency, an election which would bar resort to forums providing different
remedies in the interests of differing public and private policies and
goals for the sole reason similar facts give rise to their invocation.
I find, on the basis of the foregoing, AP's insistence to impasse on
AIW acceptance of a contract provision imposing impermissibly broad
limitations on the exercise by AIW and/or the AP employees it represents
of their public or statutory rights violated 8(a) (1) and (5) of the
Act. /4/
C. The AP Transfer of Bargaining Authority Demand
Prior to the execution of the 1985-1988 AP-AIW contract, AP employees
at Raleigh, North Carolina represented by another union and AP's
AIW-represented employees at Sioux Falls were covered by a single health
plan or policy issued by the Pilot Life Insurance Company (after
negotiation of its terms with AP).
In 1985 AT negotiated a health plan with a different carrier,
Protective Life Insurance Company.
Under the terms of the 1985-1988 AP-AIW contract, AP agreed to freeze
the costs to the AIW-represented employees at Sioux Falls under the 1985
plan or policy provided by Protective.
In 1986, AT and Protective agreed to increase the health plan
premiums, increase the employee deductible from $100 to $200, increase
the out-of-pocket cap on employee expenditures for medical expenses
front $600 for single persons and $700 for families to $1000 for both,
to restrict hospital admissions, and to eliminate second surgical
opinions. The changes were effected without prior notice to or
bargaining with AIW.
AIW filed unfair labor practice charges over AP's unilateral
implementation of the changes in the plan.
On November 20, 1986 the Board found AP's unilateral implementation
violated the Act /5/ and ordered AP to reimburse all AIW-represented
employees at Sioux city for medical expenses exceeding the deductible
and the out-of-pocket cap established in 1985. /6/
AP complied with the order and since has reimbursed the
AIW-represented employees at Sioux Falls for expenditures in excess of
the deductible and the cap. The union-represented employees at Raleigh,
however, accepted the changes and also continued the employee dependency
coverage contribution of $39.00 per month towards the premium costs for
the health plan (as against $14.00 per month by the AIW-represented
employees at Sioux Falls). /7/
In its initial and first amended proposals for a successor to the
1985-1988 AP-AIW contract, AP demanded AIW agree to the same deductible
and out-of-pocket cap for the employees it represented as that of the
Raleigh employees and an increase in the dependency coverage
contribution of the employees it represented to the same amount the
Raleigh employees were contributing.
However, in its April 25, 1988 final offer, AP added an additional
demand; that during the life of the successor contract AIW authorize
the union representing the Raleigh employees to bargain and agree upon
changes in the health plan carrier, changes in the health plan benefits,
changes in the employee contributions towards the cost of the health
plan and any other changes, with AIW and the employees it represented
limited to an explanation of the changes and the reasons for their
adoption and implementation.
An employer demand that the collective bargaining representative of
his employees abdicate and assign to another its status and role as
bargaining agent with respect to the employees' wages, hours or working
conditions has long been held a non-mandatory subject of bargaining and
employer insistence thereupon to impasse a violation of Section 8 (a)
(1) and (5) of the Act. /8/
Not only that, a bargaining agent's agreement thereto could subject
it to a charge of failure to fairly represent (by employees dissatisfied
with the designee' s agreement or agreements concerning their wages,
hour's or working conditions). /9/
Thus by acceding to the AP demand, AIW not only would authorize
another union to negotiate and accept changes in the AIW-represented
employees' wages binding on those employees, it would expose AIW to
employee claims of failing to fairly represent them in the event the
AIW-represented employees were dissatisfied with changes proposed by AP
and accepted by the other union in the health plan carrier and/or
benefits and/or employee premium contributions.
I therefore find and conclude by insisting to impasse /10/ that AIW
accent its demand for delegation or transfer to another union of its
bargaining authority concerning the negotiation and implementation of
changes in the health insurance carrier and/or health benefits and/or
employee contributions to health plan premiums and/or other health plan
changes affecting the Sioux Falls employees represented by AIW, AP
violated Section 8(a) (1) and (5) of the Act.
D. The AP Failure to Post and Bid
The 1985-1988 AP-AIW contract listed the job classification of
"layout" at a rate of $8.26 and the job classification of "welder" at a
rate of $7.95.
The contract also provided AP would post and accept bids on any new
job and fill the job with the senior bidder demonstrably able to perform
the duties of the posted job.
In February of 1988 AP notified AIW it had purchased and installed
two new machines - a Whitney machine and a Torch Mark machine - and that
it would post the jobs of operating the two machines, in accordance with
the terms of the expired contract and past practice.
Instead, however, AP assigned the "layout" rate to the two jobs,
assigned unit employee McComber, a welder, to operate the Whitney
machine and assigned unit employee Vandenberg, another welder, to
operate the Torch Mark machine.
AP neither notified nor advised AIW of the assigned
rate and personnel assignments prior to their effectuation, and ignored
AIW's position the two jobs should have been filled through the
bid-posting and job-filling procedure contained in the 1985-1988
contract and previously practiced.
The Board and reviewing courts have long applied the principle an
employer is required to maintain existing wages, hours and working
conditions until the employer and the bargaining agent representing his
employees have bargained either to agreement or impasse concerning any
changes therein. /11/
Thus employers have been found to have violated Section 8(a) (1) and
(5) of the Act by:
1. changing the existing procedure governing assignment of
employees to "markup" jobs prior to union agreement or in-passe
(Sacramento Union, 258 NLRB 1074 (1980));
2. failing to follow the past practice of recalling employees
from layoff on the basis of their seniority prior to union
agreement or impasse (Quality Packaging Co., 265 NLRB 1141
(1982));
3. failing to follow the past practice of laying off employees
on the basis of their seniority prior to union agreement or
impasse (Johns Manville Sales Corp., 282 NLRB No. 40 (1986));
4. combining job classifications following contract expiration
but prior to agreement or impasse (Richmond Recording Corp., d/b/a
PRC Recording Co., 280 NLRB No. 77 (1986), enfd. 127 LRRM 2148
(7th Cir. 1987));
5. failing to hire through the hiring hall procedure
established in an expired contract in recruiting new employees
after contract expiration and prior either to union agreement or
impasse (Southwestern Steel & Supply Co., 276 NLRB 1569 (1985),
enfd. 806 F.2d 1111 (D.C. Cir. 1986); Southwest Security
Equipment Co., 262 NLRB 1328 (1982), enfd. 736 F.2d 1332 (9th Cir.
1984));
6. discontinuing payments into health, pension funds and
discontinuing other fringe benefits established under an expired
contract prior either to union agreement or impasse (Auto Fast
Freight, 272 NLRB 561 (1984), enfd. 793 F.2d 1126 (9th Cir. 1986);
Stone Board Yard, 264 NLRB 981 (1982), enfd. 715 F.2d 441 (9th
Cir. 1982); Peerless Roofing Co., 247 NLRB 500 (1980), enfd. 641
F.2d 734 (9th Cir. 1981); Imperial Foods, Inc., 287 NLRB No.
126 (1988); Beitler-McKee Optical Co., Inc., 287 NLRB No. 142
(1987); Schmidt-Tiago Constr. Co., 286 NLRB No. 31 (1987)).
AP contends it was not required to post the two jobs and follow the
bid procedure because the contract also provided bids were limited to
employees earning an hourly rate lower than the rate of a new job and,
in AP's judgement only four employees within the unit were qualified to
perform the duties of the two jobs and all four were earning the rate AP
assigned to the job.
That argument is nullified by the fact the two employees assigned the
jobs were earning less than the rate assigned to the job when assigned
to perform it, and may well l,ave lost out in a bidding competition with
other similarly situated employees, had AP posted the two jobs and
received bids.
On the basis of the foregoing, I find and conclude by filling two
newly created lobs by appointment rather than through the posting and
bid procedure established under the expired contract and past practice
prior either to securing AIW agreement thereto or bargaining impasse, AP
violated Section 8(a) (1) and (5) of the Act.
E. The Health Plan Change
Findings have been entered (in II.C.) since 1986 the AIW-represented
employees: have been covered by a health plan negotiated between AP and
Protective Life Insurance Company; have contributed $14.00 per month
towards premium cost.; and have been reimbursed for their expenditures
exceeding $100 and the $600/700 cap on out-of-pocket expenditures;
i.e., AP has continued to comply with the terms of the 1986 Board
decision through the term of the 1985-1988 AP-AIW contract and during
negotiations for a successor thereto.
Following the expiration of the 1985-1988 AP-AIW contract, AP
negotiated a new health plan with Lincoln Life Insurance Company. That
plan contained provisions identical to those of the Protective Life plan
and AP continued to pay any difference in dependent coverage costs above
the $14.00 per month contributed by AIW-represented employees thereto
and to reimburse AIW-represented employees for expenditures exceeding
the original $100 deductible and $600/700 out-of-pocket maximum.
Thus all that occurred during the negotiations was a change in
insurance carriers, with no change affecting the wages, hours or working
conditions of the AIW-represented carriers.
In such circumstances, I find and conclude by effecting the change in
carriers during negotiations, AP did not violate the Act. /12/
F. The Health and Pension Plan Bargaining
The 1985-1988 AP-AIW contract contained the following language
pertaining he health and pension plans covering the Sioux Falls
employees:
ARTICLE XX
Insurance, Pensions, Etc.
Section 1. During the life of the Athey Products Corporation
Union Agreement, we of the KOLMAN Division of Athey Products
Corporation agree to continue the insurance and pension plan
provisions as attached in Exhibit "D". The Company also agrees to
study and look into any possible changes or advantages that may
become available in the future that could help or improve
coverage.
Section 2. The Company agrees to freeze the cost of existing
insurance paid by the employee at the level of contract date
through the life of this agreement. However, if improvements are
possible or changes can enhance or improve coverage by a change in
insurance companies, etc., these possible changes will be reviewed
by both the Company and the Union to determine acceptance of same.
In this case the Company and the employees will share equally any
increased cost involved.
Section 3. Insurance for laid off employees will continue one
additional month beyond termination.
On October 21, 1987 AP and Local 465 of the Operating Engineers Union
(OE) executed a contract for a term expiring April 20, 1990 containing
the following language pertaining to health and pension plans covering a
unit of AP's Raleigh employees:
ARTICLE XVI - INSURANCE AND PENSIONS, ETC.
Section 1. During the term of this Agreement, and after meeting
certain requirements, employees in the Bargaining Unit will be
fully covered by the provisions of the company's non-contributory
pension plan. Information concerning the plan can be obtained
from the Company Personnel Office. Any improvements made in the
Pension Plan during the tern of this Agreement will be applied to
all members of the Bargaining Unit.
Section 2. Health Care Plans, Weekly Disability, Life, and
A.D.D. Insurance. The Company's Comprehensive Plan, consisting
of hospital, surgical, medical services, dental in the optional
HMO plan only, vision care in the optional HMO plan only,
disability, life, and A.D.D. shall be provided for all eligible
employees throughout the life of this Agreement in accordance with
the current provisions of the plan which are part of this
Agreement by reference. The amounts of the employer's and
employees' current contribution to the premium rate for any
coverage under the plans are set forth below:
PRESENT PLAN HMO PLAN
"Protective Life" Figures Quoted for
Acceptance by
Dec. 1, 1987
Employees Only
Insurance:
Cost to Employees:
Weekly: $ 0 $ 2.61
Monthly: 0 11.33
Cost to Company:
Weekly: $ 16.00 $ 16.00
Monthly: 69.34 69.34
Total/Month: $ 69.34 $ 80.67
Family Insurance:
Cost to Employees:
Weekly: $ 9.01 $ 20.98
Monthly: 39.01 90.92
Cost to Company:
Weekly: $ 28.61 $ 28.50
Monthly: 123.96 123.51
Total/Month: $162.97 $ 214.43
NOTE: In case of price increases, 50% of the increase will be
to the
account of the Company; 50% of the increase will be
to
the account of the employee. In case of price deduction, the
savings will be proportioned equally to the Company and employee
in accordance to the percentage monetary contributions.
Changes in benefits and/or contributions shall be reviewed by
Management and two Bargaining Unit employees selected by the Union
prior to implementation by the Company.
AP's initial (December 3, 1987) proposal for a successor to the
expiring 1985-1988 AP-AIW contract contained language respecting health
and pension plans identical to that contained in Article XVI of the
1987-1990 AP-OE contract.
With respect to the health and pension plans, AIW initially (on
December 3, 1987) proposed the successor to the expiring 1985-1988
AP-AIW contract contain the language of the 1985-1988 AP-AIW contract as
modified by language:
1. Raising A & E benefits to $125 per week;
2. Providing paid up hospital benefits for employees on
retirement from the Company, including employees forced to retire
because of disability;
3. Providing dental and optical coverage; and
4. Providing with respect to the pension plan,
a. Five year vesting,
b. An option to retire after 30 years of service, regardless
of age, and
c. An increase in pension benefits.
James Cloonan, the president and chief executive officer of AP, /13/
appeared at the first (December 3, 1987) bargaining session between AP
and AIW. Asked by the chief AIW negotiator (AIW representative Stan
Frank) to respond to AIW's proposals concerning the health plan, Cloonan
stated AP had a plan in effect at Raleigh, and wasn't going to negotiate
anything else for Sioux Falls employees. /14/
Blalock /15/ testified AP counsel John Burke stated Cloonan was only
setting out AP's opening bargaining position by the remarks just quoted,
everything was negotiable. Frank did not contradict that testimony.
(Burke, Cloonan and others identified as in attendance did not testify.)
Blalock's notes of the fleeting support his testimony; Burke's notes
reflect Cloonan stated AP was proposing the Sioux Falls employees
contribute the full $19.00 towards the cost of dependent coverage
instead of the $14.00 they were currently contributing, that this was
only AP's initial bargaining position, and that Cloonan confirmed his
statement.
In essence, Blalock's testimony is uncontradicted and has documentary
support. I therefore credit that testimony.
It is clear AP never deviated from the position Cloonan announced at
the opening of negotiations - that AP was not going to settle for other
than adoption by the AIW-represented employees at Sioux Falls of the
health plan language and plan established by earlier agreement between
AP and the representative of its Raleigh employees.
Each time in the negotiations subsequent to December 3, 1987 Frank
sought to generate discussion of AIW's proposals concerning the health
and pension language and plans to be embodied within a successor
contract, /16/ Blalock replied there was only going to be one health
plan and one pension plan covering the Raleigh and Sioux Falls
employees, further commenting the Raleigh employees were upset over the
fact Sioux Falls employees had been contributing less than they
contributed towards the cost of dependent coverage. /17/
In the course of his testimony, Blalock stated there were
approximately 67 employees in the Sioux Falls unit represented by AIW
and between 300 and 350 union-represented employees at Raleigh; AP had
for at least 10 years provided a single health plan and a single pension
plan covering both its union-represented employees at Sioux Falls and
its union-represented employees at Raleigh, and that the employees at
Sioux Falls benefited by such inclusion through higher benefits at lower
costs than they would receive by separate plan coverages.
Neither party to negotiations for a collective contract may be
required to make concessions or yield on a position fairly maintained
(H. K. Porter Co., Inc. v. NLRB, 397 U.S. 99 (1970) but (pursuant to
Section 8(a) (5) and (d) of the Act) are required to seriously pursue
negotiations aimed at resolving their differences and ultimately
reaching agreement on contract terms NLRB v. Insurance Agents
International Union, 361 U.S. 477 (1960)).
I find and conclude AP's adherence throughout bargaining on AIW
acceptance of continued coverage under single health and pension plans
covering both the Sioux Falls and Raleigh employees and assumption by
the Sioux Falls employees of the same deductible, Cap and contribution
for dependent coverage was a fairly maintained position based on
reasonable economic grounds and therefore not violative of the Act.
Conclusions of Law
1. At all pertinent times AP was an employer engaged in commerce in
a business affecting commerce and AIW was a labor organization within
the meaning of Section 2 of the Act.
2. At all pertinent times AIW was duly designated by a majority of
AP's employees within the following unit as their exclusive
representative for collective bargaining purposes within the meaning of
Section 9 of the Act:
All production and maintenance employees at AP's Sioux Falls,
South Dakota facility; excluding inspectors, lab technicians,
engineers, office clerical employees, guards and supervisors as
defined in the Act.
3. AP violated Section 8(a) (1) and (5) of the Act by insisting to
impasse in negotiations for a successor to the 1985-1988 contract
between AP and AIW on AIW acceptance of AP proposals:
a. That AIW accept impermissibly broad limitations on the
exercise by AIW and/or the employees it represented of their
public or statutory rights;
b. That AIW transfer to another union its bargaining authority
concerning any changes during the life of a successor contract in
the health plan carrier and/or benefits and/or employee
contributions to premium costs with respect to the health plan,
benefits thereunder and employee contributions thereto established
at the execution of the successor contract.
4. AP violated Section 8(a) (1) and (5) of the Act by selecting and
assigning employees to operate the Whitney and the Torch Mark machines
rather than posting the jobs of operating the machines for bid and
selecting the operators through the procedures set out in the 1985-1988
contract between AT and AIW following the expiration of that contract
but prior to either agreement with AIW on terms for a successor contract
or bargaining impasse.
5. AP did not otherwise violate the Act.
6. The aforesaid unfair labor practices affected and affect
interstate commerce as defined in the Act.
The Remedy
Having found AP engaged in unfair labor practices, I recommend AP be
directed to cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act.
In view of my findings AP violated the Act by selecting and assigning
employees to operate the Whitney and Torch Mark machines subsequent to
the expiration of the 1985-1988 AP-AIW contract and prior either to
agreement upon changes for incorporation in a successor contract or
bargaining impasse, or AIW agreement to such selection and assignment
rather than resort to the bidding and selection procedures set out in
the 1985-1988 AP-AIW contract, I recommend AP be directed to post the
two jobs in question for bid, fill them by applying the selection and
assignment procedures set out in the 1985-1988 contract and pay to the
successful bidders (if other than the incumbents in the two jobs) the
difference in wages between the rates the successful bidders were
receiving when the incumbent jobholders were selected and assigned and
the rates the successful bidders would have received had the 1985-1988
contract's bid and selection procedures been followed, for a period
commencing with the date the incumbent jobholders were selected and
assigned to the jobs and the date the successful bidder is assigned
thereto, with interest on the sums due computed in accordance with the
formulae set out in New Horizons for the Retarded, Inc., 283 NLRB No.
181 and Isis Plumbing & Heating Co., 138 NLRB 716.
On the basis of the foregoing findings of fact, conclusions of law
and the entire record in this case, and pursuant to Section 10(c) of the
Act, I recommend the issuance of the following: /18/
ORDER
KOLMAN/ATHEY DIVISION OF ATHEY PRODUCTS CORPORATION, its officers,
agents, successors and assigns, shall:
1. Cease and desist from:
a. insisting to impasse during bargaining with ALLIED INDUSTRIAL
WORKERS OF AMERICA, AFL-CIO over terms for a contract covering the
wages, hours and working conditions of Athey employees represented by
that organization on that organization's acceptance of a contract
provision limiting the exercise by that organization and the employees
it represents of their right to file charges with federal or state
agencies administering public statutes over claims based on same or
similar facts forming a basis for a claim Athey has violated its
contract with ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO;
b. insisting to impasse during bargaining with ALLIED INDUSTRIAL
WORKERS OF AMERICA, AFL-CIO over terms for a contract covering the
wages, hours and working conditions of Athey employees represented by
that organization on that organization's acceptance of a contract
provision authorizing and empowering another labor organization
representing Athey employees at Raleigh, North Carolina to negotiate and
agree on behalf of Athey employees represented by ALLIED INDUSTRIAL
WORKERS OF AMERICA, AFL-CIO to changes in their insurance carrier,
benefits, employee contributions to premiums or other health plan
changes during the life of a successor to Athey's expired contract with
ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO;
c. Unilaterally selecting and assigning Athey employees within the
unit represented by the ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO to
operate machines acquired subsequent to the expiration of Athey's
1985-1988 contract with that organization and prior either to agreement
by that organization or bargaining impasse over a proposal by Athey to
permit Athey's unilateral selection and assignment of such jobs.
2. Take the following affirmative action designed to effectuate the
policies of the Act:
a. Post the jobs of operating the Whitney and the Torch Mark machines
on the appropriate employee bulletin boards for bid, process the bids
received in accordance with the policies and procedures set out in the
1985-1988 contract between Kolman/Athey Division of Athey Products
Corporation and Allied Industrial Workers of America, AFL-CIO, and
select and assign the successful bidders under the application of those
policies and procedures to operate the two machines;
b. Make whole the successful bidders for those two jobs for any wage
losses they suffered by virtue of the fact they were not selected and
assigned to operate the two machines in the manner set out in "The
Remedy" section of this Decision;
c. Bargain with Allied Industrial Workers of America, AFL-CIO at its
request concerning the terms of a contract covering the wages, hours and
working conditions of:
All production and maintenance employees employed by
Kolman/Athey Division of Athey Products Corporation at its Sioux
Falls, South Dakota facility, excluding inspectors, lab
technicians, engineers, office clerical employees, guards and
supervisors as defined in the Act.
d. Post at its Sioux Falls, South Dakota facilities copies of the
attached Notice marked "Appendix." /19/ Copies of the notice, on forms
provided by the Regional Director of Region 18, shall be signed by an
authorized representative of Kolman/Athey Division of Athey Products
Corporation and posted immediately after their receipt, and maintained
for 60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken to ensure the notices are not altered, defaced or
covered by any other material.
e. Notify the Regional Director for Region 18, in writing, within 20
days from the date of this Order, what steps have been taken to comply
with the Order.
Dated: April 5, 1989
GEORGE CHRISTENSEN
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 insist to impasse, during bargaining with ALLIED
INDUSTRIAL WORKERS OF AMERICA, AFL-CIO over terms for a contract
covering your wages, hours and working conditions, that your union
accept an impermissibly broad contract provision limiting its and your
exercise of its and your right to file charges with state and/or federal
agencies alleging we have violated public laws based on facts forming a
basis for a claim we have also violated a contract between your union
and us.
WE WILL NOT insist to impasse during such bargaining on a contract
provision authorizing a union representing our employees at Raleigh,
North Carolina rather than your union to negotiate and agree to changes
in your health insurance plan, including changes in the insurance
carrier, changes in benefits, changes in your contributions towards the
premium costs of your coverage or other changes.
WE WILL NOT select and assign employees within the unit represented
by your union to operate machines acquired and placed in operation
subsequent to the expiration of our 1985-1988 contract with your union
and prior either to agreement with your union or a bargaining impasse
over a proposal by us permitting our unilateral selection and assignment
of such jobs.
WE WILL post the jobs of operating the Whitney machine and the Torch
Mark machine on appropriate employee bulletin boards for bid, process
the bids received in accordance with the policies and procedures set out
in our 1985-1988 contract with your union and select and assign the
successful bidders under the application of those policies and
procedures to operate the two jobs.
WE WILL make whole the successful bidders for those two jobs for any
wage losses they suffered by virtue of our failure to select them for
the initial operation of the two jobs by paying them the difference
between their rates of pay and the rates of pay paid to the original
employees assigned for a period beginning with the date the original
assignees were selected and assigned and the dates the successful
bidders are assigned, with interest on the amounts due.
WE WILL bargain with ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO at
its request over the terms of a contract covering the wages, hours and
working conditions of:
All production and maintenance employees employed by
Kolman/Athey Division of Athey Products Corporation at its Sioux
Falls, South Dakota facilities, excluding inspectors, lab
technicians, engineers, office clerical employees, guards and
supervisors as defined in the Act.
KOLMAN/ATHEY DIVISION OF
ATHEY PRODUCTS CORPORATION
(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 with any other
material. Any questions concerning this notice or compliance with its
provisions may be directed to the Board's Office, 110 South Fourth
Street, Room 316, Minneapolis, MN 55401-2291; telephone: (612)
581-1793.
'Footnotes to the Decision'
/1/ While every apparent or nonapparent conflict in the evidence has
not been specifically resolved below, since my findings are based upon
my examination of the entire record, my observation of the demeanor of
every witness while testifying and my evaluation of the reliability of
their testimony, any testimony in the record which is inconsistent with
my findings is hereby discredited.
/2/ Alexander v. Gardner Denver Co., 415 U.S. 36, 51-52 (1974).
/3/ There was an anti-discrimination provision in the 1985-1988
AP-AIW contract which neither sought to modify in the negotiations.
/4/ I reject AP's contention it did not violate the Act because it
did not "insist" on AIW agreement to its proposal. The proposal
continued unchanged in all its written contract proposals, including its
final offer. While AP did not place the terms of its final offer in
effect, it repeatedly asserted (in its brief) the parties were
deadlocked or at impasse on April 25, 1988 when it submitted its final
offer and it is apparent it did not place its final offer in effect
because shortly after that submission AIW charged the proposal was an
unfair labor practice.
/5/ 282 NLRB 29 (1986)
/6/ AP did not deduct increased contributions towards the health plan
premiums from the wages of the AIW-represented employees.
/7/ AP continued to pay the $25.00 difference between the Raleigh
employees' contribution and that of the AIW-represented employees.
/8/ NLRB v. Borg Warner Corp., 356 U.S. 342 (1958) (employer demand
other that the agent designated by the employees be named as the
contract bargaining agent); Taormina Co., 94 NLRB 884 (1951), enfd. 207
F.2d 251 (5th Cir. 1953) (same as above); L. G. Everist, Inc., 103
NLRB 308 (1953) (employer demand bargaining agent accept form of
another's contract); Int. Bro. El. Workers (Texlite, Inc.), 119 NLRB
1792 (same as Borg Warner, ibid.); American Vitrified Products Co., 127
NLRB 701 (1960) (employer demand limiting bargaining agent's selection
of its representative); King Radio Corp., Inc., 172 NLRB 1051 (1968)
(same as Borg Warner, ibid.); Newspaper Agency Corp., 201 NLRB 480
(1973) (employer demand bargaining agent abdicate and assign to another
its right and duty to bargain on behalf a unit of that employer's
employees); etc.
/9/ Southwestern Pipe, Inc., 179 NLRB 364 (1969); rev. on other
grounds, 444 F.2d 340 (5th Cir. 1971).
/10/ I again find and conclude the parties were at impasse on April
25, 1988 based or the reasons cited in fn. 4.
/11/ NLRB v. Katz, 369 U.S. 736 (1962); Carpenter Sprinkler Cord. v.
NLRB, 605 F.2d 60 (1st Cir. 1979); Saunders House v. NLRB, 719 F.2d 683
(2d Cir. 1983); Hinson v. NLRB, 428 F.2d 133 (8th Cir. 1970); NLRB
i. Pacific Grinding Wheel Co., 512 F.2d 1343 (9th Cir. 1978); NLRB
Carilli, 618 F.2d 1206 (1981); NLRB v. Cauthorne, 691 F.2d 1023 (D.C.
Cir. 1982) Teamsters Local 175 v. NLRB, 788 F.2d 27 (D.C. Cir. 1986)
/12/ Cf. American Federation of Musicians. 202 NLRB 620 (1973).
/13/ The complaint alleged, the answer admitted and I find at all
pertinent times Cloonan was an officer, supervisor and agent of AP
acting on its behalf within the meaning of Section 2 of the Act.
/14/ Donald Blalock, the general manager at AP's Sioux Falls plant,
corroborated Frank's testimony to that effect, and both the bargaining
notes of Blalock and AP counsel John Burke, who attended the meeting,
corroborate Frank's testimony.
/15/ The complaint alleged, the answer admitted and I find at all
pertinent titles Blalock was a supervisor and agent of AP acting on its
behalf within the meaning of Section 2 of the Act.
/16/ AIW proposed two modifications of its original proposals
concerning health and pensions; AP adhered to its original proposal
throughout the negotiations (except for the addition of the transfer of
bargaining authority demand set out in II.C. above).
/17/ Blalock did not contradict Frank's testimony to that effect.
/18/ 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.
/19/ If this Order is enforced by a Judgment of the 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."
303 NLRB No. 7
D--2007
Los Angeles, CA
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORANAMENTAL IRON
WORKERS, LOCAL NO. 433 (The Associated General Contractors of
California, Inc.) and WALDO F. KUSTERNS, an Individual
Case 21--CB--5081
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER REMANDING
On October 31, 1989, the Regional Director for Region 21 of the
National Labor Relations Board issued a backpay specification and notice
of hearing in the above-entitled proceeding seeking to effect compliance
with that portion of the Board's 1977 order directing the Respondent,
inter alia, to make whole those individuals who suffered loss of
earnings as a result of the Respondent's assigning 76 jobs to favored
members.
Thereafter, on various dates between November 1989 and April 1990 a
hearing was held before Administrative Law Judge George Christensen. In
September 1990 counsel for the General Counsel and the Respondent
submitted a joint motion to Judge Christensen seeking his approval of a
settlement agreement. on November 6, 1990, after considering objections
submitted by the Charging Party, Judge Christensen issued an Order
granting the joint motion and approving the settlement.
On November 14, 1990, the Charging Party filed a request for special
permission to appeal the judge's Order approving the settlement
agreement. The Charging Party contends that the General Counsel neither
sought nor obtained approval of the settlement from any of the
discriminatees, that the settlement does not adequately remedy the
Respondent's unfair labor practices or make the discriminatees whole,
that the motion to approve the settlement was not supported by a showing
that the Respondent's defenses might be sustained, that the factual
record and the authority cited do not support the premises of the joint
motion, and that the judge's conclusion that approving the settlement
effectuates the purposes of the Act is not a legal basis for depriving
the discriminatees of the backpay to which full adjudication would
entitle them. The Charging Party moves the Board to reject the
settlement agreement and remand this proceeding for a hearing.
On November 20 and December 4, 1990, respectively, the General
Counsel and the Respondent /1/ filed opposition to the Charging Party's
request for special permission to appeal. The General Counsel asserts
that "precise identification of the 76 discriminatees is an impossible
task given the contractual procedures in effect during the relevant
period of time regarding the dispatch of individuals to jobs from its
hiring hall," that it was not possible to formulate specific amounts of
backpay for each discriminatee, and that there are a variety of
potential defenses, including whether the discriminatees mitigated
damages, whether discriminatees failed to seek work through the hiring
hall, and whether certain discriminatees are barred by the doctrines of
res judicata or collateral estoppel from seeking relief before the
Board. The General Counsel further asserts that the Board has taken into
consideration a number of factors in deciding whether to approve
non-Board settlements, that the settlement agreement here meets the
Board's criteria, that none of the employees who testified had actually
been determined to be a discriminatee, and that in all the
circumstances, the Board should deny the appeal and affirm the judge's
approval of the proposed settlement.
Considering all the parties' arguments, we conclude that we should
grant the Charging Party's request to appeal and remand the case to the
judge for a fuller explanation of his reasons for recommending approval
of the settlement.
We are sympathetic to the arguments made by the General Counsel and
the Respondent concerning the difficulties of litigating the backpay
issues in this case, and we agree with our dissenting colleague that
termination of this lengthy litigation is a consummation devoutly to be
wished. We do not agree, however, that approving the settlement on the
present record would necessarily lead to that result. The Charging Party
would be entitled to seek court review of our approval of the settlement
and, if a reviewing court found our reasons for approving the settlement
inadequate, the case would be back before us for yet another round of
litigation. See Oil Workers v. NLRB, 806 F.2d 269 (D.C. Cir. 1986).
The Board has announced standards applicable to proposed non-Board
settlements of unfair labor practice cases in which complaints have
issued but violations have not yet been proven. Independent Stave Co.,
287 NLRB 740 (1987). Those same standards logically apply to settlements
of backpay proceedings in which the backpay specification has issued, a
judge has not yet resolved the issues raised by the specification and
the respondent's defenses, and one of the parties to the proceeding
objects to the settlement. The judge did not apply those standards, or
any other precise standards, here. He simply recited the procedural
history of the case, described the terms of the proposed settlement,
stated that he had considered the arguments of counsel and the evidence
in the proceeding, and was "persuaded (that) the purposes of the Act"
would be "served by (his) accepting and approving the settlement
agreement." The Charging Party has, not unreasonably, attacked this as a
" summary . . . disposition of (the discriminatees') claims."
Because the judge is the one who has heard the evidence, we believe
he is in a better position than we, at least initially, to articulate a
ground for accepting or rejecting the proposed settlement under the
Independent Stave standards. This will not necessarily entail an
extended factual and legal analysis of all the issues raised by the
backpay specification and the Respondent's answer. More explanation than
the judge has supplied, however, is needed before approval of the
settlement can be justified.
ORDER
It is ordered that the Charging Party's request for special
permission to appeal is granted.
IT IS FURTHER ORDERED that this proceeding is remanded to
Administrative Law Judge George Christiansen for the preparation of a
decision and recommended Order under Section 102.45 of the Board's Rules
and Regulations in accordance with our opinion above.
IT IS FURTHER ORDERED that the judge shall prepare and serve on the
parties a supplemental decision containing findings of fact, conclusions
of law, and recommendations, and that following service of the
supplemental decision on the parties, the provisions of Section 102.46
of the Board's Rules and Regulations shall be applicable.
By Direction of the Board.
Dated, Washington, D.C. May 24, 1991
James M. Stephens, Chairman
Mary Miller Cracraft, Member
Clifford R. Oviatt, Jr., Member
NATIONAL LABOR RELATIONS BOARD
MEMBER DEVANEY, dissenting.
I would accept the settlement as recommended by the General Counsel
and the administrative law judge and put this matter to rest. The
chronology in this proceeding brings to mind Charles Dickens' Bleak
House and the infamous case of Jarndyce v. Jarndyce. As Dickens put it:
This scarecrow of a suit has . . . become so complicated that
no one alive knows what it means. The parties to it understand it
least .
Innumerable children have been born into the cause;
lnnumberable young people have married into it; Innumerable old
people have died out of it.
Scores of people have deliriously found themselves made parties
. without knowing how or why . . . . But (it) still drags its
dreary length to court, perennially hopeless. /1/
The underlying charge in this case was filed in 1974; the complaint
issued in 1975. After 6 days of hearing, Administrative Law Judge
Richard Taplitz issued a decision and recommended Order in 1976. In
1977, the Board affirmed the judge's decision and adopted his
recommended Order. The Board's Decision and Order was affirmed by the
Ninth Circuit in 1979 (600 F.2d 770), and certiorari was denied by the
U.S. Supreme Court (445 U.S. 915) in 1980.
Nine years later, after a prolonged investigation and the issuance of
an original and amended backpay specification in 1989, this matter came
before Administrative Law Judge George Christensen who conducted a
hearing on the issues raised by the parties on various dates between
November 1989 and April 1990. In September 1990 counsel for the General
Counsel and counsel for Respondent Union submitted a joint motion to
Judge Christensen seeking his approval of a settlement agreement. And
now, 17 years after the charge was filed, and 14 years after the Board's
initial Decision and Order, my colleagues remand this case for further
hearing---an action which, it seems to me, is likely to result only in
further litigation before the Board and the circuit courts.
Like Jarndyce v. Jarndyce, this case has become a sad commentary
which underscores the futility which follows when, as here, litigation
becomes an end in itself. I am fully aware that the settlement accepted
by the judge provides for less than 20 percent of the figure set forth
in the General Counsel's original compliance specification. However,
given the uncontroverted difficulty, if not the impossibility, of
identifying individual discriminatees and the uncertainties of further
litigation which the General Counsel faced, I believe returning this
matter to the administrative law judge at this point serves no purpose.
My colleagues suggest that the case will somehow be expedited by
remanding to the judge for "a fuller explanation of his reasons for
recommending approval of the settlement." As my colleagues note, the
judge fully reviewed the facts and arguments advanced by the parties and
the evidence adduced at hearing. on the basis of that review, the judge
held that the purposes of the Act would be served by accepting the
settlement. I do not believe that, on remand, the judge will be in any
better position to expand on his rationale for acceptance of the
settlement. Both the General Counsel and the judge recognize that the
settlement amount today is less than it would have been had the matter
been settled when the charge was filed 17 years ago.
Two old and tested maxims from the world of poker come to mind: (1)
"in for a penny, in for a pound"; and (2) "don't throw good money after
bad." We have thrown in more than our share of good money. It is time to
call a halt and accept the recommendation of the General Counsel, the
Respondent, and the judge to accept the settlement and end this
litigation.
Dated, Washington, D.C. May 24, 1991
Dennis M. Devaney, Member
NATIONAL LABOR RELATIONS BOARD
'Footnotes to the Decision and Order'
/1/ The Respondent joined the General Counsel's opposition and also
argued that "there are a number of compelling defenses to the award of
any back to virtually all of the alleged discriminatees."
'Footnotes to the Dissent'
/1/ Charles Dickens, Bleak House.
303 NLRB No. 6
D--2006
Newark, NJ
INTERNATIONAL TOTAL SERVICES, INC. and ALLEN A. MOSS, an Individual
Case 22--CA--17311
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER
Upon a charge filed by Allen A. Moss, an individual, on October 18,
1990, and an amended charge filed on November 8, 1990, the General
Counsel of the National Labor Relations Board issued a complaint on
November 30, 1990, against International Total Services, Inc., the
Respondent, alleging that it has violated Section 8(a)(1), (3), and (4)
of the National Labor Relations Act. Although properly served copies of
the charge, the amended charge, and complaint, the Respondent has failed
to file a timely answer.
On January 25, 1991, the General Counsel filed a Motion for Summary
Judgment, with exhibits attached. On January 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 an
untimely response.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
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 shall be so found by the
Board." Further, the undisputed allegations in the Motion for Summary
Judgment disclose that the complaint specified that an answer was to be
filed by December 14, 1990. The Respondent did not file an answer, nor
did it request an extension of time to file. By letter dated December
27, 1990, however, the Respondent was given an extension of time until
January 3, 1991, to file its answer and was notified that failure to
file an answer by the close of business on that date would result in the
filing of a Motion for Default Judgment. Again, no answer was filed. On
January 4, 1991, the Respondent's counsel was notified by telephone that
its answer had not been received. She conceded that she had received the
December 27, 1990 letter and indicated that an answer would be filed
that day. During that telephone conversation, the Respondent was given
a second extension of time until close of business January 9, 1991, to
file an answer. The Respondent did not file an answer.
On February 20, 1991, the Respondent filed with the Board a motion
for leave to file answer out of rule contending that its failure to file
a timely answer was due to the Respondent's failure to receive the
complaint until after the expiration of the time period for filing its
response due to a relocation of its corporate headquarters, /1/ that
there exists a genuine dispute with regard to the complaint, and that
the denial of a hearing on the matter will result in a substantial
inequity. On February 20, 1991, the Respondent also filed a motion in
opposition to the General Counsel's Motion for Summary Judgment
asserting, inter alia, that the Respondent believed the charges had been
withdrawn in December.
On March 11, 1991, the General Counsel filed a reply to the
Respondent's motions contending that the complaint was duly served on
the Respondent, that there was sufficient opportunity for it to submit a
timely answer, and that the Respondent has failed to establish a
sufficient reason for its failure to file a timely response to the
Board's Order to Show Cause.
As indicated above, it is undisputed that the General Counsel granted
to the Respondent an extension of time to file a timely answer on two
separate occasions. Further, during a telephone conversation between the
General Counsel and the Respondent's counsel she conceded that the
December 27, 1990 letter was received. The letter explicitly stated that
"if an Answer is not received by the close of business" on January 3,
1991, "a Motion for Default Judgment will be filed." The Respondent has
not offered a sufficient explanation for its failure to act until about
6 weeks after the second extended deadline for filing a timely answer.
Therefore, we deny the Respondent's motion for leave to file an answer
out of rule.
We reject the Respondent's motion in opposition as a response to the
Notice to Show Cause because it is both untimely filed and lacking n
merit. The response was due on February 13 but was not received until
February 20. The Respondent's contention that it thought the charge had
been withdrawn in December does not excuse its failure to file a timely
response to a notice that clearly shows the existence of any Agency
proceeding on the charge. /2/ Nor does the contention have merit as a
reason for denying the General Counsel's Motion for Summary Judgment.
The General Counsel's letter to the Respondent dated December 27 and his
telephone conversation with the Respondent's counsel on January 4 made
it clear that the charge had not been withdrawn and that the Respondent
continued to have an obligation to answer the complaint.
Accordingly, we find that "good cause" does not exist for excusing
the late filing of the 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
Findings of Fact
I. Jurisdiction
At all times material, the Respondent, a corporation, with a place of
business in Newark, New Jersey, has been engaged in providing skycap
services to various airline companies including Continental Airlines.
During the 12 months preceding issuance of the complaint, the Respondent
in the course and conduct of its operations provided services valued in
excess of $50,000 for Continental Airlines, an enterprise within the
State of New Jersey, which is directly engaged in interstate commerce.
We find that the Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. We also find that the
Skycap Review Board is a labor organization within the meaning of
Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
About October 15, 1990, the Respondent discharged Allen A. Moss, its
employee. The Respondent engaged in such conduct against Moss because he
joined, supported, or assisted the Union, and engaged in concerted
activities for the purpose of collective bargaining or other mutual aid
and protection, and in order to discourage employees from engaging in
such activities or other concerted activities for the purpose of
collective bargaining or other mutual aid or protection. We find that
the Respondent's discharge of Moss violated Section 8(a) (3) and (1) of
the Act.
Since about November 8, 1990, the Respondent has refused to reinstate
employee Moss to his former position of employment. The Respondent has
engaged in such conduct against Moss because he filed charges and gave
testimony under the Act. We find that the Respondent's refusal to
reinstate Moss violated Section 8(a)(4) and (1) of the Act.
Conclusions of Law
1. By discharging Allen A. Moss because he joined, supported, or
assisted the Union and engaged in concerted activity for the purposes of
collective bargaining or other mutual aid or protection, 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.
2. By refusing to reinstate Moss to his former position of employment
because he filed charges and gave testimony under the Act, the
Respondent has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a) (4) and (1) and Section 2(6) and (7)
of the Act.
Remedy
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 unlawfully discharged employee Allen
A. Moss, we shall order the Respondent to offer him immediate and full
reinstatement to his former position or, if this position no longer
exists, to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed, and to
make him whole for any loss of earnings 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). We shall also order the
Respondent to remove from its files any reference to the unlawful
discrimination against Moss and notify Moss in writing that this has
been done and that the unlawful discrimination will not be used against
him in any way.
ORDER
The National Labor Relations Board orders that the Respondent,
International Total Services, Inc., Newark, New Jersey, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against employees because
they engaged in union or concerted activities.
(b) Refusing to reinstate employees to their former positions of
employment because they filed charges and gave testimony under the Act.
(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 Allen A. Moss 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 suffered as a result of the
discrimination against him, in the manner set forth in the remedy
section of the decision.
(b) Remove from its files any reference to the unlawful
discrimination against Allen A. Moss and notify him in writing that this
has been done and that this unlawful action 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 payrolls 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 its facility in Newark, New Jersey, copies of the
attached notice marked "Appendix." /3/ Copies of the notice, on forms
provided by the Regional Director for Region 22, 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 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. May 20, 1991
James M. Stephens, Chairman
Dennis M. Devaney, Member
John N. Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 discharge or otherwise discriminate against any of you
because of your union or concerted activities.
WE WILL NOT refuse to reinstate you to your former positions of
employment because you file charges or give testimony under the Act.
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 offer Allen A. Moss 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 WE WILL make him whole for
any loss of earnings he may have suffered as a result of our
discrimination against him, with interest.
WE WILL remove from our files any reference to the unlawful
discrimination against Allen A. Moss and notify him in writing that this
has been done and that our unlawful action will not be used against him
in any way.
INTERNATIONAL TOTAL SERVICES, 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, 970 Broad Street, Room
1600, Newark, New Jersey 07102-2570, Telephone 201--645--3652.
'Footnotes to the Decision and Order'
/1/ According to the certified mail receipt, the Respondent received
the complaint on December 5, 1990.
/2/ Neither is that failure adequately explained by the Respondent's
claim that the complaint and notice of hearing was not received until
after the time for filing an answer, a claim that in any event is belied
by the signed receipt acknowledging service of the complaint. See fn. 1,
supra.
/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."
303 NLRB No. 5
D--2005
Oakland, CA
OPERATING ENGINEERS LOCAL UNION NO. 3 OF THE INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL--CIO, AND INTERNATIONAL LONGSHOREMEN AND
WAREHOUSEMEN'S UNION, AFL--CIO, LOCALS 10, 34, AND 91 and SCHNITZER
INDUSTRIES d/b/a SCHNITZER STEEL PRODUCTS COMPANY, INC. and SHIPYARD
LABORERS, LOCAL 886, LABORERS INTERNATIONAL UNION OF NORTH AMERICA
Case 32--CD--123
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND DETERMINATION OF DISPUTE
The charge in this Section 10(k) proceeding was filed June 22, 1991,
by the Employer, alleging that the Respondents, International
Longshoremen and Warehousemen's Union, AFL--CIO, Locals 10, 34, and 91
(Local 10, Local 34, Local 91, or ILWU collectively) violated Section
8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed
activity with an object of forcing the Employer to assign certain work
to employees they represent rather than to employees represented by
Shipyard Laborers, Local 886, Laborers International Union of North
America (Local 886), and that the Respondent, Operating Engineers Local
Union No. 3 of the International Union of Operating Engineers, AFL--CIO
(Local 3), violated Section 8(b)(4)(D) of the Act by engaging in
proscribed activity with an object of forcing the Employer to assign
certain work to employees it represents rather than to employees
represented by the ILWU. The hearing was held August 16, 1990, December
14, 1990, and January 23, 1991, before Hearing Officers Louise Houston
and Clark Finkbinder.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board affirms the hearing officers' rulings, finding them free
from prejudicial error. On the entire record, the Board makes the
following findings.
I. Jurisdiction
The Company, an Oregon corporation, is engaged in the business of
scrap metal processing, recycling, and sale for export of scrap metal at
its facility in Oakland, California, where it annually receives revenues
in excess of $50,000 directly from business located outside the State of
California. We find that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
The record shows, and we find, that Local 10, Local 3, and Local 886
are labor organizations within the meaning of Section 2(5) of the Act.
The parties present at the hearing agreed that Local 91 represents only
supervisors. We find, based on the record, that Local 91 is not a labor
organization. The Employer asserted that Local 34 only represents
supervisors. The ILWU representative did not endorse the Employer's
assertion, but the ILWU introduced no evidence concerning Local 34's
labor organization status. Because the record lacks any evidence
establishing the labor organization status of Local 34, we are unable to
find that Local 34 is a labor organization within the meaning of the
Act.
II. The Dispute
A. Background and Facts of Dispute
The Employer processes, recycles, and exports scrap metal at a
dockside facility in Oakland, California. The Employer loads and unloads
ships at the dock. The loading operation consists of tying up and
letting go of ships (also called line work) and operating a crane. In
August 1990, the Employer began operating a newly constructed
shiploading facility, using a dockside crane to load scrap metal onto
ships. Prior to the installation of the new crane, the Employer used a
barge-based crane to load the ships.
Before commencing operation of the dockside crane, the Employer
contacted the attorney representing the ILWU locals on two occasions to
discuss work assignments related to the new operation. In April 1990,
the Employer stated that laborers should continue doing the line work.
On June 13, the ILWU attorney stated that the ILWU local would claim the
tying up, letting go, /1/ and shiploading functions in connection with
the loading of bulk scrap metal onto ocean-going vessels, including
operation of the crane, and the positions of hatchtender, walking boss,
and supercargo. The attorney also stated that they would picket if the
work were awarded to employees represented by another Union. The
Employer notified Local 3 of the ILWU's position. Local 3 responded
that it would picket if the work of operating the dockside crane were
awarded to employees represented by another Union.
On June 22, 1990, the Employer filed the instant unfair labor
practice charge against the ILWU and Local 3 and a unit clarification
petition pertaining to hatchtenders, supercargoes, and walking bosses.
/2/ The Regional Director has held the unit clarification proceeding in
abeyance pending the outcome of this 10(k) proceeding.
During the hearing, the attorney representing Local 886 stated that
Local 886 would picket if the line work were assigned to the employees
represented by the ILWU locals. Subsequently, Local 886 sent a letter to
the Regional Director disclaiming the line work. During the hearing, the
ILWU also sent a letter to the Regional Director disclaiming the work of
operating the new dock crane.
B. Work in Dispute
The disputed work involves the tying up, letting go, and shiploading
functions in connection with the loading of bulk /3/ (as distinguished
from shredded) scrap metal onto ocean-going vessels at the Employer's
Oakland, California facility.
C. Contentions of the Parties
The Employer contends that operation of the new crane should be
awarded to employees represented by Local 3 based on economy and
efficiency, industry practice, and employer preference and past
practice, and that the line work should be awarded to employees
represented by Local 886 based on economy and efficiency, employer
preference and past practice, and industry practice. The Employer
further claims that Local 886's disclaimer is ineffective because the
employees represented by Local 886 have continued to perform the line
work. Finally, the Employer requests that the 10(k) and the unit
clarification proceedings be consolidated and that the Board clarify
that the classifications of hatchtender, supercargo, and walking boss
involved in the loading of ships no longer exist and therefore should
not be included in any work assignment award, or that the Board revoke
the ILWU's certification. /4/
Local 10 asserts that there is no jurisdictional dispute over a
portion of the work in dispute because it has disclaimed interest in the
operation of the new crane. Local 10 also asserts that there is no
jurisdictional dispute over the line work because, although Local 10
continues to claim the work, Local 886 has disclaimed the work. Finally,
Local 10 asserts that there is no jurisdictional dispute over the
hatchtender, supercargo, and walking boss classifications because no
other union has claimed the work.
Local 3 neither filed a brief, nor appeared at the hearing.
Local 886 did not file a brief, and did not make a statement of
position at the hearing.
D. Applicability of the Statute
As discussed above, both Local 886 and Local 10 claimed the work of
tying up and letting go at the Employer's facility. The attorney
representing the ILWU locals stated that the ILWU claimed the work of
tying up and letting go of ships at the Employer's facility, and that if
the work were assigned to another Union, the ILWU would picket. The
attorney representing Local 886 stated at the hearing that Local 886
claimed the work of tying up and letting go of the ships at the
Employer's facility, and that if the work were assigned to another
Union, Local 886 would picket. Subsequently, Local 886 sent a letter to
the Regional Director disclaiming the line work. Local 886-represented
employees, however, continue to do the line work without (so far as the
record shows) restraint, discipline, or threats from their Union.
Therefore, we find that Local 886's disclaimer is ineffective. See
Electrical Workers Local 610 (Landau Outdoor Sign Co.), 225 NLRB 320,
321 (1976).
We find reasonable cause to believe that a violation of Section
8(b)(4)(D) has occurred insofar as the line work is concerned and that
there exists no agreed upon method for voluntary adjustment of the
dispute within the meaning of Section 10(k) of the Act. Accordingly, we
find that the dispute involving the line work is properly before the
Board for determination. /5/
As discussed above, the attorney representing the ILWU locals stated
at the hearing that the ILWU disclaims any interest in operating the
dockside crane. There is no evidence that the ILWU has acted in any way
inconsistent with its disclaimer of the work since making the
disclaimer.
We find that the ILWU effectively disclaimed the work of operating
the crane, and that there are currently no competing claims for that
work. See Painters Local 1396 (Wolff & Sons Painting), 246 NLRB 442, 444
(1979). Accordingly, our determination of dispute will be limited to
the line work.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirmative award of
disputed work after considering various factors. NLRB v. Electrical
Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961).
The Board has held that its determination in a jurisdictional dispute is
an act of judgment based on common sense and experience, reached by
balancing the factors involved in a particular case. Machinists Lodge
1743 (J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the determination of the
dispute.
1. Certification and collective-bargaining agreements
Neither Local 10 nor Local 886 is a certified representative of
Schnitzer Steel's employees. Local 886 has a collective-bargaining
agreement with the Employer which arguably covers the line work. Local
10 asserts that it, too, has a collective-bargaining agreement with the
Employer which arguably covers the line work. /6/ We find that this
factor favors neither group of employees.
2. Employer preference
The Employer prefers that the line work be awarded to employees
represented by Local 886. Therefore, we find that the factor of employer
preference favors an award to the employees represented by Local 886.
3. Past practice
The Employer claims that Local 886-represented employees have been
performing the line work for approximately 20 years. However, Local 10
claims that employees it represents have been performing the work. We
find the record concerning the Employer's past practice ambiguous and
therefore do not rely on this factor.
4. Area practice
There are two other employers in the area with operations comparable
to the Employer's. At one employer's facility, the line work is
performed by Local 3-represented employees, and at the other, the work
is performed by Teamsters-represented employees. This factor does not
favor an award of the line work to either group of employees.
4. Relative skills
The Employer claims that because the employees represented by Local
886 have been performing the line work for over 20 years, they have
greater relative skill. However, Local lO also claims that employees it
represents have been performing the work. We find the record
inconclusive and do not rely on this factor.
5. Economy and efficiency of operations
The Employer employs approximately 70 employees
represented by Local 886, who perform various maintenance duties in the
yard. The line work takes approximately 30--60 minutes to perform. The
Local 886-represented employees can leave their maintenance duties to
perform the line work and return to their other duties when the line
work is finished. While a ship is in the dock, the Local 886-represented
employees' shifts can be expanded from 8 to 12 hours and there can be
back-to-back shifts.
The Local 10-represented workers are not regular employees. The ILWU
master agreement provides for an 8 a.m. to 5 p.m. workday with a second
shift beginning at 7 p.m. The agreement also requires that
ILWU-represented employees be paid for a minimum of several hours.
We conclude that it is more efficient for the Employer to use Local
886-represented employees. They are available throughout the day and
night shifts continuously and are available to do other work before and
after the work in dispute is completed. We find that this factor favors
an award of the work to the employees represented by Local 886.
Conclusions
After considering all the relevant factors, we conclude that
employees represented by Local 886 are entitled to perform the disputed
tying up and letting go work. We reach this conclusion relying on the
factors of employer preference and economy and efficiency of operations.
In making this determination, we are awarding the work to employees
represented by Local 886, not to that Union or its members. The
determination is limited to the controversy that gave rise to this
proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the following Determination
of Dispute.
1. Employees of Schnitzer Industries d/b/a Schnitzer Steel Products
Company, Inc. represented by Shipyard Laborers, Local 886, Laborers
International Union of North America are entitled to perform the work of
tying up and letting go of ships at the Oakland, California dockside
facility.
2. International Longshoremen and Warehousemen's Union, AFL--CIO,
Local 10 is not entitled by means proscribed by Section 8(b)(4)(D) of
the Act to force the Employer to assign the disputed work to employees
represented by it.
3. Within 10 days from this date, International Longshoremen and
Warehousemen's Union, AFL--CIO, Local 10 shall notify the Regional
Director for Region 32 in writing whether it will refrain from forcing
the Employer, by means proscribed by Section 8(b)(4)(D), to assign the
disputed work in a manner inconsistent with the determination.
Dated, Washington, D.C. May 20, 1991
James M. Stephens, Chairman
Mary Miller Cracraft, Member
Clifford R. Oviatt, Jr., Member
NATIONAL LABOR RELATIONS BOARD
'Footnotes to the Decision'
/1/ The Employer claims that employees represented by Local 886 have
been performing the line work for approximately 20 years.
/2/ The record shows that during the period in which the cargo
loading process was performed using the barge-based crane, the
hatchtender was responsible for giving directions by hand signal to the
crane operator and also acted as safety man; the supercargo performed
paperwork relative to the cargo loading; and the walking boss oversaw
the loading operations. Upon installation and use of the dockside crane,
the Employer eliminated these positions, all previously performed by
ILWU members. It asserts that because of the unique construction of the
new crane and other procedures now used, these positions are no longer
necessary.
/3/ The record shows that the disputed shiploading functions involve
work related to the operation of the new crane.
/4/ We deny the request to consolidate on the grounds that the
Regional Director acted within his discretion in deciding to hold the
unit clarification proceeding in abeyance pending resolution of this
case.
We also deny the motion to revoke the ILWU's certification as
inappropriate in a 10(k) proceeding.
/5/ We note that although Local 10 made its threat to picket before
the Employer actually began using the new shiploading facility with
dockside crane, the Employer at that time had already made a specific
assignment of the line work. The Board has held that jurisdictional
disputes regarding prospective work assignments are appropriate for the
Board's consideration in 10(k) proceedings. See Stage Employees IATSE
Local 659 (King Broadcasting Co.), 216 NLRB 860, 862 (1975).
/6/ The Employer does not admit that it is a party to the ILWU
contract in the record, but the Employer concedes that it has an
understanding with the ILWU covering the line work.
303 NLRB No. 4
D--2004
Neptune, NJ
KING MANOR CARE CENTER AND HEALTHCARE SERVICES GROUP, INC. Joint
Employers and 1115 NURSING HOME AND HOSPITAL EMPLOYEES UNION, A DIVISION
OF 1115 JOINT BOARD Petitioner
Case 22--RC--9913
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION DENYING MOTION FOR RECONSIDERATION
By Order dated August 24, 1990, the Board denied the Joint Employers'
and Intervenor Local 6, International Union of Industrial, Service,
Transport and Health Employees' requests for review of the Regional
Director's Supplemental Decision and Direction of Election. /1/ On
September 7, 1990, the Joint Employers filed a motion for
reconsideration. We deny the motion for reconsideration on the ground
that it is lacking in merit. /2/
Dated, Washington, D.C. May 22, 1991
James M. Stephens, Chairman
Clifford R. Oviatt, Jr., Member
John N Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
MEMBER CRACRAFT, dissenting.
In accord with my dissent in Rollins Transportation System, 296 NLRB
No. 108 (Sept. 28, 1989), I would grant the Joint Employers' motion.
Dated, Washington, D.C. May 22, 1991
Mary Miller Cracraft, Member
NATIONAL LABOR RELATIONS BOARD
MEMBER DEVANEY, dissenting.
I disagree with my colleagues' denial of the Joint Employers' motion
for reconsideration as lacking in merit. Consistent with Member
Cracraft's dissenting opinion in Rollins Transportation System, 296 NLRB
No. 108 (Sept. 28, 1989), I believe that the recognition agreements
between the Joint Employers and Intervenor should bar the petition for a
reasonable period of time.
The Intervenor represented to Employer King Manor that it had a
majority on January 20, 1988. /1/ An impartial arbitrator conducted a
card check and ascertained that the Intervenor had 7 cards out of 13
possible unit employees. On that basis, the Intervenor was recognized
by King Manor on January 29.
Intervenor then met with Employer Healthcare after determining that
it employed some individuals at the King Manor facility and demonstrated
its majority with respect to those employees on February 12. Employer
Healthcare confirmed in writing its recognition of the Intervenor as the
majority representative of its employees on February 14. Meanwhile, the
Petitioner had begun organizing the Joint Employers' employees on about
December 8, 1987, and continued its activities through January. On
February 16, the Petitioner filed the instant petition.
In Rollins Transportation, as here, there were overlapping organizing
campaigns, and the employer recognized one union after ascertaining
through the use of a card check conducted by a neutral third party that
that union demonstrated it had the support of the majority of the unit.
The Board majority in Rollins held that where there are such
contemporaneous campaigns and an unrecognized union files a petition,
the employer's recognition of the other union is ineffective to bar the
petition even where the employer was unaware of the petitioner's
campaign at the time of recognition. In contrast to the majority here
and in Rollins, I find that the operative event in determining the
existence of a recognition bar should be the filing of the petition, not
the start of the organizing campaign.
Just as the filing of a petition by the unrecognized union is the
operative event for the imposition of strict employer neutrality in
rival union initial organizing campaigns under Bruckner Nursing Home,
262 NLRB 955 (1982), the same principle should apply in deciding whether
a recognition agreement constitutes a bar. Board policy must be to
encourage the stability of the collective-bargaining process and the
benefits flowing therefrom. Thus, where an employer in good faith
recognizes a labor organization representing an uncoerced, unassisted
majority before a valid election petition has been filed, I would find a
recognition bar even if, at the time of recognition, a petitioner also
had a card majority. Simply put, if the filing of a petition is the
critical event in deciding whether, in rival union initial organizing
situations, an employer's recognition of a majority labor organization
is unlawful, it is desirable from a policy perspective that this same
operative event should govern whether a lawful recognition should be
accorded bar quality.
Thus, for the reasons fully and fairly stated by Member Cracraft in
Rollins, I find that the Joint Employers' lawful, good-faith recognition
of the Intervenor here resolved any question concerning representation
and barred the Petitioner's rival petition for a reasonable period of
time. Accordingly, I would reverse the Regional Director and dismiss the
petition.
Dated, Washington, D.C.
May 22, 1991
Dennis M. Devaney, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
Petitioner seeks to represent employees employed in the following
bargaining unit:
All full-time and regular part-time service and maintenance
employees, including nurses aides, dietary aides, housekeeping
employees and laundry employees employed by the Employer at its
Neptune, New Jersey facility, excluding recreation aides, office
clerical employees, technical employees, professional employees,
guards, cooks and all other supervisors as defined in the Act.
At the hearing, the Joint Employers and the Intervenor stipulated to
the appropriateness of this unit. Upon reconsideration, particularly
noting the stipulation of the parties, I find that the agreed-upon unit
is appropriate.
The sole issue remaining in this proceeding is the contentions of the
Joint Employers and the Intervenor that the petition should be dismissed
on the basis that there is a recognition bar. Without reciting all the
facts surrounding the Joint Employers recognition of the Intervenor
which are set forth in the original decision in this matter dated
November 17, 1988, the record is clear that the Intervenor was
recognized by King Manor Care Center on January 29, 1988 and by
Healthcare Services Group, Inc. on February 12, 1988. On February 16,
1988, Petitioner filed the instant petition in which the employer was
designated as "King Manor" and the bargaining unit as "all service and
maintenance employees, including aides, orderlies, dietary employees and
housekeeping employees exclud(ing) all office clerical employees,
professional employees, guards and supervisors as defined in the Act."
Petitioner filed an amended petition on September 1, 1988 designating
the employer as "King Manor and Group Health Care Services."
On February 19, 1988 King Manor and the Intervenor entered into a
collective bargaining agreement. The bargaining unit is defined in the
collective bargaining agreement as "all full-time and regular part-time
employees working 60 hours or more (out of the regular, full-time,
80-hour work period), namely: all nursing aides, dietary workers, but
excluding all other employees, clericals, guards, supervisors,
registered nurse, licensed practical nurses, technical and professional
employees, supervisory cooks, instructors, administrative and executive
employees and confidential employees." Subsequently, in a letter to the
Intervenor dated March 25, 1988, Healthcare stated that it "agrees to
the terms of, and adopts, the Agreement dated February 19, 1988 between
your union and King Manor Care Center insofar as that Agreement applies
to housekeeping and laundry employees," and sets forth the wage rates
for housekeeping employees and laundry employees.
It is well-established that an employer's recognition of a union bars
a petition for a reasonable period of time if the employer recognized
the union in good faith, on the basis of a showing that a majority of
the employees employed in the bargaining unit supported the union, and
at a time when only that union was a actively engaged in organizing the
employees employed in the bargaining unit. Josephine Furniture Co.,
Inc., 172 NLRB 404 (1968); Keller Plastics Eastern, Inc., 157 NLRB 583
(1966).
The record reveals that on or about December 8, 1987, Peter Garcia,
an organizer for Petitioner commenced organizing employees employed by
the Joint Employers. He appeared at the facility on a daily basis from
on or about December 8, 1987 through January 1988 in furtherance of his
organizing activities. Garcia testified that he received approximately 9
signed and dated union authorization cards from employees by the end of
January 1988. /1/ Garcia also testified without contradiction that on
the least one occasion in January 1988, he was observed in his
organizing effort by the Joint Employer's Director of Nurses Weaver.
The Board, in determining the efficacy of a recognition agreement in
a situation where more than one labor organization is engaged in
organizing employees, held that the recognition bar applied only when an
employer extended recognition to one labor organization in good faith
based on a previously demonstrated majority and at a time when only that
union was engaged actively in organizing the employees. Sound
Contractors Association, 162 NLRB 364 (1966) (emphasis added). Further,
the Board has held that, where recognition is granted on the same day a
petition is filed by a second union, a question concerning the
employees' choice or representation exists as of the time of
recognition. Thus, no bar is found even if the employer granting
recognition lacks knowledge of the petition or the rival campaign.
Superior Furniture Manufacturing Co., Inc., 167 NLRB 309 (1967).
It is axiomatic, however, that the purpose of, and reasons for, the
election process is to allow employees to exercise freely their right to
determine whether a labor organization will represent them. In dual
campaigns, the possibility of employees who seek representation singing
cards for more than one organization is common, albeit in a Board
election, only one choice can be made. Because the free choice of
employees is paramount, the purposes of the Act herein would not be
served if I ignored the precedents set forth in Sound Contractors and
Superior Furniture, supra.
In Bus Systems, Inc., 297 NLRB No. 24 (1989), the Board affirmed its
decision in Rollins Transportation Systems, Inc., 296 NLRB No. 108
(1989), specifically stating that in Rollins, the Board held that when
there are simultaneous campaigns and the unrecognized union files a
petition, the recognition is ineffective as a bar and an election is
required. The Board found that the principles set forth in Bruckner
Nursing Home, 262 NLRB 955 (1982) are inapplicable in the representation
context. The Board concluded that in the representation context as
opposed to a situation in which unfair labor practice charges are filed
against an employer, the emphasis should not be on whether the employer
acts lawfully, but on whether the employees can freely choose a
collective bargaining representative.
The evidence in the present case sufficiently establishes that the
Petitioner was actively involved in organizing employees at the
Employer's facility from the beginning of December, 1987 through
January, 1988 prior to the time that the Joint-Employers recognized the
Intervenor. In these circumstances, the employees should now be
entitled to exercise their free choice and I find that there is no bar
to the conduct of an election.
'Footnotes to the Decision'
/1/ Review was denied as there was a lack of majority to grant
review. Chairman Stephens and Member Oviatt would deny review. Members
Cracraft and Devaney would grant review. Member Raudabaugh was not a
member of the Board at the time of the Order.
/2/ In light of our dissenting colleagues' opinions, we have attached
the relevant portions of the Regional Director's supplemental decision.
Member Raudabaugh agrees that the recognition of Intervenor would not
bar the Petitioner's petition. Member Raudabaugh notes that both Unions
were actively organizing at the time of the recognition. He also notes
that Petitioner's petition was filed only 4 days after Employer
Healthcare extended recognition to the Intervenor. Member Raudabaugh
does not pass on whether the same result would be reached in a case
where a longer period elapses between recognition and petition.
'Footnotes for the Dissent'
/1/ All dates are in 1988 unless otherwise indicated.
'Footnotes to the Appendix'
/1/ I am administratively satisfied that Petitioner obtained
authorization cards from employees which pre-date the recognition of the
Intervenor.
303 NLRB No. 3
E. T. MARSHALL & ASSOCIATES, INC. AND 409 EDGECOMBE AVENUE TENANTS
ASSOCIATION and FRED HUDSON, an Individual
Case 2-CA-23725
D-2003
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER
On September 18, 1990, Administrative Law Judge Raymond P. Green
issued the attached decision. The General Counsel filed exceptions and
a supporting 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 brief and has decided to affirm the judge's rulings,
findings, /1/ and conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law judge is adopted and
the complaint is dismissed.
Dated, Washington, D.C. May 20, 1991
Mary Miller Cracraft, Member
Dennis M. Devaney, Member
Clifford R. Oviatt, Jr., Member
NATIONAL LABOR RELATIONS BOARD
(SEAL)
FOOTNOTES TO THE DECISION
/1/ The General Counsel has excepted to some of the judge's
credibility findings. The Board's established policy is not to overrule
an administrative law judge's credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us 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.
JD(NY)-93-90
New York, New York
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
E.T. MARSHALL & ASSOCIATES, INC. AND 409 EDGECOMBE AVENUE TENANTS
ASSOCIATION and FRED HUDSON, An Individual
Case No. 2-CA-23725
Rhonda Gottlieb Esq., and James G. Paulson Esq., Counsel for the
General Counsel.
Clifton, Budd & DeMaria by Kevin J. McGill Esq., Counsel for the
Respondent.
DECISION
Statement of the Case
Raymond P. Green Administrative Law Judge. This case was tried in
New York, New York in February and April, 1990. The charge was filed on
July 11, 1989 and the complaint was issued on August 18, 1989. In
substance, the complaint alleges that the housing company and its
managing agent, after the lawful discharge of Fred Hudson, refused to
reinstate him to his former job because he joined or supported Local
32B-32J, Service Employees International Union, AFL-CIO and because he
engaged in other concerted activities.
On the entire record, including my observation of the demeanor of the
witnesses, and after considering the briefs filed, I make the following
Findings of Fact
I. Jurisdiction
The Respondents admit and I find that they are each employers engaged
in commerce within the meaning of Section 2(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. The Respondents do not admit however that they are
joint employers.
II. Alleged Unfair Labor Practices
409 Edgecombe Ave. is an apartment building in Harlem. It has a
Board of Managers and a tenants association. For many years it has had
a collective bargaining relationship with the Union and it executed the
Apartment House Agreements in 1982 and 1985 with respect to the service
and maintenance employees. The most recent contract expired in 1988 and
no new contract was executed. Although it is not entirely clear why the
Union and the building did not make a new contract, it appears that the
building, because of its financial condition, was unable to meet the
Union's demands for a new contract and the Union did not press the
matter. In any event, it seems that as of the time of the events in
this case, the Union was recognized by the company as the representative
of the employees and that apart from arrearages in benefit payments,
other aspects of the expired contract were maintained in force and
effect.
Fred Hudson who is a tenant of the building, was employed since 1984
in the job classification of doorman/porter. His job duties entailed
the normal responsibilities of a doorman and he also was responsible for
cleaning the doors and glass in the lobby. He joined the Union in 1986
and his position was encompassed by the union contract.
The record indicates that prior to 1986 the building employed 4
doormen including Hudson who worked at different times during the week.
However, in or about 1986 and apparently after the retirement of 2 of
the doormen, the building engaged a guard service company to furnish
guards to cover the door at those times that the remaining 2 doormen
were not on duty. While it appears that the Union made some protest
about this contracting out, the fact is that as of February and March of
1989, the building utilized 2 of its own employees to man the doors and
a guard service to man the doors at other times. The utilization of a
guard service was instituted because of the buildings location.
In January 1989 the building retained the services of E.T. Marshall
Associates to manage the building. The responsibilities of that company
(headed up by Edward T. Marshall), was to take care of the day to day
operations of the building and entailed the supervision of the
building's employees. His contract, similar to other management
contracts in the industry, stated that he was to assist the building in
the hiring and discharging of employees. Also, Mr. Marshall was
delegated the authority to act on behalf of the building in its dealings
with the Union, both in terms of negotiating a contract and in
administering the terms of any agreement. (In the latter respect,
Marshall in February 1989 appeared on behalf of the building in an
arbitration case involving another employee). It is noted that Marshall
had previously been employed by the Union as a representative and
therefore had considerable experience in labor relations matters.
On February 16, 1989 Mr. Hudson was discharged because he took down a
sign in the lobby after he had been warned not to do so. His actions
were clearly insubordinate to the managing agent's representative,
Beverly Stephens. Immediately after Hudson's discharge, E.T. Marshall
arranged for the Security Service to replace Hudson with a guard.
However, when the guard showed up for work on his first two nights of
duty, Hudson told him to leave and he did.
As noted above, the General Counsel concedes that the discharge of
Mr. Hudson on February 16 was for cause of was not in any way
discriminatory under the Act.
On February 28, 1989 the building's board of managers conducted their
regular monthly meeting. At this meeting, Mrs. Hudson, who is the
Board's secretary raised the issue of her husband's discharge and this
generated a considerable amount of discussion. /1/ The tape recordings
of this meeting, were audible but involved a great deal of heated cross
talk. The following points emerged from my listening:
1. Everyone thought that Hudson misbehaved and should be punished in
some way.
2. Mr. McLean and some others expressed the opinion that Hudson's
discharge should be reduced to a suspension.
3. Some felt that the discharge should be sustained.
4. Some expressed the opinion that as a matter of principle, no
tenants should be employed by the building; that such employment led to
conflicts of interest and prevented management from treating them
impartially.
5. Some, particularly Mr. Tillman, expressed the opinion that
irrespective of the merits, the Board should not second guess the
managing agent who was hired to take care of such matters.
6. Ms. Stephens, an employee of E.T. Marshall, told the Board that
Mr. Marshall was confident that if the Union sought to arbitrate
Hudson's discharge, the Union would lose.
7. Mr. Tillman, who in his regular job was a shop steward, expressed
the opinion that Mr. Hudson did not have a leg to stand on if his case
went to arbitration.
8. At least one person expressed the opinion that there were
problems with all of the maintenance staff and that the Board should let
Hudson's discharge stand as an example to the others.
Midway through the meeting, Mrs. Hudson had to leave and the quality
of the tape recording became so poor that the second tape of this
meeting, (GC Exh 3B) was barely understandable. Nevertheless, the tape
reveals that at some point a vote was taken and by a 5 to 2 margin, the
Board of Managers voted to revoke the discharge of Hudson and to suspend
him instead. (There was however, no decision as to how long the
suspension was to last).
The February 28 tape recording also shows that after the vote and
toward the end of the meeting, Ms. Stephen brought up for discussion the
building's relationship with the Union. She said that the Union was
complaining about the fact that its proposed new contract hadn't been
signed. She also related that Mr. Marshall, in a discussion with the
Union, had indicated that he wanted to do away with the position of
doorman/porter because that was a security position which didn't require
union employees. Additionally, the tape reveals that Ms Stephens asked
the Board if they were interested in getting rid of some of the union
salaries, whereupon a few of the Board members expressed the opinion
that they would be better off if there was no union at the building at
all.
In early March 1989 Mr. Marshall, at an arbitration hearing involving
another of the building's employees, was told by a union agent that he
heard that the Board had overruled Marshall's decision to discharge Mr.
Hudson and that the Union therefore didn't have to do anything to get
Hudson his job back.
On March 14, 1989 the Board of Managers had another meeting which was
recorded and memorialized as GC Exhibits 5A and 5B. At this meeting Mr.
Marshall objected to the Board's previous action in overruling his
decision to discharge Hudson without consulting him. He also objected
to the fact that the Board's action had been leaked to the Union.
Marshall pointed out to the Board that it should set policy but that the
managing agent should run the day to day operations. Marshall stated
that if the Board reverses his decisions this undermines his authority
to manage the building and that if the Board doesn't give him authority
to supervise the staff, he would have to review his position as managing
agent. (ie a veiled threat to quit).
When one of the Board members asked about the situation with the
Union, Marshall responded that they had operated for a year and a half
without a contract and that the Board should look at its options. He
thereupon listed the options as either refusing to recognize the Union
which would probably cause a strike, or asking the Union for a contract
with special consideration for the building's financial situation.
Marshall told the Board that they should decide what they wanted to do
as soon as possible so that the attorney could be advised. He also told
the Board that in a pending grievance regarding the building's use of
the security service, he felt that they were on solid ground because the
Union was not allowed to represent guards under the National Labor
Relations Act.
One of the Board members, returning to the subject of Mr. Hudson,
stated that they decided to revoke the discharge because it was felt
that discharge was too harsh a penalty; that Hudson was a neighbor and
that the Board did not feel that its decision undermined Marshall's
authority. Marshall responded that this was a business not a political
club; that when the Board reverses his decisions without first
consulting him and then leaks it to the Union, it becomes impossible for
him to deal with the Union on grievances in a business like manner. He
stated that in such circumstances the Union feels that it doesn't have
to do anything because it has allies on the Board. Marshall stated that
he can't have a referendum on every personnel action and that if the
Board members want to make these kinds of decisions they should not hire
a managing agent. He recommended that the Board should honor the
original decision to discharge Hudson, but that he, (Marshall), would
try to find Hudson another job.
When one of the Board members asked Marshall if there a possible
compromise position, Marshall stated that he had intended anyway to
recommend that the night doorman position be changed to a security guard
job because that is when the building was most vulnerable. He stated
that the Board's action would undermine his position and make him a
nonentity in negotiations with the Union because the Union could rightly
feel that they could bypass him. Marshall said that they needed law and
order; that they can't have employees saying that they will not follow
orders and can't be disciplined because they have allies on the Board.
Marshall reiterated that he would try to get Hudson another job.
Before leaving, Marshall told the Board that they had to make a
decision as to whether to recognize the Union. When pressed for his
opinion, he said that he would recommend that they not recognize the
Union because they can't afford to pay the benefits and the worst the
Union could do was to strike the building. Marshall stated that even
though the building superintendent, (Felix Dookie), was a union member
who probably would strike, an argument could be made that the
superintendent was a supervisor and should be out of the bargaining
unit. Marshall also said that in the event of a strike, they could
operate with replacements for the other maintenance staff.
After Marshall was asked to leave, the Board members continued to
discuss the situation with the tape recorder on. Again there was a good
deal of disagreement with the following points made.
1. There was speculation as to whether Marshall would really quit if
the Board did not reverse its decision on Hudson.
2. Ms Callendar reiterated her position that tenants should not be
employed because of the conflict of interest.
3. There was discussion as to whether the Board's decision to revoke
Hudson's discharge was a violation of the contract between the building
and E.T. Marshall.
4. There was discussion as to whether Hudson's actions deserved
suspension or discharge.
5. There was discussion as to whether the building could afford
union benefits and whether they should cease recognizing the Union.
Some were in favor of getting rid of the Union.
Toward the end of the March 14 meeting, the February 28 minutes
(prepared by Mrs. Hudson), were adopted with modification. At the
conclusion of the meeting, it was decided that there should be a special
meeting on March 20, 1989. After much debate, nothing was decided at
the March 14 meeting with respect to either Hudson, Marshall or the
Union.
Another meeting was held and taped on March 20, 1989. At the
beginning of the meeting Marshall said that he wanted to know the
Board's position regarding his authority under his contract. He told
the Board that if they wanted to hire, fire and supervise employees then
that was OK with him but that he wanted his contract amended so that
they would take responsibility for such actions. /2/ For the benefit of
a Board member who was not present at the March 14 meeting, Marshall
reiterated the history of the situation, indicating that Hudson had been
fired for insubordination; that the Board had overruled his decision
and that he, (Marshall), found out about the Board's action from the
Union when he was at an arbitration hearing. Marshall stated that the
Board's action undermined his authority vis a vis the Union in
arbitrations; that the Board should not take contrary positions when he
is dealing with the Union, and that this was no way to run a business.
Mrs Hudson stated that a discharge decision should not have been
taken without prior clearance by the Board, and there was discussion
again about the relationship between the managing agent and the Board
with respect to such decisions. In this respect, one Board member
stated that it was not proper for the Board to be involved in hiring and
discharge decisions which should be left to the managing agent. On the
other hand, another member stated that the managing agent's contract
only said that he was to assist the Board in such matters.
Mr. Hudson who attended the meeting, explained his position and
recounted, from his perspective, the events leading up to his discharge.
He admitted that he was wrong, but asserted that the punishment did not
fit the crime.
At one point, Marshall said that the Union was the proper authority
to represent Hudson and that Hudson should not go to the Board to
reverse the managing agent's decision.
Marshall told the Board that under his license he was responsible for
the actions of employees. He stated that if he can't supervise
employees with the authority to discharge, then he wanted the Board to
hold him harmless. At the conclusion of the meeting, Marshall said that
he would talk privately to Hudson about his situation, but that he can't
tolerate the Union telling him what he (Marshall), must do.
The evidence indicates that after the conclusion of the meeting, (or
at least the taped portion of it), Marshall took Hudson aside and
offered him a job as a handyman. (This would be a higher paying job
than a doorman/porter). However, on March 25, 1989 Hudson told Ronald
Jackson, the on site manager that he would accept the job only if the
hours were from 9 p.m. to 7 a.m. Because such hours are totally
inappropriate for the job of a handyman, Hudson remained unemployed.
/3/
With respect to the March 20 meeting, I note that there was no
discussion about contract negotiations with the Union and there was no
mention of withdrawing union recognition. I also note that no vote was
taken regarding Hudson's discharge or suspension. Although not entirely
clear, it may be that the implicit consensus was that Marshall would
offer Hudson another job as the means of sidestepping the fundamental
issue which revolved around the relationship of E.T. Marshall to the
building and their respective authority regarding the supervision of
employees.
In September 1989, after negotiations failed to produce a new
contract, the Union went on strike. (As the General Counsel has not
alleged that the Respondents bargained in bad faith or unlawfully
withdrew recognition, I shall assume that the Union was continuously
recognized and that the bargaining was in good faith).
On September 25, 1989 Marshall wrote to Mr. Hudson as follows:
We have been instructed by the 409 Edgecombe Housing Corp. to
unconditionally offer your Doorman/Porter position back. Please
contact Mr. Ronald Jackson at 491-5920, in order to arrange your
return to employment.
Please respond to this offer on or before Oct. 9, 1989.
If you have any questions regarding this unconditional offer of
reinstatement please contact the undersigned.
On October 4 Hudson replied:
This letter is in response to your letter of September 26, 1989.
I will accept your unconditional offer to reinstate me to my job
as Doorman/Porter; however, I'm withholding my services due to
the current strike. I will return to work as soon as the strike
is over.
On January 30, 1990 Hudson unconditionally offered to return to work
and he was rehired in early February 1990.
III. Discussion
The evidence establishes and the General Counsel concedes that the
original discharge of Mr. Hudson was a lawful response to what clearly
was his insubordinate refusal to follow the orders of his superiors.
She argues however, that both the building's Board of Managers and the
Managing Agent violated the Act when, after the Board of Managers
displayed a degree of generosity in revoking Hudson's discharge, they
and E.T. Marshall failed to reinstate Hudson for anti-union reasons.
/4/ As set forth in her Brief, the General Counsel asserts:
(B)eginning on February 28, 1989, the Association voted to convert
Hudson's discharge to a suspension. However, this action was
never implemented because the Association and E.T. Marshall
engaged in discussions with the intent to eliminate the Union as
the employees bargaining representative and/or rid the facility of
union personnel. Counsel for the General Counsel further contends
that as a result of these discussions, the Associatio resolved to
uphold the February 16, 1989 discharge of Hudson by E.T. Marshall,
as opposed to merely suspending him. Thus, the decision to
discharge Hudson was motivated by anti-union considerations and is
unlawful . . .
It is my opinion that after February 28, 1989 the Board of Managers
literally did not decide anything. While there was a great deal of
discussion at the Board meetings on March 14 and 20, the fact is that no
votes were taken and no real decision was ever reached by the Board.
Rather, the tape recordings show a high degree of disagreement among the
Board's members as to what to do with Hudson. If any action at all was
undertaken it was an implicit decision to shove the problem under the
rug by having Mr. Marshall take Hudson aside and offer him another job.
Moreover, I do not think that this record supports the proposition
that the Respondents' actions, (or inaction), was motivated by a desire
to get rid of the Union or the unionized personnel.
E.T. Marshall was hired by the building to manage its day to day
operations and to supervise its maintenance employees. Included in
Marshall's duties was the responsibility to act as the building's agent
in its contract and grievance dealings with the Union. When Marshall
was retained, the building had no contract with the Union and the last
contract had expired more than a year ago. Although there was some talk
at the Board meetings to the effect that the building was not
recognizing the Union, this simply meant that the building had no extant
contract with the Union. In fact, the Union continued to enjoy
recognitional status both before and after the events of this case.
The fundamental problem in this case was that the Board, having
contracted with Marshall to manage the building, nevertheless reversed
his decision to discharge Hudson without first consulting him. What's
worse, that decision was leaked to the Union and Marshall discovered
that the Union knew of the Board's action when he was at an arbitration
hearing to represent the building in some other case. When the union
agent indicated that he didn't have to do anything regarding Hudson's
discharge because the Board had already revoked the decision, Marshall
understandably became upset as he realized that the Board's action, if
allowed to stand, would undercut his ability not only to deal with the
Union in contract and grievance matters, but also would undermine his
authority to supervise the employees. The issue from Marshall's point
of view was whether his authority to act as the managing agent was being
undermined by the Board which had hired him to perform the functions of
a managing agent. Thus, Marshall rightfully perceived that his ability
to supervise the employees and his ability to negotiate with the Union
would be seriously compromised if employees or union agents could simply
bypass him and go directly to the Board. To me this represents a
legitimate business concern and does not indicate any anti-union animus.
In my opinion the evidence indicates that the primary and
overwhelming concern of Marshall and the Board was not the Union as
such. On the contrary, the focus of the discussions was the nature and
scope of the authority delegated by the Board to E.T. Marshall and the
extent to which the Board's decision of February 28 undermined
Marshall's authority. The evidence also shows that the Board's members
were deeply divided over this issue and it appears that the issue was
never finally decided. While there was some talk by some of the Board
members and by Marshall about whether or not the building should
withdraw recognition from the Union, I do not feel that the Board
intended to use Hudson's reinstatement as a means or lever to gain an
unfair advantage over the Union in any upcoming negotiations.
In conclusion I do not think that the evidence supports the General
Counsel's theory. On the contrary, the evidence indicates that Hudson
was discharged for cause; that the subsequent discussion regarding his
discharge focused not on the Union but rather on the relationship and
division of authority between the building and the managing agent; and
that when no resolution could be reached, Marshall offered and Hudson
rejected a job as a handyman. As I conclude that the Board and Marshall
did not take or fail to take any actions motivated by anti-union
considerations, I shall recommend that the Complaint be dismissed in its
entirety.
On these findings of fact and conclusions of law and on the entire
record, I issue the following recommended /5/
ORDER
The complaint is dismissed.
Dated, Washington, D.C. September 18, 1990.
Raymond P. Green
Administrative Law Judge
FOOTNOTES TO THE DECISION
/1/ I received into evidence the original tape recordings of the
Board meetings held on February 28, March 14 and March 20. These
recordings were made during the meetings, generally by Mrs Hudson, whose
duties included operating a portable tape recorder and making the
minutes from the tapes. In reviewing this record I have relied on the
original tapes only and only to the extent that they were audible to me.
In this respect, although the handling of these tapes and duplicate
copies of the tapes before and at the trial left a lot to be desired, I
did set aside one day of hearing so that all parties could listen to the
original tape recordings. The Respondents did not avail themselves of
the opportunity to listen to the original tape recordings.
/2/ E.T. Marshall's contract with the building provides that Marshall
has the responsibility of managing and supervising the maintenance
employees and that he is to assist in the hiring and firing of such
employees.
/3/ I do not credit Hudson's assertion that Marshall told him on
March 20 that he could work any hours he wished. Further, I think that
the major reason that Hudson in effect turned down the handyman job, was
because he wanted to have the afternoons available to play golf.
/4/ Whereas the Complaint literally alleges that Hudson was not
reinstated because of his Union membership or support, this is not
supported by any evidence.
/5/ 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.
303 NLRB No. 2
D--2002
Cheektowaga, NY
KENMORE CONTRACTING CO., INC. AND SLOAN STEEL ERECTORS AND EQUIPMENT
RENTAL, INC. and INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND
ORNAMENTAL IRON WORKERS, LOCAL NO. 6, AFL--CIO
Case 3--CA--11787
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL DECISION AND ORDER
On July 9, 1990, Administrative Law Judge Walter H. Maloney issued
the attached supplemental decision. The General Counsel filed exceptions
and a supporting 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 brief and has decided to affirm the judge's rulings,
findings, and conclusions, as modified, and to adopt his recommended
Order as modified.
The instant proceeding is a backpay proceeding. In the underlying
unfair labor practice proceeding, the Board found that the Respondents
are alter egos and that they violated Section 8(a) (5) and (1) of the
Act by failing or refusing to recognize and bargain collectively with
the Union and to apply the collective-bargaining agreements to which the
Respondent Kenmore was a party, to the employees of the Respondent
Sloan. Kenmore Contracting Co., 289 NLRB 336 (1988) (reconsideration
denied Dec. 23, 1988), enforced in an unpublished opinion (2d Cir. Sept.
5, 1989). The Board's Order, in relevant part, directed that the
Respondents:
Maintain and give full effect to the 1981-1984
collective-bargaining agreement between (the Union) and the
Construction Industry Employers Association, Inc. retroactive to
February 1983, and any amendments and subsequent agreements
covering the unit employees, retroactive to February 26, 1983,
including but not limited to: (1) making whole all unit employees
for any loss of wages and benefits they may have incurred since
February 26, 1983, because of the Respondents' failure to apply or
maintain the established terms and conditions of such agreements;
(and) (2) making required payments to the various trust funds
established by the collective-bargaining agreements.
Thereafter, the Respondents filed a motion for reconsideration with
the Board which raised 8(f) issues. On December 23, 1988, the Board
issued an unpublished decision that denied the Respondents' motion and
left to the compliance stage questions concerning the Respondents' 8(f)
status and whether, under the terms of the underlying Order, the
Respondents were bound to any collective-bargaining agreements other
than the 1981--1984 Construction Industry Employers Association, Inc.
(CIEA) agreement that was in effect when the unfair labor practices
occurred. /1/
In determining the amount of backpay owed to Sloan employees and the
Union's trust funds in the instant proceeding, the judge narrowly
interpreted the Board's underlying Order. Hence, he found that the only
collective-bargaining agreements potentially applicable to the parties
were those between CIEA and the Union and that the only applicable
agreement in fact was the 1981--1984 CIEA-Union agreement because no
successor agreement was ever negotiated by these entities. Further, the
judge construed the terms of the 1981--1984 CIEA agreement as requiring
that contributions to trust funds named be made only on behalf of union
members, and found that no payments to the funds were owed because Sloan
employees were not members of the Union or would not benefit from the
funds.
The General Counsel excepts to the judge's failure to find that in
addition to the 1981--1984 CIEA contract, the Respondents were bound by
an interim working agreement executed by Jacqueline Hanley on behalf of
Kenmore on October 5, 1984, and pursuant to the terms of the interim
agreement by the 1984--1987 collective-bargaining agreement between the
Union and the Building and Erector Employers of Western New York, Inc.
(BEE), an employer association, /2/ from June 1, 1984, through May 31,
1987, and from year to year thereafter. The General Counsel also excepts
to the judge's finding that no contributions to the various funds are
due and owing.
We agree with the judge's finding that the only collective-bargaining
agreement enforceable under the Board's Order is the 1981--1984 CIEA
agreement; however, we do not agree with his rationale for that finding
or with his finding that no contributions are owed to trust funds named
in the agreement.
1. We note that nothing in the underlying Order was intended to limit
enforcement of the Order to CIEA-Union agreements or to determine
definitively the applicability or inapplicability of other
collective-bargaining agreements. Nor do we find in retrospect that the
language of that Order and the order denying reconsideration lends
itself to such a restrictive interpretation. As stated in the decision
on the reconsideration motion, the Board limited its decision to
resolving only the question before it, i.e., the Respondents' alter ego
status and the attendant unfair labor practices. The only agreement in
evidence in the unfair labor practice proceeding was the 1981--1984
CIEA-Union contract. The Board acknowledged the possibility that there
might exist subsequent collective-bargaining agreements that could
govern the wages and other terms and conditions of employment of unit
employees during periods following the expiration of that agreement.
Accordingly, in formulating its order requiring the Respondents to
adhere to all applicable collective-bargaining agreements, the Board, of
necessity, left the identification of such agreements to the compliance
stage.
Nevertheless, as stated above, we agree that the only agreement
enforceable pursuant to the underlying Order is the 1981--1984 CIEA
agreement. In John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. 843 F.2d
770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988), the Board stated
among other things that collective-bargaining agreements permitted by
Section 8(f) shall be enforceable through the mechanisms of Section 8(a)
(5) and Section 8(b) (3) but that on expiration of 8(f) agreements, the
signatory union will enjoy no presumption of majority status, and either
party may repudiate the 8(f) bargaining relationship.
On January 26, 1983, Jacqueline Hanley wrote a letter to CIEA
withdrawing the association's authority to bargain on behalf of Kenmore
and terminating all contracts to which Kenmore was bound by virtue of
its membership in CIEA. The letter stated that a copy was being
forwarded to each of the unions with which CIEA negotiated, and the
Union does not challenge the validity of the actions set forth in the
letter. Although the letter did not also state that Kenmore was
repudiating the 8(f) relationship as well, there were no steps then
taken by Kenmore indicating that it intended to continue a bargaining
relationship with the Union on another contractual basis. To the
contrary, Kenmore's conduct of operating through alter ego Sloan as a
nonunion entity establishes that it intended just the opposite, i.e., to
sever completely its relationship with the Union. Applying the
principles set forth in Deklewa, we thus find that Hanley terminated the
8(f) relationship between Kenmore (and therefore Sloan) and the Union by
her letter of January 26, 1983, and that the termination was effective
on the contract's expiration on May 31, 1984. Accordingly, it is not
the nonexistence of a successor CIEA collective-bargaining agreement
that restricts backpay liability to the 1981--1984 CIEA agreement, as
the judge found, but rather Hanley's termination of the 8(f)
relationship between the Respondents and the Union.
Significantly, there is no evidence that Hanley took action at any
relevant time inconsistent with the repudiation of the 8(f)
relationship, and the Respondents were not party to any other
collective-bargaining agreement at that time on which backpay liability
as an alter ego could be assessed. /3/ We reject the General Counsel's
contentions that Jacqueline Hanley's execution of the interim working
agreement on behalf of Kenmore over 4 months later, on October 5, 1984,
provides any basis for extending the scope of the remedial coverage in
this proceeding. Whatever contractual obligations may have ensued from
Kenmore's execution of the interim working agreement, these obligations
are wholly separate from those stemming from the previously terminated
8(f) bargaining relationship, and thus are not enforceable in this
proceeding. /4/
2. Regarding contributions to trust funds named in the 1981--1984
CIEA agreement, we find that the judge erred in construing the agreement
to require that contributions be made only on behalf of members. In
rationalizing this interpretation of the agreement, the judge relied
solely on capitalized references to "Ironworkers" in that agreement as
support for his finding that this benefit was intended to be accorded
solely to unit employees who were members of the Union. We find that
such a restrictive interpretation is not to be so readily inferred,
particularly in view of precedent clearly establishing the patent
illegality of exclusive bargaining agreement provisions which confer
benefits based solely on an employee's union status. /5/ Accordingly, we
agree with the General Counsel that the use of the term "Ironworker"
throughout the collective-bargaining agreement contemplates all
employees covered by the agreement and not simply union members.
Additionally, we reject the judge's more general reasoning that because
Sloan employees may not benefit from the named trust funds, the payment
of contributions is inappropriate. As is evident from the language in
our original Order quoted above, the Respondents' obligation to provide
the trust fund contributions is not directly conditioned on there being
a certainty that the employees will benefit from these funds. Rather,
the Board's established premise that such employees may have a future
interest in the integrity of these funds is sufficient linkage to
warrant that the trust fund contributions be paid. As restated in Roman
Iron Works, 292 NLRB No. 142, slip op. at 6 En. 15 (Feb. 27, 1989), the
diversion of contributions from union funds may had the funds and
undercut the ability of those funds to provide for future needs. See
also Stone Boat Yard v. NLRB, 715 F.2d 441, 446 (9th Cir. 1983), enfg.
264 NLRB 981 (1982). Therefore, we find that the Respondents are liable
to pay contributions to the trust funds under the terms of the
1981--1984 CIEA agreement for the period ending with the effective
repudiation of the 8(f) relationship, May 31, 1984.
ORDER
The Respondents, Kenmore Contracting Co., Inc. and Sloan Steel
Erectors and Equipment Rental, Inc., Cheektowaga, New York, jointly and
severally, and their agents, officers, successors, and assigns, shall
(1) Pay to the employees named in the judge's recommended Order the
amounts of net backpay set forth opposite their names, with interest as
prescribed in the recommended Order.
(2) Pay to the trust funds named below the amounts opposite the names
of the funds. /6/
Fund Contribution Delinquency Total
Health Care Fund $2,828.19 $282.82 $3,111.01
Pension Fund 3,666.51 366.65 4,033.16
Vacation Fund 2,361.38 236.14 2,597.52
Joint Apprenticeship
Fund 79.09 7.91 87.00
C.I.F. Fund 110.73 11.07 121.80
Dated, Washington, D.C. May 20, 1991
James M. Stephens, Chairman
Mary Miller Cracraft, Member
John N. Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
'Footnotes to the Decision and Order'
/1/ Kenmore was a member of CIEA.
/2/ The Respondents were not members of BEE and did not otherwise
authorize BEE to bargain on their behalf.
/3/ In exceptions, the General Counsel expressly declined to
challenge the judge's finding that international agreements executed by
Kenmore in 1958 and 1980 are not enforceable through this proceeding.
/4/ In this regard, we find that any contractual obligations under
the interim agreement or any such further contractual obligations
stemming from the interim agreement's reference to a subsequent
agreement with BEE, a multiemployer association with no perceptible
relationship with CIEA, present issues which are not integrally related
to the issues raised in the underlying unfair labor practice case. Cf.
NLRB v. Fant Milling Co., 360 U.S. 301 (1959). It is immaterial that the
Union has been a party with the Respondents to both the CIEA and interim
agreements. That fact cannot revive the terminated 8(f) relationship
that existed between the Respondents and the Union by virtue of the CIEA
agreements, because, as noted, once an 8(f) bargaining relationship is
repudiated, the union's bargaining status does not survive beyond the
duration of the 8(f) contract.
/5/ Cf. Prestige Bedding Co., 212 NLRB 690 (1974).
/6/ The 1981--1984 CIEA collective-bargaining agreement provides for
the payment of a 10-percent delinquency fee in the event of late payment
or nonpayment of contributions to the funds. See Merryweather Optical
Co., 240 NLRB 1213 (1979).
SUPPLEMENTAL DECISION
WALTER H. MALONEY, Administrative Law Judge. On June 24, 1988, the
Board issued a decision and order in which it found both Respondents
guilty of a violation of Sections 8(a) (1) and (5) of the Act. This
Order was affirmed by the United States Court of Appeals for the Second
Circuit in an unpublished decision issued on September 5, 1989. The
details of the Board's decision and rationale are set forth in its
decision and need not be repeated here. In summary, the Board found
that the Hanley family - husband, wife, and two adult children - owned,
operated, and controlled both Kenmore Contracting Company, Inc.
(Kenmore), and Sloan Steel Erectors and Equipment Rental, Inc. (Sloan).
Both companies were engaged in the steel erection business and in the
rental of steel erection equipment. Sloan was found to be an alter ego
of Kenmore.
Kenmore was a union company and had a contract with Ironworkers Local
6 as well as other labor organizations in the building trades in Western
New York State. Its contract with Local 6, as well as contracts with
other building trades locals, were negotiated for Kenmore by an employer
association, the Construction Industry Employers Association, Inc.
(CIEA), of which Kenmore was a member. In fact, in 1981, when Kenmore
and Local 6 concluded their last agreement, Hugh P. Hanley, Jr., a
principal in Kenmore, was a member of the CIEA negotiating committee.
Because of changes in the construction industry in Western New York
State, the Hanley family established Sloan to operate as a steel
erection company in the non-union or open shop segment of the building
industry in that locality. The Board found that, by failing to apply to
Sloan's employees the terms and conditions of the 1981-1984 CIEA
contract with Local 6, both Respondents violated the Act. It ordered
both Respondents to "maintain and give full effect to the 1981-1984
collective bargaining agreement between Ironworkers Local No. 6 and the
Construction Industry Employers Association, Inc., retroactively to
February 26, 1983, /1/ and any amendments and subsequent agreements
covering the unit employees, retroactive to February 26, 1983." The
Order went on to provide a make whole remedy, which included "making
required payments to the various trust funds established by the
collective-bargaining agreements."
The record in this phase of the case reflects that the Hanleys,
viewed in the light of their total activities in the steel erection
business, completely left the unionized segment of that business in
1984, with one exception to be discussed later. On January 26, 1983,
Jacqueline C. Hanley, President of Kenmore, wrote a letter to CIEA,
which stated:
Please be advised that Kenmore Contracting Co., Inc., no longer
wishes the Construction Industry Employers Association to
negotiate with any of the respective basic trades on its behalf
for the forthcoming contracts.
A copy of this letter is being forwarded to each of the unions
with whom the association negotiates. Furthermore, this letter
should be considered as the notice of termination under each of
the contracts.
The letter indicated that copies were sent both to Local 6 and to the
other building trades locals with whom CIEA negotiated. Thomas
Michaels, Financial Secretary-Treasurer and Business Agent of Local 6,
admits that his Union received a copy of this letter.
CIEA was composed of more than a hundred general contractors and
subcontractors who utilized union referrals in eight different trades.
Upon the expiration of contracts which ended in 1984, it ceased
negotiating with all of these unions except the Laborers. Since that
time CEIA has had contracts 25 only with Laborers Local 210.
In the Western New York area served by Ironworkers Local 6, there is
another employer association made up exclusively of contractors who
employ ironworker employees. Called the Building and Erector Employers
of Western New York, Inc. (BEE), it is composed of eight members.
However, other so-called independents who wish to secure referrals from
the Local 6 hiring hall are required to adopt the Local 6-BEE contract
and do so by signing the document which the Union and the Association
negotiate. These parties had an agreement, running from 1981 through
1984. It was identical in its terms to the CIEA-Local 6 agreement, at
issue in the complaint portion of this case and referred to in the
above-quoted excerpt from the Board's order. Neither Kenmore nor Sloan
has ever designated BEE as its bargaining representative and the General
Counsel concedes that neither employer was a party to the 1981-1984
Ironworker agreement with BEE.
As noted above, Kenmore went out of the steel erection business and,
with one minuscule exception, has remained out of that business during
the backpay period covered by the Specification. Its business
activities have been confined exclusively to equipment rentals.
Michaels admitted as much, stating that there were no Union referrals to
Kenmore, no trust fund payments by Kenmore, and, to his knowledge, no
Union members employed by either Kenmore or Sloan during the backpay
period. Neither Kenmore nor Sloan ever executed the 1984-87 contract
between BEE and Local 6 nor the agreement concluded by these parties for
the period 1987-90.
Sloan has continued to operate on a non-union basis during this
period of time. The General Counsel seeks to impose backpay liability
upon Sloan, as the alter ego of Kenmore, during that portion of the
backpay period beginning June 1, 1984, on the basis of two agreements
signed by Kenmore with the Ironworkers International in 1958 and 1980,
and on the basis of an interim agreement, signed by Kenmore with Local 6
on October 5, 1984. Kenmore signed the interim agreement in order to
obtain a Local referral on the Tops job, a union job which Kenmore
performed in Western New York State in late 1984 or early 1985. By
virtue of these contractual undertakings by Kenmore, the General Counsel
and The Charging Party seek to tie both Kenmore and Sloan to the ongoing
relationship between BEE and Local 6 and to backpay liability on the
part of Sloan which would continue on even after the immediate matters
involved in this litigation are resolved. The backpay period at issue
herein ceases on December 10, 1989, but, in the view of the Charging
Party and the General Counsel, this is merely a temporary respite
necessitated by the fact that the General Counsel's investigation into
the books of Sloan was suspended as of that date to permit the
preparation and prosecution of the Specification herein. According to
that Specification, as amended, liability to that date for wages for 98
Sloan employees amounts to $455,166.94, payments to eight joint
union-employer trust funds on their behalf amounts to $444,923.39, and
delinquent fees for late payments of trust fund contributions amounts to
$44,492.33. The grand total is $944,582.66, on which interest would be
assessed in accordance with the Board's decision in New Horizons for the
Retarded, 283 NLRB 1173. I regard the contentions of the Charging Party
and the General Counsel regarding any backpay liability after May 31,
1984, to be farfetched and fanciful and their position oppressive,
punitive, and wholly unconscionable.
In addressing the several contentions of the General Counsel, two
observations should be made at the outset. Hanley, who defended both
Respondents pro se at the backpay hearing, said in his opening remarks
that. Sloan, a non-union contractor, does not observe strict craft
lines and that its employees are not all engaged in ironworking. Some
of them perform the functions of carpenters, bricklayers, truck drivers,
and members of other trades. The Board order in the complaint case was
restricted to the CIEA-Local 6 contract which covers only ironworking
and spells out in considerable detail just what that work involves. The
original Specification made no distinctions between the ironworking
performed by Sloan employees named in the Specification and other work
they might perform. At the hearing, the General Counsel amended the
Specification to reduce the backpay liability throughout the entire
period to an amount which is 80% of what was requested in the original
Specification in order to acknowledge the merit of Hanley's contention.
Hanley agreed that this reduction appropriately reflected the amount of
work that Sloan employees did that. would have been covered by the Local
6-CIEA contract, had it been applicable, as distinguished from work
which would be done by members of other trades. The record was kept
open to receive into evidence the Amended Specification. It is received
into evidence and will control and limit this proceeding.
The Board order specifically addressed the Local 6-CIEA contract
which expired May 31, 1984, as that contract was the only one before it
when the complaint portion of this case was litigated. Its order
directed a make whole remedy based on that contract, as well as any
amendments and subsequent agreements covering unit employees. The sums
in question in the Specification relating to amounts due and owing for
wages paid to Sloan employees between the beginning of the 10(b) period
and the expiration of the above-referenced contract. on May 31, 1984,
apply only to 17 Sloan employee who were on it.s payroll at that time.
The aggregate liability for wages alleged in the Amended Complaint for
that period of time is only $25,656.17 (plus interest), a far cry from
the $455,166.94 (plus interest) requested by the General Counsel in the
wage port.ion of the Specification. Liability for these wages is
already firmly established in the Board order, enforced by the Court of
Appeals, and may not be disturbed in this proceeding.
The General Counsel also seeks from the Respondents payments
allegedly due and owing to a total of eight joint employer-union trust
funds referred to in the Local 6-CIEA contract, together with a 10%
penalty established by that contract for late payments. /2/ Trust fund
and penalty payments are sought not only for the initial segment in the
trifurcated backpay period noted above, which is separately set forth in
the Specification, but also for the periods coveted by the 1984-87 and
1987-90 contracts between Local 6 and BEE.
The Board's make whole remedy refers to "making required payments to
the various trust funds established by the collective bargaining
agreements." In addressing this requirement, it is important to note
that the individual Sloan employees named in the Specification, not the
Union or the trustees of the eight trust funds, are the discriminatees
in this case for whom the make whole remedy is designed. The Board
pointed out in its initial decision that the CIEA-Local 6 agreement
prohibits members of Local 6 from working for non-union contractors.
Michaels testified that he knew of no members who had worked for Sloan
during the backpay period, and there is no indication front union
referral or trust fund records that any did. It is quite clear from
this.record that none of the 98 Sloan employees named in the
Specification is a member of Local 6 nor was a member during the backpay
period covered by any portion of the Specification.
Eligibility for benefits under these trust agreements is set forth in
the CIEA-Local 6 agreement. The language used in the contract to define
eligibility differs only slightly from fund to fund. In the clauses
establishing some of the funds, eligibility to participate is conferred
only upon an "Ironworker" (with a capital I), meaning a member of Local
6, or "Ironworker Journeyman and working apprentice." The measure of
employer contributions is normally a fixed sum per hour worked by an
"Ironworker." It is clear that the only persons eligible to receive
benefits from these funds are members of Local 6 (or possibly other
Ironworker locals whose members might be working temporarily in the
jurisdiction of Local 6). It is equally clear that none of the 98
non-members named in the Specification are or would be eligible to
receive any benefits from these funds during the backpay period or at
any other time, unless and until they are admitted to membership in
Local 6.
The make whole statutory scheme established by the Act is exclusively
remedial. The Board may not use its processes to punish anyone. If the
Respondents in this case are required to make payments to the eight
trust funds named in the Specification based upon money assertedly due
and owing to or for Sloan employees, this money will not and cannot be
used for the benefit of any of the 98 non-member employees named in the
Specification because they are ineligible to receive benefits which are
restricted exclusively to Union members. As to them, there is nothing
remedial about a requirement aimed at trust fund payments which will
provide them nothing. As pointed out above, it is they who are the
exclusive beneficiaries of the Specification. Requiring the Respondents
to make trust fund and delinquent penalty payments to the funds here in
question in the amount of several hundred thousand dollars will confer
an enormous and unmerited windfall upon those funds but will in no way
further the remedial purposes and policies of the Act. As to the
Respondents, such Payments can be only burdensome and punitive.
Accordingly, I will not recommend to the Board that the Respondents
herein be required to make any trust fund or delinquent payments for any
of the periods set forth in the Specification.
The General Counsel seeks backpay for Sloan employees for the periods
covered by the two Local 6-BEE contracts from two employers who never
signed or adopted those contracts and who never specifically authorized
BEE to negotiate on their behalf. Any such liability must proceed on
the premise that somehow Kenmore and Sloan, its alter ego, were in
privity of contract with Local 6 so that they were contractually
obligated to pay employees doing iron work whose names are on either of
their payrolls in accordance with the terms and conditions set forth in
Local 6-BEE contracts.
To support this contention, the General Counsel looks first to a
contract entered into by Kenmore back in 1958 with the Ironworkers
International covering work to be performed outside Kenmore's home area.
The contract in question has no termination date. /3/ By entering into
this contract, an employer recognizes the Ironworkers International, not
any affiliated local, as the bargaining agent to carry out the limited
terms and conditions set forth in the contract. It agrees "to abide by
the General Working Rules of this Association (the International) and to
pay the scale of wages, work the schedule of hours and conform to the
conditions of employment in force and effect in the locality in which
the Employer is performing or is to perform work . . . ." A signatory
also "agrees to employ Journeymen in any territory where work is being
performed or is to be performed in accordance with the Referral Plan in
force and effect in the jurisdiction of the Local Union where such work
is being performed or is to be performed."
Michaels explained that this agreement permits an employer, with the
permission of the International, to go into any locality and obtain
referrals from the local Ironworker union, provided the employees
referred are employed under local wages and working conditions, even
though such wages and working conditions might be different from what is
observed in the employer's home area. By following this agreement, a
signatory can avoid actually entering into a contract with an Ironworker
local in another area in which he wants to perform a job. In the
absence of this agreement, an employer working outside his home area
would actually have to execute a contract with the Ironworker local for
the area in which his job was located if he wanted referrals and wanted
to work union.
The General Counsel says that this agreement puts Kenmore and Sloan
in privity with Local 6, so that they are contractually bound to any
contract to which Local 6 is a party. The whole thrust of the agreement
is to accord recognition to the International, not to any area local,
and to avoid the Necessity of becoming a party t.o a local agreement.
If this is true with respect to a local in another area, it is surely
true with respect to a local in an employer's own home area, if, in
fact, the agreement had any relevance to work in an employer's home
area. It manifestly does not.
Moreover, this agreement lies outside the parameters of the Board's
remedial order, which was issued in conjunction with its decision in the
complaint portion of this case. That order directed both Respondents to
maintain and give full effect "to the 1981-1984 collective bargaining
agreement between Iron Workers Local 6 and CIEA . . . and any amendments
and subsequent agreements covering the unit employees . . . ." (Emphasis
supplied.) Necessarily this order refers only to amendments and
subsequent agreements between CIEA and Iron Workers Local 6, not any
subsequent (or earlier) agreement between Kenmore and the Ironworkers
International, because the Local 6-CIEA agreement was the only contract
litigated in that proceeding or mentioned in any way in the decision of
the Board or the administrative law judge who heard that case.
Accordingly, this facet of the General Counsel's argument must fail.
He makes the same argument respecting an agreement between the
National Council of Erectors, Fabricators and Riggers (NCEFR) and the
Ironworkers International, which Kenmore accepted on March 17, 1980.
This contract does not cover all ironworking but is applicable only to
certain phases of the trade, namely remodeling, repair, replacement,
maintenance, and renovation work. Here again the employer signatory to
the agreement recognizes and enters into privity with the Ironworkers
International, not. any specific local, and agrees to abide by local
wages and conditions when working in a particular area. The agreement
is more detailed than the 1958 contract, referred to above, mainly in
that it establishes certain trust funds and obligates employer
signatories to contribute to them. It also is more specific concerning
hours of employment, transportation, shifts, and overtime. This
contract does not incorporate by reference any contract made by Local 6
nor does it require or even suggest that a signatory enter into privity
of contract with Local 6. Moreover, it does not cover all bargaining
unit work embraced in the Local 6-CIEA contract referred to in the
Board's order. Most important, it is not the Local 6-CIEA contract
referred to by the Board in its order, nor is it an amendment thereto.
It is also not a subsequent agreement between those parties. Therefore,
like the 1958 contract between Kenmore and the International, this 1980
agreement falls outside the ambit of the Board's remedial order in this
case and does not serve to extend backpay liability of the Respondent.s
beyond the expiration of the contract set forth in the Board's order.
About six months after the expiration of the Local 6-CIEA contract
and while a contract between Local 6 and another employer organization,
BEE, was being negotiated, Kenmore was in need of a Union ironworker to
man the Tops job. According to testimony from Mrs. Hanley, she met with
George J. Colern, Recording Secretary of Local 6, at a hot dog stand
across the street from the Kenmore office and signed a document entitled
"Interim Working Agreement.." The date of this meeting was established
as October 5, 1984.
The interim agreement provided, in part:
On and after June 1, 1984, we, the undersigned, agree that we
will comply with all wages, fringe benefits and conditions of the
new agreement negotiated by Ironworkers Local No. 6 for all
members and non-members of the Building and Erectors Employers of
Western New York, Inc.
This agreement shall be in force until such time as a successor
agreement is adopted and printed. Upon adoption of the successor
agreement, the union and the employer shall immediately sign and
execute the successor agreement.
On February 13, 1985, Local 6 sent a detailed letter to BEE in which
it detailed the changes to the 1981-84 agreement that had been agreed
upon during the negotiations of the previous ten months. The letter
stated that "the following wages, terms, and conditions shall amend the
1981-1984 contract between (Local 6) and (BEE)." It provided that "the
contract shall remain in effect from June 1, 1984, to May 31, 1987." In
1987, as noted above, a new three-year contract was concluded between
these parties. Neither contract was ever printed in booklet form,
apparently because the employer association did not want to bear the
expense of printing. Kenmore never signed or executed the 1984-87
successor agreement or any other subsequent agreement with Local 6. It
is on the basis of the above-quoted provision that the General Counsel
argues that both Respondents have been and remain in continuous privity
with Local 6 throughout the backpay period and are still in privity with
the Union, so that all non-union employees of Sloan must be compensated
in accordance with all terms and conditions of the Local 6-BEE contracts
as they are negotiated and re-negotiated from time to time.
Giving it the most liberal and expansive interpretation possible, the
interim agreement executed by Mrs. Hanley on October 5, 1984, with Local
6 expired on February 13, 1985, the day on which Local 6 and BEE
concluded their negotiations and entered into a successor agreement to
the 1981-84 agreement covering the ensuing three years. On that date
the interim period contemplated by the interim agreement came to an end
and the contract which was not yet concluded when the interim agreement
was signed then came into effect. The interim agreement may, by its
terms, have obligated Kenmore to sign the 1984-87 successor agreement,
but Kenmore did not do so. Giving the interim agreement a reading most
unfavorable to Kenmore would mean that, by its failure to sign the
1984-87 successor agreement, Kenmore was in breach of the interim
agreement with Local 6. /4/ That default might mean that Kenmore had
breached the interim agreement and that Local 6 was under no further
obligation to refer ironworkers to Kenmore from its hiring hall, but
this was a situation which Kenmore could readily live with since Kenmore
was no longer in the steel erection business and had no further need of
Local 6 referrals. However, such a failure to abide by its undertaking
to execute a new agreement when Local 6 and BEE had come to terms could
not possibly make Kenmore, or its alter ego, a party to that agreement.
When Kenmore failed to sign any more agreements with Local 6, it was no
longer in any kind of contractual privity with Local 6 and was no longer
obligated to abide by the terms and conditions of any agreement which
Local 6 might enter into with any other employer or any other employer
association. Perforce the same holds true with respect to Kenmore's
alter
What was said before with respect to the ambit of the Board's
remedial order to contracts between Kenmore and the International
applies with equal force to contracts entered into between Local 6 and
BEE. The Board order obligates Kenmore and Sloan to give full effect to
"the 1981-1984 collective bargaining agreement between Iron Workers
Local 6 and CIEA . . . and any amendments and subsequent agreements
covering the unit employees . (Emphasis supplied.) However, as stated
above, the latter phrase means any subsequent agreements between Local 6
and CIEA, not subsequent agreements between Local 6 and BEE or some
other employer. Accordingly, so much of the Compliance Specification
which imposes liability on the Respondents for failing to apply the
terms and conditions of the Local 6-BEE contracts to Sloan's non-union
employees on and after June I, 1984, must be dismissed.
Upon the basis of the foregoing findings of fact and conclusions of
law and upon the entire record herein considered as a whole, and
pursuant to Section 10(c) of the Act, I make the following recommended:
/5/
ORDER
Respondents Kenmore Contracting Co., Inc., and Sloan Steel Erectors
and Equipment Rental, Inc., both jointly and severally, and their
successors and assigns, shall pay to their employees the amounts of net
backpay set forth below opposite the names of said employees, with
interest therefor at the rate prescribed in the Tax Reform Act of 1986
for the overpayment and underpayment of income tax, /6/ less withholding
for income taxes for social security required by federal and state laws:
Louis Cooper $ 134.06
Robert W. Cooper 1,030.24
Wilson L. Cooper, Jr. 178.74
Joe DiFrancisco 466.71
Mitchell Duval 2,312.87
Frederick L. Gleave, Jr. 786.96
William E. Hamann 2,285.66
Hugh Hanley, III 1,393.41
Patrick Hanley 151.05
David Isaacs 3,879.70
David B. Jimerson 945.83
Mitchell A. Marciszewski 494.31
Loren A. Mika 238.32
James J. Morgan 248.25
Terry D. Orton 51.44
Douglas Preisch 372.38
Michael E. Schroder 696.24
Dated, Washington, D. C. July 9, 1990
Walter H. Maloney
Administrative Law Judge
'Footnotes to the Decision'
/1/ This date was the beginning of the 10(b) period.
/2/ These trust funds are the Health Care Fund, the Pension Fund, the
Vacation Fund, the Joint Apprenticeship Fund, the Construction Industry
Fund (CIT), an Annuity Escrow Fund, a Guarantee Fund, and another fund
set up to pay supplemental medical benefits.
/3/ The General Counsel notes that this contract was actually invoked
by Kenmore to perform a job on the Bethlehem Steel job but the record is
silent as to where that job was located or when it was performed.
Michaels testified that the job was performed with members of a regular
complement of ironworker employees which Kenmore used when it was still
in the construction business. Since I have credited testimony in the
record that Kenmore did not employ members of Local 6 after May 31,
1984, except on the Tops job, I conclude that the Bethlehem Steel job
was performed sometime before the effective date of the 1984-87 Local
6-BEE contract.
/4/ Michaels testified that he never presented either the 1984-87
agreement or the 1987-90 agreement with BEE to Kenmore for signature.
/5/ 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.
/6/ See New Horizons for the Retarded, supra.
303 NLRB No. 1
D--2001
Maywood, IL
MID-AMERICAN CONCRETE CONSTRUCT ION, INC. and TECHNICAL ENGINEERING
DIVISION LOCAL UNION 130, U.A., AFL--CIO, AFFILIATED WITH UNITED
ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE
FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL--CIO
Case 13--CA--29803
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER
Upon a charge filed by the Union on October 29, 1990, the General
Counsel of the National Labor Relations Board issued a complaint on
February 25, 1991, against Mid-American Concrete Construction, Inc., 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 the complaint, the Respondent has failed to file an answer.
On April 5, 1991, the General Counsel filed a Motion to Transfer
Proceedings to the Board and Motion for Summary Judgment, with exhibits
attached. On April 10, 1991, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause why the Motion for
Summary Judgment 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.
Ruling on Motion for Summary Judgment
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 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
March 20, 1991, notified the Respondent that unless an answer was filed
by March 22, 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
Findings of Fact
I. Jurisdiction
The Respondent, an Illinois corporation with an office and place of
business located in Maywood, Illinois, has been engaged in the business
of concrete construction. During the calendar year ending on December
31, 1990, the Respondent in the course and conduct of its business
operations had gross revenues in excess of $500,000. During the same
12-month period, the Respondent purchased and received at its Maywood,
Illinois facility products, goods and materials valued in excess of
$50,000 directly from points 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.
II. Alleged Unfair Labor Practices
The Respondent and the Union have a collective-bargaining agreement,
effective from June 1, 1990 through May 31, 1991, which applies to the
Respondent's employees performing line and grade work in the following
classifications: layout technician (foreman); layout technician
(journeyman); instrument man; and rodman. This agreement contains
provisions requiring the Respondent to make contributions to various
union fringe benefit funds on behalf of covered employees.
About August 1990, /1/ employee William Albrecht had a conversation
with Mark Manfredi, the Respondent's chief financial officer, at the
Sears construction site located in Hoffman Estates, Illinois. Albrecht
requested that the Respondent comply with the collective-bargaining
agreement by paying all outstanding delinquent contributions to the
fringe benefit funds. About October 19, Albrecht attended a meeting with
the Respondent and the Union which he had previously arranged for the
purpose of discussing the Respondent's fringe benefit fund delinquency.
About October 24, the Respondent discharged and has continuously
failed and refused to reinstate Albrecht. The Respondent engaged in this
conduct because Albrecht requested that it comply with the
collective-bargaining agreement's fringe benefit fund contribution
provisions and/or because of his union activities including, but not
limited to, his having arranged and attended the October 19 meeting to
discuss the Respondent's fringe benefit fund delinquency. Based on the
foregoing, we find that the Respondent discharged Albrecht in violation
of Section 8(a) (3) and (1) of the Act.
Conclusions of Law
By discharging and refusing to reinstate employee William Albrecht
because he engaged in union and 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.
Remedy
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.
Specifically, we shall order the Respondent to offer William Albrecht
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.
We shall also order the Respondent to make Albrecht whole for any loss
of earnings suffered as a result of his discharge on about October 24,
1990. Backpay shall be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest to be computed as
prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Finally, we shall order the Respondent to remove from its files any
reference to Albrecht's unlawful discharge and to notify him in writing
that this has been done and that the discharge will not be used against
him in any way. Sterling Sugars, Inc., 261 NLRB 472 (1982).
ORDER
The National Labor Relations Board orders that the Respondent,
Mid-American Concrete Construction, Inc., Maywood, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they seek to enforce the terms of a
collective-bargaining agreement or engage in union activities on behalf
of Technical Engineering Division Local Union 130, U.A., AFL--CIO,
affiliated with United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada,
AFL--CIO, or any other labor organization.
(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) Offer William Albrecht 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 suffered as a result of the
discrimination against him, in the manner set forth in the remedy
section of the decision.
(b) Remove from its files any reference to the unlawful discharge of
William Albrecht and notify him 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 its facility in Maywood, Illinois, copies of the attached
notice marked "Appendix." /2/ Copies of the notice, on forms provided by
the Regional Director for Region 13, 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 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. May 20, 1991
James M. Stephens, Chairman
Dennis M. Devaney, Member
John N. Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the
National Labor Relations Act and has order us 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.
WE WILL NOT discharge employees because they seek to enforce the
terms of a collective-bargaining agreement or engage in union activities
on behalf of Technical Engineering Division Local Union 130, U.A.,
AFL--CIO, affiliated with United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL--CIO, or any other labor organization.
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 offer William Albrecht 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 WE WILL make him whole for
any loss of earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL notify William Albrecht that we have removed from our files
any reference to his discharge and that the discharge will not be used
against him in any way.
MID-AMERICAN CONCRETE
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, 200 West Adams Street,
Suite 800, Chicago, Illinois 60606-5208, Telephone 312--353--7597.
'Footnotes for the Decision and Order'
/1/ All dates are in 1990, unless otherwise indicated.
/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."
302 NLRB No. 169
D--1900
Lawrenceville, IL
INTERNATIONAL UNION OF ELECTRONIC, ELECTRICAL, SALARIED, MACHINE AND
FURNITURE WORKERS, AFL--CIO AND ITS LOCAL 825 and CENTRAL INDUSTRIES,
INC.
Cases 14--CB--7118, 14--CB--7213, 14--CB--7214
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER
Statement of the Cases
On July 25, 1990, International Union of Electronic, Electrical,
Salaried, Machine and Furniture Workers, AFL--CIO and its Local 825,
(collectively the Respondent), and the General Counsel of the National
Labor Relations Board entered into a settlement stipulation, subject to
the Board's approval, providing for the entry of a consent order by the
Board and a consent judgment by any appropriate United States court of
appeals. The parties waived all further and other proceedings before the
Board to which they may be entitled under the National Labor Relations
Act and the Board's Rules and Regulations, and Respondent waived its
right to contest the entry of a consent judgment or to receive further
notice of the application therefor.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The settlement stipulation is approved and made a part of the record,
and the proceeding is transferred to and continued before the Board 'in
Washington', D.C., for the entry of a Decision and Order pursuant to the
provisions of the settlement stipulation. /1/
On the basis of the settlement stipulation and the entire record, the
Board makes the following
Findings of Fact
I. The Employer's Business
Central Industries, a corporation duly authorized to do business
under the laws of the State of Illinois, maintains an office and place
of business in Lawrenceville, Illinois, (the Lawrenceville, Illinois
facility), where it is engaged in the manufacture and nonretail sale of
electrical wire harnesses and junction boxes. Central Industries, in the
course and conduct of its business operations during the 12-month period
ending March 31, 1990, which period is representative of its operations
at all times material, sold and shipped from its Lawrenceville, Illinois
facility products, goods, and materials valued in excess of $50,000
directly to points outside the State of Illinois. Central Industries is
now, and has been at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. The Labor Organization Involved
International Union of Electronic, Electrical, Salaried, Machine and
Furniture Workers, AFL--CIO and its Local 825 are labor organizations
within the meaning of Section 2(5) of the Act.
ORDER
On the basis of the above findings of fact, the settlement
stipulation, and the entire record, and pursuant to Section 10(c) of the
National Labor Relations Act, the National Labor Relations Board orders
that the Respondent, International Union of Electronic Electrical
Salaried, Machine and Furniture Workers, AFL--CIO and its Local 825, its
officers, agents, representatives, servants, employees, attorneys, and
all members and persons acting in concert or participation with it,
shall
1. Cease and desist from
(a) Causing, directing, establishing, or maintaining mass
demonstrations, mass picketing, and blocking of ingress and egress at
the entrances to Central Industries' Lawrenceville, Illinois facility.
(b) Converging on, surrounding, shaking, and striking vehicles
attempting to enter or leave Central Industries' Lawrenceville, Illinois
facility.
(c) Throwing or placing loose nails into the driveway or roads used
to enter Central Industries' Lawrenceville, Illinois facility, throwing
rocks, pieces of cinder block, boards with protruding nails, burning
lumber, and other projectiles at employees, repair personnel, and
customers of Central Industries and at vehicles and other property
belonging to or operated by them.
(d) Assaulting employees and other individuals in the presence of
employees.
(e) Verbally threatening and taunting employees and other individuals
in the presence of employees.
(f) Trespassing onto Central Industries' Lawrenceville, Illinois
facility and banging on the doors to the facility.
(g) Flipping over vehicles, attempting to push over street lights,
smashing street lights and other outdoor lights, cutting power cables,
damaging or destroying telephone lines and other equipment that serve
Central Industries' Laurenceville, Illinois facility.
(h) Displaying pistols in the presence of security guards or
employees employed by Central Industries or discharging said pistols in
their presence.
(i) Smashing the glass of, or otherwise damaging, employees' vehicles
and Central Industries' doors and windows and other property and
equipment.
(j) Spitting on employees of Central Industries.
(k) Throwing or shooting metal projectiles at employees' automobiles,
the Employer's van, and at Central Industries' Lawrenceville, Illinois
facility.
(l) Making threats against applicants, waving knives at applicants,
or following employees or applicants.
(m) In any other manner, restraining and coercing employees in the
exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the
policies of the Act.
(a) Post at Respondent's business office and meeting halls in the
vicinity of Central Industries' facility copies of the attached notice
to members. Copies of the notice on forms provided by the Regional
Director for Region 14, after being signed by Respondent's
representatives, shall be posted by the Respondent immediately upon
receipt thereof and be maintained by Respondent for 60 consecutive days
thereafter in conspicuous places, including all places where notices to
members 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 materials.
(b) Mail to the Regional Director for Region 14 signed copies of the
notice for posting, if Central Industries is willing, at Central
Industries' Lawrenceville, Illinois facility, in places where notices to
employees are customarily posted. Copies of the notice, on forms
provided by the Regional Director for Region 14, after having been
signed by the Respondent's representatives, shall forthwith be returned
to the Regional Director for such posting by Central Industries.
(c) Distribute to all Respondent's officers, agents, pickets, and
members employed by Central Industries a copy of the Board's Order and
attached notice and a written directive to the officers, agents,
pickets, and members to refrain from any conduct that has been
restrained and enjoined by the Board.
(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. May 14, 1991
Mary Miller Cracraft, Member
Dennis M. Devaney, Member
NATIONAL LABOR RELATIONS BOARD
MEMBER OVIATT, dissenting.
On October 25, 1989, United States District Judge William L. Beatty
adjudged the Respondent and its agents, Larry Adams and William Carrell
(both pickets), in civil contempt for noncompliance with the court's
June 16, 1989 order granting a temporary injunction. Judge Beatty found
that the Respondent had failed to limit the number of pickets at two
entrances to the Employer's facility to three pickets per entrance and
to limit the number of persons congregating at its strike camp to nine.
He also found that the Respondent, acting through Adams, threatened job
applicants at the facility with violence and waved a knife at them.
Further, Judge Beatty found that the Respondent, through Carrell, caused
a projectile to smash the window of a van used by the Employer to
transport employees as the van left the facility. He adjudged the
Respondent in contempt for the actions of its agent, Gerald Love (a
picket), who threw nails in the path of an employee's car as the
employee left the facility, and for the actions of its agent, Julie Moon
(a picket), who threw nails beneath a truck driven by an employee at the
facility.
On March 23, 1990, at the conclusion of a show cause hearing on a
second petition for adjudication in civil contempt, Judge Beatty found
that the Respondent and Ed Tate (a strike captain/picket) were in
contempt for displaying and discharging a firearm, and that an
unidentified agent of the Respondent was in contempt for identical
conduct.
On July 25, 1990, about 4 months after the March 1990 contempt
adjudication and 9 months after the October 1989 contempt findings, the
Respondent and the General Counsel entered into the instant settlement
stipulation, over the opposition of the Charging Party Employer.
Evidence has been presented to us that, although it pertains to conduct
that has not with" certainty been established as the responsibility of
the Respondent or its agents, suggests caution in approving such a
settlement in the circumstances of this case. Specifically, the
affidavit of security guard Lonnie Padgett avers that on September 21,
1990, Ann Sears, a striking member of the Respondent, sprayed paint on
an employee's car. The September 28, 1990 affidavit of employee Garnet
S. Wilson avers that in the 6 months preceding the affidavit employees
filed 109 claims for flat tires caused by nails when the employees
crossed the picket line. The affidavit of employee Steve Beard avers
that on September 18, 1990, he observed that the Employer's building had
been spray painted. The September 28, 1990 affidavit of employee Bob
Schetzsle avers that the presence of nails in the driveway of the
facility, and the resulting flat tires, have been virtually daily
occurrences. The conduct described in these affidavits is similar to
the conduct for which the Respondent was found in contempt.
With this recent history of contumacious conduct and with the
possibility that the Respondent may still not be in compliance with
court orders enjoining such conduct, I cannot approve a settlement that
includes a nonadmission clause. As I indicated in my dissent in Mine
Workers Island Creek Coal, 302 NLRB No. 162, such a clause could very
well be read to suggest that the Respondent has done nothing wrong. In
fact, a district court has twice found to the contrary in recent months.
If the Board is to exercise independent judgment in reviewing
settlements negotiated by others, it must carefully weigh the
circumstances under which such settlements are entered into and the
language they contain. Having done so, and with due regard for the
flexibility that must be given the General Counsel in negotiating
settlements, I conclude that I cannot approve this settlement with the
nonadmission language in it.
Dated, Washington, D.C. May 14, 1991
Clifford R. Oviatt, Jr., Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
Based on a stipulation providing for consent judgment of the United
States Court of Appeals, and in order to effectuate the policies of the
National Labor Relations Act we hereby notify our members that
WE WILL NOT cause, direct, establish, or maintain mass
demonstrations, mass picketing or blockage of the ingress and egress at
the entrances to Central Industries' Lawrenceville, Illinois facility.
WE WILL NOT converge on, surround, shake, and strike vehicles
attempting to enter or leave Central Industries' Lawrenceville, Illinois
facility.
WE WILL NOT throw or place loose nails into the driveway or roads
used to enter Central Industries' Lawrenceville, Illinois facility, nor
will we throw rocks, pieces of cinder block, boards with protruding
nails, burning lumber, and other projectiles at employees, repair
personnel, and customers of Central Industries and at vehicles and other
property belonging to or operated by them.
WE WILL NOT assault employees and other individuals in the presence
of employees.
WE WILL NOT verbally threaten or taunt employees and other
individuals in the presence of employees.
WE WILL NOT trespass onto Central Industries' Lawrenceville, Illinois
facility and bang on the doors to the facility.
WE WILL NOT flip over vehicles, attempt to push over street lights,
smash street lights and other outdoor lights, cut power cables, damage
or destroy telephone lines and other equipment that serve Central
Industries' Lawrenceville, Illinois facility.
WE WILL NOT display pistols in the presence of security guards or
employees employed by Central Industries nor will we discharge such
pistols in their presence.
WE WILL NOT smash the glass of, or otherwise damage, employees'
vehicles and Central Industries' doors and windows and other property
and equipment. WE WILL NOT spit on employees of Central Industries.
WE WILL NOT throw or shoot metal projectiles at employees'
automobiles, the Employer's van, and at Central Industries'
Lawrenceville, Illinois facility.
WE WILL NOT make threats against applicants, wave knives at
applicants, or follow employees or applicants.
WE WILL NOT in any other manner restrain or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
INTERNATIONAL UNION OF
ELECTRONIC, ELECTRICAL,
SALARIED, MACHINE AND
FURNITURE WORKERS,
AFL--CIO AND ITS LOCAL 825
(Labor Organization)
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, 611 North 10th Street,
Suite 400, Saint Louis, Missouri, 63101-1932, Telephone 314--425--4361.
'Footnotes to the Decision and Order'
/1/ Central Industries has declined to enter into the settlement
stipulation and on October 2, 1990, filed a statement with the Board
objecting to the settlement on the grounds that the Respondent allegedly
has continued to engage in unlawful conduct. It submitted four
affidavits from individuals purporting to show that nails continue to be
found in Central Industries' driveway causing damage to employees'
vehicles, and that persons (including one striker) continue to trespass
and spray paint its building. A review of those affidavits, however,
fails to establish with any degree of certainty that the Respondent or
its agents were responsible for the alleged misconduct.
Contrary to our dissenting colleague, we see no reason to reject the
parties' settlement stipulation merely because it contains a
nonadmission clause. Our colleague reasons that because the Respondent
was twice found to be in contempt of court orders enjoining them from
engaging in the type of conduct allegedly engaged in here, and because
the possibility exists that they continued to engage in misconduct after
signing the settlement agreement, approval of the settlement stipulation
with the nonadmissions clause is inappropriate. It is true that the
Respondent has been found in contempt, most recently by court order
dated April 13, 1990, for conduct engaged in on December 11, 1989;
however, a respondent's recidivism does not constitute a bar to approval
by the Board of a settlement agreement containing a nonadmissions
clause. See Containair Systems Corp. v. NLRB, 521 F.2d 1166 (2d Cir.
1975); Philadelphia Building Trades Council (Wohlsen Construction), 279
NLRB 1242 (1986). Our colleague's suggestion that the Respondent may
have engaged in misconduct after executing the settlement agreement on
July 18, 1990, lacks evidentiary support. The only evidence in this
regard consists of the four affidavits submitted by the Employer which,
as previously indicated and as our colleague readily admits, fails to
establish with any degree of certainty that the Respondent or its agents
were responsible for the misconduct described therein. Further, in Mine
Workers (Island Creek Coal), 302 NLRB No. 162, issued today, the Board
addressed our colleague's concern that the inclusion of a nonadmissions
clause in a settlement stipulation could be read to suggest that the
respondent had not engaged in any wrongdoing. For the reasons stated in
Island Creek, we find our colleague's concern here unwarranted. Finally,
we believe that on balance, the remedy provided by the parties'
settlement stipulation, including a court-enforceable broad
cease-and-desist order and wide dissemination of the Board's notice,
fully effectuates the purposes and policies of the Act and adequately
balances the risks of' further litigation against an acceptable closure
of this case by settlement.
302 NLRB No. 168
D--2000
San Francisco, CA
LABORERS FUNDS ADMINISTRATIVE OFFICE OF NORTHERN CALIFORNIA, INC and
OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, LOCAL 3
Case 20--CA--21333(E)
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL DECISION AND ORDER
On May 9, 1990, Administrative Law Judge Jerrold H. Shapiro issued
the attached supplemental decision. The General Counsel filed exceptions
and a supporting brief. The Applicant filed cross-exceptions and an
answering brief, and 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, and conclusions only to the extent consistent with this
Decision and Order.
In his supplemental decision, the judge granted the Applicant's
application for attorney's fees and expenses under the Equal Access to
Justice Act (EAJA) and the Board's Rules and Regulations, Section
102.143 et seq. The General Counsel excepts to the award, challenging
virtually all aspects of it, including the judge's findings that the
General Counsel's position in the underlying unfair labor practice case
(Case 20--CA--21333, unreported in the Board volumes) was not
substantially justified. For the reasons stated below, we reverse the
judge's finding that the General Counsel's position was not
substantially justified and deny the application. /1/
EAJA provides that an administrative agency may award certain
expenses incurred in connection with an adversary adjudication to a
prevailing party, unless the agency finds that the Government's position
was substantially justified. Substantial justification is not to be
equated with a substantial probability of prevailing on the merits. /2/
Nor is the standard intended to deter the Government in good faith from
advancing close questions of fact and law or to preclude it from
exploring novel questions of law. /3/ Rather, as the Supreme Court
stated in Pierce v. Underwood, 487 US. 552, 565 (1988), the phrase
"substantial justification" means "justified to a degree that could
satisfy a reasonable person" or having a "reasonable basis both in law
and fact." /4/
Unfair Labor Practice History
As the record in the underlying unfair labor practice proceeding and
the instant supplemental proceeding establishes, the parties' last
collective-bargaining agreement was effective from November 1, 1976,
through October 31, 1979. Prior to the agreement's expiration, the
Applicant and the Union began negotiating a successor agreement. When
the 1976--1979 agreement expired, the Applicant unilaterally changed,
among other things, the employees' contractual workweek from 32 hours, 4
days a week to 35 hours, 5 days a week. On January 9, 1981, in an
earlier proceeding, /5/ an administrative law judge found that the
unilateral change violated Section 8(a) (5) and (1) of the Act, and
ordered that the Respondent restore the status quo ante and make the
employees whole for any losses of earnings resulting from the change. On
February 26, 1981, the Board adopted the judge's Order in an unpublished
decision.
For 6 years following the Board's decision, the Applicant steadfastly
refused to remedy these unilateral change violations, notwithstanding
that, on August 14, 1981, the United States Court of Appeals for the
Ninth Circuit issued a judgment granting enforcement of the Board's
Order and in the 5 years following, four additional orders to compel the
Applicant's compliance with the enforced Board Order. /6/ During that
period the Applicant repeatedly maintained that its unilateral changes
had been instituted following an impasse in negotiations. The Applicant
also refused to post notices to employees, to notify the Regional
Director for Region 20 about its compliance efforts, and to make its
records available to the Regional Office. On January 27, 1986, following
a special master s report to the court on January 3, 1986, that
recommended among other things that a writ of body attachment for civil
contempt be issued for David Johnson, the Applicant's administrator and
secretary, the Applicant partially reinstituted the 4-day, 32-hour
workweek. Six months later, however, the Applicant reneged and notified
employees:
Since our voluntary compliance with the (special master's)
recommendation on January 27, 1986, there has been no request for
bargaining by the Union and no new proposals; since the
government has admitted that an impasse has long been in place and
there has been virtually no change in any circumstance, we will
return to the workweek, holiday and sick leave conditions which
existed on January 26, 1986. This restoration of the workweek,
holiday and sick leave conditions will take effect on July 7,
1986. /7/
On April 17, 1987, the Applicant once more restored the 4-day,
32-hour workweek in accordance with the Board's 1981 Order Official
compliance was not achieved, however, until December 1987, following the
settlement of disputed amounts owed pursuant to the make whole
provisions of the Board's 1981 Order.
Despite the Applicant's conduct, on November 19, 1986, the Union and
the Applicant resumed bargaining for an agreement to succeed the
1976--1979 agreement. At their introductory bargaining session the
Applicant and the Union agreed that holidays and the workweek were major
issues On several occasions between the commencement of negotiations and
July 20, 1987, when the Respondent unilaterally implemented its final
offer thereby giving rise to the charges in Case 20--CA--21333, Union
Negotiator George Davis informed the Applicant's negotiator, Robert
Russell, that compliance with the Board's outstanding Order was very
important to employees and would facilitate reaching an agreement.
Although Russell stated that compliance matters were not within the
scope of his negotiating authority, he said he would pass along the
Union's compliance concerns to the Applicant's administrator, Johnson.
/8/
The Union and the Applicant held 12 additional bargaining sessions,
and at least two "informal" meetings which only the chief negotiators
attended before negotiations broke off in late July 1987. Although they
reached agreement on numerous subjects, they were still far apart as of
April 13, 1987, on the "major" issues described above. Nor was their
disagreement on the workweek surmounted when, on April 17, 1987, the
Applicant restored the 4-day, 32-hour workweek in compliance with the
Board's 1981 Order. From start to finish of the negotiations, the
Applicant insisted on a 5-day workweek and the Union insisted on a 4-day
workweek. At the April 21 session, the Applicant proposed a 5-day,
37-1/2-hour workweek for the first year of the contract and a 5-day,
40-hour workweek for the remaining 2 years. At their next session on May
4, the Applicant proposed a 5-day, 35-hour workweek for the first year
of a two or three year contract and a 37-1/2-hour, 5-day workweek for
the remainder of the contract. The Union adhered to its proposal for a
4-day, 32-hour workweek but proposed that the contract be reopened after
the first year to renegotiate the workweek. Previously, the Union had
proposed "splitting" the workweek by scheduling employees to work 32
hours Monday through Thursday and Tuesday through Friday. The Union
stated that the shorter workweek made layoffs less likely. The Applicant
stated that the longer workweek made for greater efficiency On June 3,
Davis and Russell met alone to discuss outstanding proposals and at this
meeting the Union proposed a "favored nations" clause that would allow
the Applicant to adopt a more favorable workweek should one be reached
between the Union and any other employer. Davis indicated that all the
collective-bargaining agreements the Union had with other employers
provided for 4-day workweeks, and the Union wanted to keep those
contracts standard because it believed if it gave in on one it would
have to give in to other employers.
On July 2, the Applicant presented its final offer to the Union in
the presence of a Federal mediator. The offer included the proposed
5-day, 35-hour workweek, as well as provisions for a wage increase and
the observance of holidays falling on a Saturday that were previously
proposed or deemed acceptable by the Union. At the same meeting, the
Applicant rejected the Union's workweek proposals. On July 16, the
employees rejected the Applicant's final offer, as a result of which
Russell informed a union business representative that the Applicant
would implement its last offer on July 20. Thereafter, as stated, the
Applicant returned to the 35-hour workweek on July 20, and the Union
filed an 8(a) (5) charge (Case 20--CA--21333).
The Regional Director initially dismissed the charge, finding no
nexus between the Applicant's unlawful conduct in Case 20--CA--14543 and
its July 20 implementation of the 35-hour workweek. The Union appealed
the dismissal, and on April 18, 1988, the General Counsel's Office of
Appeals issued a letter stating that the case raised issues warranting a
hearing and directing the Regional Director to issue a complaint On May
24, 1988, a complaint issued. At the hearing, counsel for the General
Counsel declined to acknowledge that an impasse occurred, asserting that
any deadlock in negotiations that occurred was tainted by the
Respondent's 6-year failure to comply with the Board's Order in Case
20--CA--14543, and therefore was not a legally cognizable impasse.
The judge found that an impasse did occur and that there was
insufficient evidence of a nexus between the Respondent's prior unfair
labor practices and the impasse. He found that although the Union
requested discussion about the Respondent's obligation to comply with
the outstanding orders at the outset of negotiations, it never included
compliance among its bargaining proposals, and that while the Union
repeatedly stated that compliance would make it easier to reach an
agreement, its negotiators did not testify that the delayed compliance
influenced the Union's bargaining position or the employees' rejection
of the Respondent's workweek proposal---even though that was the only
issue separating the parties at the time of the Respondent's unilateral
implementation of its final contract proposal. He noted that the
Applicant restored the status quo ante 3 months prior to impasse, and
found further that each party engaged in hard bargaining on the workweek
issue, and that the Union's inability to compromise was due to its fear
of adverse economic consequences and desire to avoid a dangerous
precedent for upcoming negotiations with other employers. /9/ Based on
the foregoing, he dismissed the complaint in the underlying case.
EAJA Analysis
In the instant proceeding, the judge found that the General Counsel's
theory of the underlying case was not supported in fact or law In so
finding, he first noted that the General Counsel did not challenge the
Applicant's claim of impasse. He also drew an adverse inference from the
General Counsel's failure to interview the Applicant's agents prior to
issuing the complaint, and imputed knowledge of the tenor of
negotiations and positions of the parties during negotiations to the
General Counsel based on submissions made to the Regional Office by the
Applicant's attorney prior to the hearing. Regarding legal sufficiency,
the judge found that bone of the cases cited by the General Counsel for
the proposition that the Applicant's prior unfair labor practices
precluded unilateral implementation of its proposals are factually
comparable to the underlying case. /10/
Contrary to the judge, we find that, although not armed with the
strongest facts for prevailing in the unfair labor practice case, the
General Counsel possessed sufficient evidence on which to prosecute the
case The General Counsel was aware of the prior unfair labor practices
and the Applicant's refusal until midway through negotiations to take
even partial steps to remedy them. The General Counsel was also aware of
the Applicant's continued insistence in the most recent negotiations on
formalizing agreement on the workweek and attendant overtime provisions
that were unlawfully implemented, its continuing failure to provide the
backpay due employees and union funds that would have fully restored the
status quo ante, and the Union's repeated requests throughout
negotiations that the Applicant remedy the unfair labor practices in
order to raise employee morale and facilitate reaching an agreement.
Even considering the General Counsel's possession of the information
submitted by the Applicant's attorney, i.e., that the Union never
insisted that an agreement was contingent on compliance with the Board's
Order and that the Union in fact asserted unrelated grounds for its
position on the workweek, we find, that the General Counsel was correct
in concluding that Applicant's claim of impasse "raise(d) Section 8(a)
(5) and (1) issues warranting Board determination based upon record
testimony developed at a hearing." /11/ We note particularly that for
the General Counsel to prevail in the underlying proceeding it was
necessary only for him to prove the claimed impasse was based in part on
the Applicant's unremedied unfair labor practices. /12/ Accordingly, we
do not view the evidence as necessarily inconsistent with, or as
precluding a theory that an impasse, if reached, was not legally
cognizable.
It is also significant that the judge had to make credibility
findings between the testimony of Union Negotiator Davis and Applicant
Negotiator Russell concerning the references to the Applicant's
outstanding backpay liability during Negotiations. The fact that the
credibility resolutions did not affect the judge's ultimate decision
does not compel a finding that substantial justification was lacking.
Obviously, the General Counsel was not required to believe all the
assertions made in the Applicant's prehearing submissions to the
Regional Office, particularly in view of the discrepancy between the
Union's and the Applicant's version of the incidents. /13/ In this
connection, we do not view Iowa Parcel Service, 266 NLRB 392 (1983),
enfd. 739 F.2d 1035 (8th Cir. 1984), cert. denied 105 S.Ct. 595 (1984),
as being as readily distinguishable from the instant case as the judge
does.
The fact that counsel for the General Counsel extended an invitation
to the Applicant to participate in an investigation after issuance of
the complaint does not of itself give rise to a finding of insufficient
justification especially given the sequence of events here. The
Regional Office had completed its investigation before the Regional
Director initially decided not to issue complaint. The General Counsel
reversed that decision on appeal because, in disagreement with the
Regional Director, he concluded that the evidence gathered in that
investigation could be construed, if credited by a judge, as making out
an unfair labor practice. /14/ The Regional Director then issued
complaint on the direction of the General Counsel, but, out of an
abundance of caution, invited a submission by the Applicant.
In sum, it is irrelevant whether, in a further investigation after
the General Counsel had directed issuance of complaint, the Applicant's
witnesses would have supported assertions made in the Applicant's
September 9, 1987 position statement. Reasonable minds could differ as
to the legal significance of those factual assertions. The General
Counsel did not act unreasonably in concluding that there was at least a
triable case as to whether the Applicant's years-long delay in remedying
its unfair labor practice that was related to the unit employees'
workweek tainted the impasse on that same subject.
Finally, we note that although the cases relied on by counsel for the
General Counsel are not on all fours with the underlying case, they all
indicate that a background of unlawful unilateral changes may be such as
to taint an otherwise legally cognizable impasse Given that the Board
has no per se test for determining the length of time that must elapse
or the number of sessions that must take place before impasse occurs,
and that an impasse determination is made on a case-by-case basis, and
in view of the Applicant's renewed insistence on terms it had unlawfully
imposed for 6 years, we find that the General Counsel possessed a
reasonable basis in law, as well as fact, to prosecute a case alleging
that the Respondent's conduct violated the Act.
ORDER
The National Labor Relations Board reverses the recommended Order of
the administrative law judge and orders that the application of the
Applicant, Laborers Funds Administrative Office of Northern California,
Inc., San Francisco, California, for attorney's fees and expenses under
the Equal Access to Justice Act is denied.
Dated, Washington, D.C. May 17, 1991
James M. Stephens, Chairman
Mary Miller Cracraft, Member
Dennis M. Devaney, Member
NATIONAL LABOR RELATIONS BOARD
'Footnotes to the Decision and Order'
/1/ The General Counsel also excepts to the judge's findings that the
Applicant met eligibility standards with respect to net worth, that
precomplaint fees and costs, compensation for law clerks' services and
postcomplaint fees and costs related to the preparation of its August
16, 1988 letter and to issues on which it did not prevail should be
awarded, and that one-half the fees paid by Applicant to its attorneys
for legal services should be awarded. The Applicant excepts to the
judge's calculation of attorney's fees at the hourly rate of $75 rather
than the higher hourly rate charged by its attorneys. In view of our
finding that the General Counsel was substantially justified in
prosecuting the case, we find it unnecessary to reach these issues.
/2/ Jim's Big M, 266 NLRB 665 (1983).
/3/ Craig & Hamilton Meat Co., 276 NLRB 974 (1985).
/4/ The Court found that a sentence in the 1985 House Committee
Report, H.R. Conf. Rep. No. 99--120 (1985), which defined substantial
justification as "more than mere reasonableness" was not an
authoritative interpretation of what the 1980 statute meant or of what
the 1985 Congress intended.
/5/ Case 20--CA--14543.
/6/ Contempt adjudication orders were issued on February 16, 1983,
November 25, 1983, May 8, 1984 (order denying rehearing), and December
9, 1986. Only the latter order was published, No. 81--7401, December 9,
1986. 124 LRRM 2078.
/7/ The admission of impasse referred to is not explained nor
substantiated by the record. The record does indicate that the Applicant
raised an impasse argument during contempt proceedings, but that the
court rejected the argument as waived.
/8/ At all times material to the events in Cases 20--CA--14543 and
20--CA--21333, Johnson was primarily responsible for the formulation of
personnel and labor relations policies.
/9/ The judge also rejected the Union's contention that the Applicant
engaged in bad-faith bargaining by negotiating with a preconceived
intent to bring about an impasse so as to enable it to reinstitute the
conditions over which it had so long delayed compliance.
/10/ M & C Vending Co., 278 NLRB 320 (1986); Wayne's Dairy, 223 NLRB
260 (1976); and Bethlehem Steel Co., 147 NLRB 977 (1964).
/11/ This was the language used in the letter from the Office of
Appeals reversing the Regional Director on his initial refusal to issue
complaint.
/12/ See Bethlehem Steel Co., supra.
/13/ Advance Development Corp., 277 NLRB 1086 (1985).
/14/ This is not to suggest that the Board will uphold all decisions
of the Office of Appeals to sustain appeals as substantially justified.
Rather, in considering the adequacy of an investigation or the lack
thereof, we will examine the circumstances surrounding the processing of
the charge. We will not deem a post-appeal investigation or offer to
investigate to be inadequate simply because it follows the issuance of
the complaint.
SUPPLEMENTAL DECISION
Statement of the Case
JERROLD H. SHAPIRO, Administrative Law Judge: This supplemental
proceeding is before the National Labor Relations Board (Board), for
consideration of the Verified Application for Attorneys Fees and Costs
(Application) submitted on June 81 1989 by Respondent Laborers Funds
Administrative Office of Northern California, Inc. (Applicant),
pursuant to the Equal Access to Justice Act, Pub. L. 96--481, 94 Stat.
23251 5 U.S.C. Sec. 504 (1980)1 as amended in Pub. L. 99-80, 99 Stat.
183 (August 5, 1985) (EAJA), and Section 102.143, et seq., of the
Board's Rules and Regulations.
On May 9, 1989 the Board issued an Order /1/ in the above-entitled
case adopting my findings and conclusions that the Applicant herein, had
not engaged in unfair labor practices in violation of the National Labor
Relations Act (Act) and dismissing the complaint in its entirety.
In its June 8, 1989 Application, the Applicant argues that as the
prevailing party in the underlying Adversary adjudication it is entitled
to an award of fees and expenses under the EAJA. On June 9, 1989,
pursuant to Section 102.148(b) of the Board's Rules, the Board ordered
that the matter be referred to me for appropriate action. Thereafter,
on July 13, 1989, the General Counsel filed a motion to dismiss the
Application and the Applicant on August Il, 1989 filed a timely
response.
On August 171 1989, having considered the General Counsel's motion to
dismiss and the Applicant's response, I issued an order denying the
motion to dismiss, without prejudice, and directed the Applicant to
resubmit a schedule of fees recomputed at the hourly rate of $75 and to
file certain additional information pertaining to its eligibility for an
award and to the propriety and reasonableness of certain of the fees and
expenses requested. On October 1989, in response to my order of August
171 1989, the Applicant filed a schedule of fees recomputed at $75 an
hour and submitted the additional requested information.
On November 14, 1989 the General Counsel filed an answer to the
Applicant's Application and a supporting memorandum. Thereafter, on
December 5, 1989 the Applicant filed a reply to the General Counsel's
answer.
On December 7, 1989, having considered the General Counsel's answer
and the Applicant's reply, I issued an order directing the Applicant to
submit certain additional information pertaining to its eligibility for
an award. On January 5, 1990, in response to my order of December 7,
1989, the Applicant submitted the additional requested information.
Thereafter, on February 5, 1990, the General Counsel filed a response.
Subsequent to filing the Application, the Applicant submitted further
fee statements concerning fees and expenses incurred in the preparation
and prosecution of the Application. These statements were a part of the
supplemental declarations filed by the Applicant's Attorney on these
dates: July 7, 1989; October 2, 1989; November 10, 1989; December 5,
1989; December 18, 1989; January 29, 1990; and, February 16, 1990.
Based upon the record in this supplemental proceeding, described
supra, and the record in the underlying unfair labor practice
proceeding, and having considered the parties' arguments, I make the
following findings and conclusions.
The Issues
The EAJA, as applied to this case, provides for an award of
attorney's fees and expenses to the Applicant, the "prevailing party" in
the underlying unfair labor practice proceeding, provided the Applicant
meets the EAJA's eligibility requirements and provided further that the
General Counsel fails to show that the General Counsel's position in the
underlying unfair labor practice proceeding was "substantially
justified." Other than their agreement that the Applicant is a
prevailing party, the parties dispute virtually everything else of
significance. General Counsel contends that the Applicant does not meet
the EAJA's eligibility requirements and, in any event, that the General
Counsel's position in the unfair labor practice proceeding was
substantially justified. The General Counsel also contends that even if
the Applicant is entitled to an award of fees and expenses, that the
Applicant's fees and expenses incurred before the issuance of the
complaint in the underlying unfair labor practice proceeding are not
compensable, and that I am without authority to award the Applicant more
than $75 an hour for attorney's fees, and that in certain other
enumerated respects the Applicant's claims for fees and expenses are
either excessive or not recoverable. I shall address each of these
issues in turn.
The Applicant's Eligibility
1. The Evidence
The Applicant, a non-profit corporation, is in the business of
administering Section 302(c) (5) (6) Labor Management Relations Act
(LMRA) trust funds, which it does by contracting with the funds to
provide administrative services at cost. The Applicant has two offices
in San Francisco, California which it leases from the Laborers Pension
Trust Fund. It employs a work force of approximately 60 employees,
including managers, accountants, claims processors, collectors, and
bookkeepers. Its non-supervisory employees are represented for purpose
of collective bargaining by Office and Professional Employees
International Union, Local 3, the Charging Party in the underlying
unfair labor practice proceeding.
The trust funds administered by the Applicant are irrevocable trust
funds, as required by Section 302(c) of the LMRA, and are established
pursuant to employer-union collective-bargaining contracts to provide
health, retirement, holiday, vacation and employment training program
benefits to the covered employees and their dependents. They are
administered, in accord with Section 302(c) of the LMRA, by an equal
number of employer and union appointed trustees and a neutral trustee
selected by the union and employer appointed trustees. The trustees owe
a strict fiduciary duty to the beneficiaries of the trust funds, and
therefore cannot seek to operate the funds to advance the interests of
themselves personally or the interests of the union or employer which
appoints them as trustees. See generally, NLRB v. Amax Coal Co., 453
U.S. 322 (1981).
Three of the trust funds administered by the Applicant are the
Laborers Pension Trust Fund for Northern California, herein called the
Laborers Pension Trust Fund; the Laborers Health and Welfare Trust Fund
for Northern California, herein called the Laborers Health & Welfare
Trust Fund; the Laborers Holiday-Vacation Trust Fund for Northern
California, herein called Laborers Vacation Trust Fund; and, herein
collectively called the Laborers pension-Health & Welfare-Vacation Trust
Funds.
Laborers Pension-Health & Welfare-Vacation Trust Funds have the same
trustees. In 1963 their trustees, on behalf of the Laborers
Pension-Health & Welfare-Vacation Trust Funds, incorporated the
Applicant for the primary purpose of administering the Laborers
Pension-Health & Welfare-Vacation Trust Funds and other trust funds
formulated pursuant to collective-bargaining contracts between employers
and labor organizations affiliated with the International Hod Carriers,
Building and Common Laborers' Union of America.
I reject the Applicant's apparent contention that the trustees
incorporated the Applicant on behalf of themselves as individuals,
rather than on behalf of the Laborers Pension-Health & Welfare-Vacation
Trust Funds, for whom they acted as trustees. Any doubt that the
trustees acted on behalf of these three trust funds when they created
the Applicant is removed by the fact that Article TEN of the Applicant's
Articles of Incorporation provides, in substance, that if the Applicant
is dissolved or otherwise goes out of business, that any assets
remaining after its debits have been satisfied shall be distributed
among the Laborers pension-Health & Welfare-Vacation Trust Funds, rather
than among the individual trustees.
The Laborers Pension Trust Fund and the Laborers Vacation Trust Fund
have no places of business and employ no 'employees. The Laborers
Health & Welfare Trust Fund has an office in Oakland, California where
it employs a work force of approximately 46 employees, including
clerical and administrative employees, claims adjustors, and a
supervisor, all of whom are represented by Teamsters Local No. 856.
The Applicant, as a non-profit corporation, is "owned", in a sense,
by "members" rather than by shareholders. /2/ The Applicant is not owned
by its members in the usual sense of ownership, because unlike the
shareholders of a for-profit corporation, the Applicant's members do not
receive a share of the Applicant's profits inasmuch as non-profit
corporations, like the Applicant, have no profits. Nor are the
Applicant's members eligible to receive any of the Applicant's assets,
if the Applicant is dissolved. As noted previously, upon dissolution,
the Applicant's assets will be distributed to the Laborers
Pension-Health & Welfare-Vacation Trust Funds.
Since its incorporation, the Applicant's members have been the 10
trustees of the Laborers Pension-Health & Welfare-Vacation Trust Funds.
These trustees are also the Applicant's Board of Directors. In this
regard, the Applicant's By-Laws state the, "the business and affairs of
the (Applicant) shall be conducted by a board of 10 directors elected by
and from the members (emphasis added)." Consistent with the By-Laws, the
Applicant's 10 members, the trustees of the Laborers Pension-Health &
Welfare-Vacation Trust Funds, voted themselves to be the Applicant's
Board of Directors. It is undisputed that the trustees, in their
capacity as the Applicant's Board of Directors, are the governing body
of the Applicant and conduct the business and affairs of the Applicant.
An example of this is contained in the record of the underlying unfair
labor practice proceeding. There, it was established, the Applicant
hired the management consultant firm of Scarth-Lyons to negotiate on its
behalf with Local 3, only after Scarth-Lyons was interviewed and
approved by the Applicant's Board of Directors, and during the
subsequent contract negotiations with Local 3, the essential contract
proposals advanced by Scarth-Lyons, on the Applicant's behalf, were made
only after having been approved by the Applicant's Board of Directors.
During the fiscal year ending May 31, 1988 the Applicant's revenues
totaled $5,170,870, all of which consisted of administrative fees paid
to the Applicant by the following trust funds: Laborers Health &
Welfare Trust Fund, $1,462,292; Laborers Pension Trust Fund,
$1,107,318; Laborers Vacation Trust Fund, $889,406; Laborers Training
and Retraining Trust Fund for Northern California, $784,168; /3/
Northern California Cement Masons Administration, Inc., $778,603;
Laborers Contract Administration Trust Fund for Northern California,
$3,100; Annuity Pension Fund, $3,034; /4/ and, Aggregates and Concrete
Association of Northern California, Inc. Employees Security Fund,
$139,934. In other words, during the fiscal year ending May 31, 1988,
approximately 67 percent of the Applicant's revenue was in the form of
administrative fees paid to the Applicant by the Laborers Pension-Health
& Welfare-Vacation Trust Funds. Also for the previous fiscal year
ending May 31, 1987, the record reveals that approximately 64 percent of
the Applicant's revenue was in the form of administrative fees paid to
the Applicant by the Laborers Pension-Health & Welfare-Vacation Trust
Funds.
In addition to providing the majority of the Applicant's revenue, the
Laborers Pension-Health & Welfare-Vacation Trust Funds loaned the
Applicant $480,000, which loan is still outstanding, and guaranteed the
Applicant's monthly payments for leased business equipment. In this
regard, the record reveals that each of the Laborers Pension-Health &
Welfare-Vacation Trust Funds holds a promissory note valued at $160,000
for monies they have loaned to the Applicant, and that in 1983 the
Applicant entered into a 7-year lease for electronic data processing
equipment at a monthly rental of $11,200 and that the Laborers
Pension-Health & Welfare-Vacation Trust Funds jointly guaranteed these
monthly lease payments.
It is undisputed that the net worth of the Applicant for the fiscal
year ending May 31, 1988 was $30 (thirty dollars). It is also
undisputed that the net worth of the Laborers Vacation Trust Fund was
$2,529,980 and the net worth of the Laborers Training Trust Fund was
$4,992.809 for the fiscal years ending May 31, 1988. /5/
The financial statements of the Laborers Pension Trust Fund show that
for the fiscal year ending May 31, 1988 its net assets available for
benefits totaled $495,191,290 and that its present value of accumulated
plan benefits, also known as the present value of accrued benefits,
totaled $650,569,700.
It is undisputed that the annual financial statements of the trust
funds involved in this case, do not specifically identify their net
worth, but to compute their net worth it is necessary to subtract the
present value of accumulated plan benefits, also known as the present
value of accrued benefits, from the trust fund's net assets available
for benefits. In this regard, Sunil Bhardwaj states in his declaration:
/6/
The financial statements (of the Laborers Pension-Health &
Welfare-Vacation Trust Funds) contained in Exhibits B, C and D are
those which are required to be prepared for defined benefit plans
pursuant to the standards established by the Financial Accounting
Standards Board ("FASB"). FASB Statement - 35 (Accounting and
Reporting for Defined Benefit Plans) requires- (1) a Statement of
Net Assets Available for Benefits, . . The Statement of Net
Assets Available for Benefits is not statement of "net worth".
"Net Worth" is a term in general business use that reflects the
difference between an entity's total assets and its total (current
and long-term) liabilities. The Statement of Net Assets Available
for. Benefits is exclusive of the value of accumulated plan
benefits, which is a long-term liability. The accounting
profession does not calculate a defined benefit plan's "net
worth," because of the uncertainty of relying on actuarial
information, which is necessary for stating the present value of
accumulated plan benefits. Although financial statements for
defined benefit plans do not state "net worth", an approximation
of the concept can be derived by subtracting the present value of
accumulated plan benefits from net assets available for benefits.
Accordingly, subtracting the present value of accumulated plan
benefits for the Laborers Pension Trust Fund as of May 31, 1988
($650,569,700) from its net assets available for benefits as of May 31,
1988 ($495,191,290), establishes that the net worth of the Laborers
Pension Trust Fund as of May 31, 1988 was a minus $155,378,410.
I reject counsel for the General Counsel's contention that the net
worth of the Laborers Pension Trust Fund and the Laborers Health &
Welfare Trust Fund, infra, is limited to their total assets minus their
current liabilities. In support of this contention counsel states that
since the funds have no current obligation to pay the benefit claims
which will be made in the future, that these future claims on benefits
do not affect the funds' net worth. "Counsel for the General Counsel
offers no authority for the proposition that it is only the current
liabilities of the trust funds that can be used to compute their net
worth, and has not otherwise contradicted the declaration of the
Applicant's expert, Sunil Bhardwaj, that "'(n)et worth' is a term in
general business use that reflects the difference between an entity's
total assets and its total (current and long-term) liabilities", and
that "(a)lthough financial statements for defined benefit plans
(referring to the trust funds involved herein) do not state 'net worth',
an approximation of the concept can be derived by subtracting the
present value of accumulated plan benefits from net assets available for
benefits."
The financial statements of the Laborers Health & Welf are Trust Fund
show that for the fiscal year ending May 31, 1988, it had net assets
available for benefits of $5,519,758. As I have noted previously, the
financial statements of the Laborers Health & Welfare Trust Fund do not
specifically identify its net worth. Rather the Fund's net worth is
computed by subtracting the present value of accumulated plan benefits,
also known as accrued. benefits, from the net assets available for
benefits. However, in the case of the Laborers Health & Welfare Trust
Fund, unlike the Laborers Pension Trust Fund, the auditors who audited
its books of account for the fiscal year ending May 31, 1988, did not
prepare a document showing the Fund's accrued benefits. In order to
establish the Funds' total accrued benefits, as of May 31, 1988, the
Applicant submitted a declaration from Jordon Smith, a group manager for
the Martin E. Segal Company, the company that is the actuary for the
Laborers Pension-Health & Welfare-Vacation Trust Funds.
In his declaration, Smith stated that the annual statistical reports
prepared by Martin E. Segal for the Laborers Health & Welfare Trust Fund
are prepared under his direction and supervision and further stated that
he was familiar with the financial statements prepared by the auditors
of Arthur Anderson & Co. for the Laborers Health & Welfare Trust Fund,
because in preparing those financial reports the auditors and the
actuaries employed by Martin E. Segal worked together in fulfilling
their respective responsibilities. Smith also declared:
Participants in the Laborers Health & Welfare Trust Fund for
Northern California earn future eligibility for benefits as they
work. For example, work performed in the period from February
through July earns eligibility for benefits in the following
period of September through February. Thereafter, as of the end
of the Trust Fund's fiscal year, May 31, participants have earned
future eligibility. The potential liability for that future
eligibility as (of) May 31, 1988, was in excess of $8 million and
is not shown on the Trust Fund's audited financial statements.
Financial statements for employee benefit funds do not identify
"net worth". If one were to calculate the theoretical net worth
of the Laborers Health & Welfare Trust Fund as of May 31, 1988,
the potential liability for future earned eligibility, in the
amount of in excess of $8 million, would need to be taken into
account.
Accordingly, based upon Smith's declaration, subtracting the present
value of the Laborers Health & Welfare Trust Fund's accumulated plan
benefits as of the fiscal year ending May 31, 1988 ($8 million), from
the Trust Fund's net assets available for benefits as of May 31, 1988
($5,519,758), establish that the net worth of the Laborers Health &
Welfare Trust Fund, as of May 31, 1988, was a minus $2,480,242.
I reject counsel for General Counsel's contention that Smith was not
shown to be competent to submit a declaration about the present value of
the accumulated benefits for the Laborers Health & Welfare Trust Fund,
and for this reason I should find the Applicant has failed to present
any evidence of the present value of the accumulated benefits for the
Laborers Health & Welfare Trust Fund. As an actuary who worked in
conjunction with the Trust Fund's auditors in auditing the fund's
business records for the period ending May 31, 1988, Smith was competent
to submit a declaration about the Fund's accumulated benefits as of the
fiscal year ending May 31, 1988. I note that counsel for the General
Counsel did not request that I afford him an opportunity to
cross-examine Smith about the matters contained in his declaration, but
simply requested that I reject his declaration in its entirety because
he was an incompetent declarant.
2. Analysis
Section 102.143(c) of the Board's Rules and Regulations, in pertinent
part, defines a party eligible for an award under the EAJA as a
corporation with a net worth of not more than $7 million and not more
than 500 employees as of the date of the complaint in an unfair labor
practice proceeding. /7/ In addition, Section 102.143(g) of the Board's
Rules and Regulations states:
The net worth and number of employees of the applicant and all
of its affiliates shall be aggregated to determine eligibility.
Any individual, corporation, or other entity that directly or
indirectly controls or owns a majority of the voting shares or
other interest of the applicant . . . will be considered an
affiliate for purpose of this part, unless such treatment would be
unjust and contrary to the purpose of the EAJA . in light of the
actual relationship between the affiliated entities. In addition,
financial relationships of the applicant other than those
described in this paragraph may constitute special circumstances
that would make an award unjust.
In Noel Produce, Inc., 273 NLRB 769 (1984), where the Board rejected
an applicant's contention that the Board had exceeded its administrative
authority in adopting Section 102.143(g), the Board stated:
Section 102.143(g) is merely an adoption of the rule
recommended by the Administrative Conference of the United States
which received and considered comments on the validity of the
rule. Although EAJA is silent on the matter, the requirement
(that the net worth of an applicant be consolidated with that of
its affiliates in determining eligibility) implements the purpose
of the Act, which sought to establish "financial criteria which
limit the bill's application to those persons and small businesses
for whom costs may be a deterrent to vindicating their rights
(citation omitted)." Parties that meet the eligibility standard
only because of technicalities of legal or corporate form, while
having access to a large pool of resources from affiliated
companies, do not fall within this group of intended
beneficiaries. Moreover, in our attempt to ensure that the rule
does not eliminate deserving applicants, Section 102.143(g)
provides that in limited circumstances net worth will not be
consolidated where "such treatment would be unjust and contrary to
the purposes of the EAJA . . . in light of the actual relationship
between the affiliated entities."
The Applicant contends it is eligible for an award of fees and
expenses under the EAJA because its net worth did not exceed $7 million
and it employed not more than 500 employees during the time material.
The General Counsel contends that the Laborers Pension-Health &
Welfare-Vacation Trust Funds and the Laborers Training Trust Fund are
affiliates of the Applicant within the meaning of Section 102.143(g) of
the Board's Rules and Regulations, which requires that the net worth of
the these five entities be aggregated to determine the Applicant's
eligibility for an award under the EAJA. The Applicant's response is
that the Laborers Pension-Health & Welfare-Vacation Trust Funds and the
Laborers Training Trust Fund are not affiliates of the Applicant within
the meaning of Section 102.143(g) and, in any event, even if they are
affiliates of the Applicant, the Applicant is still eligible for an
award under the EAJA.
I am of the opinion that the Laborers Pension-Health &
Welfare-Vacation Trust Funds are affiliates of the Applicant within the
meaning of Section 102.143(g), because the record reveals that these
three trust funds created the Applicant, exercise financial and
administrative control over the Applicant, provide the Applicant with
the vast majority of its operating revenues, and otherwise make their
financial resources available to the Applicant. The several
considerations set forth below, in their totality, have led me to this
conclusion.
As described in detail supra, the Applicant is a creature of the
Laborers Pension-Health & Welfare-Vacation Trust Funds; the Applicant
was incorporated by the trustees of those trust funds, on behalf of
those trust funds, for the purpose of administering them. Besides
forming the Applicant, the trustees of the Laborers Pension-Health &
Welfare-Vacation Trust Funds, as described in detail supra, are the
Applicant's Board of Directors and, as such, they exercise financial and
administrative control over the Applicant's affairs.
The Applicant's contention that the Laborers Pension-Health &
Welfare-Vacation Trust Funds "have no control of any nature over the
Applicant" and that the funds' ten trustees "have simultaneous control
of the Applicant and the three trust funds", lacks merit. I recognize
that in general, "(a) trustee is not an agent. An agent represents and
acts for his principal . (a trustee) has no principal." Taylor v.
Davis, 110 U.S. 330, 334-335 (1884); 1 A. Scott, Law of Trust, Sec. 8,
pages 74-79 (3d Ed. 1967) (distinguishing trustees from agents).
However, I am persuaded that the record establishes that at the very
least the Laborers Pension-Health & Welfare-Vacation Trust Funds
exercise indirect control over the Applicant because, as I have found
supra, it was the funds' trustees who created the Applicant and did so
on behalf of the trust funds and for the benefit of the trust funds and
their beneficiaries; and it is the funds' trustees who, on behalf of
the trust funds and for the benefit of the funds and their
beneficiaries, exercise control over the financial and business affairs
of the funds.
Since the trustees of the Laborers Pension-Health & Welfare-Vacation
Trust Funds did not form the Applicant for their own personal benefit as
individuals, but formed it in their capacity as trustees of the Laborers
Pension-Health & Welfare-Vacation Trust Funds for the benefit of those
trust funds, and in view of the trustees' fiduciary responsibilities
toward the beneficiaries of those funds, it is a fair inference that in
exercising their financial and administrative control over the
Applicant, the trustees do so with an eye toward' the welfare of the
Laborers Pension-Health & Welfare-Vacation Trust Funds. Plainly, the
welfare of those trust funds includes the financial solvency of the
Applicant, inasmuch as the Applicant was created by these trust funds to
administer their funds. Indeed, the Laborers Pension-Health &
Welfare-Vacation Trust Funds have in fact placed their financial
resources behind the Applicant by guaranteeing the Applicant's monthly
lease payments for electronic data processing equipment and by loaning
the Applicant almost one-half a million dollars.
The vast majority of the Applicant's revenue is the form of fees paid
to the Applicant by the Laborers Pension-Health & Welfare-Vacation Trust
Funds; during the fiscal year ending May 31, 1988, approximately 67
percent of the Applicant's income was from the fees paid to it by the
Laborers Pension-Health & Welfare-Vacation Trust Funds. In addition to
providing the vast majority of the Applicant's revenue in the form of
administrative fees, the Laborers Pension-Health & Welfare-Vacation
Trust Funds have made their financial resources available to the
Applicant by means of substantial loans and by guaranteeing to a third
party that the Applicant will fulfill a contractual obligation. In this
regard, as described previously, the Laborers Pension-Health &
Welfare-Vacation Trust Funds have made loans totaling $480,000 to the
Applicant, which are still outstanding, and for the past several years
have guaranteed the Applicant's monthly rental payments of $11,200 for
electronic data processing equipment used by the Applicant in the
operation of its business.
It is for all of the above-stated reasons that I am persuaded the
Laborers Pension Trust Fund, the Laborers Health & Welfare Trust Fund,
and the Laborers Vacation Trust Fund are affiliates of the Applicant
within the meaning of Section 102.143(g) of the Board's Rules and
Regulations. See generally, Pacific Coast Metal Trades District Council
(Foss Shipyard), 271 NLRB 1165 (1984), and 295 NLRB No. 24 (June 15,
1989)
Counsel for the General Counsel' further contention that the Laborers
Training Trust Fund is an affiliate of the Applicant within the meaning
of Section 102.143(g), lacks merit. The Laborers Training Trust Fund
was not a party to the creation of the Applicant inasmuch as the
Applicant's Articles of Incorporation provide that, "(t)he members of
(the Applicant) shall be the duly appointed trustees of the (Pension
Laborers-Health & Welf are-Vacation Trust Funds)." Also, unlike the
Laborers Pension-Health & Welfare-Vacation Trust Funds, the Laborers
Training Trust Fund has not loaned the Applicant money or guaranteed its
payments for leased business equipment or otherwise made its financial
resources available to the Applicant. The Laborers Training Trust Fund
is merely one of the Applicant's customers which may at any time chose
to do business with someone else. In contrast, the Laborers
Pension-Health & Welfare-Vacation Trust Funds are realistically
obligated to do business with the Applicant because: it was the
trustees of those trust funds, acting on behalf of those trust funds,
who incorporated the Applicant for the purpose of administering the
Laborers Pension-Health & Welfare-Vacation Trust Funds; it is the
trustees of the Laborers Pension-Health & Welfare-Vacation Trust Funds,
who, as members of the Applicant, are in the loose sense of the word,
the "owners" of the Applicant; it is the Laborers Pension-Health &
Welfare-Vacation Trust Funds who have loaned the Applicant $480,000 and
guaranteed the Applicant's monthly payments for leased office equipment;
and, it is the Laborers Pension Trust Fund which has entered into a
long-term lease with the Applicant for the Applicant's use of office
space in property owned by that fund. In view of these circumstances,
the fact that the persons who were the trustees of the Laborers Training
Trust Fund on May 24, 1988 coincidentally, on that date, were the same
persons as the trustees of the Laborers Pension-Health &
Welfare-Vacation Trust Funds as of that date, is insufficient to
establish that the Laborers Training Trust Fund is an affiliate of the
Applicant within the meaning of Section 102.143(g). I am also persuaded
there has been no showing that the "financial relationship" between the
Applicant and the Laborers Training Trust Fund is such that it would
constitute "special circumstances" so as to make it appropriate, under
Section 102.143(g), to aggregate the Laborers Training Trust Fund's net
worth with that of the Applicant's and its affiliates.
Having found that the Laborers Pension-Health & Welfare-Vacation
Trust Funds are affiliates of the Applicant within the meaning of
Section 102.143(g) of the Board's Rules and Regulations, the remaining
question concerning the Applicant's eligibility for an award of fees and
expenses under the EAJA, is Whether the combined net worth of the
Applicant and its affiliates totals not more than $7 million.
As I have found supra, the net worth of the Applicant and its
affiliates as of the fiscal year ending May 31, 1988 was as follows:
Applicant, $30; Laborers Vacation Trust Fund, $2,529,980; Laborers
Pension Trust Fund, minus $155,378,410; and Laborers Health & Welfare
Trust Fund, minus $2,480,242. Obviously, their combined net worth is
not more than $7 million. Accordingly, having concededly met the other
eligibility requirements, the Applicant is eligible for an award of fees
and expenses under the EAJA.
Assuming I have erred in computing the net worth of the Laborers
Health & Welfare Trust Fund, and its net worth is $5,519,758, as
contended by the General Counsel, and assuming I have also erred in
concluding that the Laborers Training Trust Fund is not an affiliate of
the Applicant and it would otherwise be inappropriate to combine its net
worth with the Applicant's, the combined net worth of the Applicant and
its affiliates would still not exceed $7 million because of the Laborers
Pension Trust Fund's $155,378,410 negative net worth. In so concluding,
I considered and rejected the counsel for the General Counsel's
contention that when combining the net worth of an applicant and its
affiliates, it is unnecessary to include the net worth of those
affiliates who have a negative net worth. The contention that the net
worth of the affiliates herein may be viewed separately, is contrary to
the plain language of Section 102.143(g) of the Board's Rules and
Regulations: "The net worth . . . of the applicant and all of its
affiliates shall be aggregated to determine eligibility." While there
may De good reasons for not following the plain language of the Board's
Rules and Regulations in certain situations, I am not at liberty to
depart from the straightforward and unambiguous language of the Board's
Rules and Regulations requiring the aggregation of the net worth of all
of an applicant's affiliates, where, as here, the General Counsel has
cited no authority or even offered a rationale for deviating from the
Rule's plain language, and there is no obvious reason for concluding
that the Rule does not mean what it says.
The General Counsel's Justification for Issuing the Complaint
On November 1, 1979, when its current collective-bargaining contract
with Local 3 expired, the Applicant, which was at the time engaged in
negotiating the terms of a successor contract with Local 3, unilaterally
instituted its final contract proposal, even though the negotiations had
not reached an impasse. One of these unilateral changes was the
substitution of a 5-day 7-hour workweek for the employees' 4-day 8-hour
workweek. The other unilateral changes instituted at that time were the
elimination of premium pay, the elimination of four paid holidays,
changes in employee eligibility requirements for paid holidays and sick
leave, and a change in policy regarding a laid off employee's
eligibility for recall. On February 26, 1981, in Case 20--CA--14543,
the Board, in an unpublished Order, adopted the findings and conclusions
of an administrative law judge that the Applicant's above described
unilateral conduct violated Section 8(a) (5) and (1) of the Act. To
remedy the Applicant's unilateral changes in the employees' terms and
conditions of employment, he Board ordered the Applicant, among other
things, to restore the status quo ante, until such time as the parties
bargained in good faith for a reasonable time and reached a new
agreement or, in the alternative, reached an impasse, and also ordered
the Applicant to make the employees whole for any loss of earnings they
may have suffered by reason of the Applicant's November 1, 1979
unilateral changes in their terms and conditions of employment.
On August 14, 1981, the Court of Appeals for the Ninth Circuit
entered a judgment enforcing the Board's Order. That judgment summarily
adopted the Board's order of February 26, 1981. Thereafter, for several
years, the Applicant refused to comply with the court's judgment of
August 14, 1981 and its subsequent orders.
It was not until April 17, 1987 that the Applicant fully restored the
status quo ante, as required by the court's judgment and contempt
orders, and it was not until December 1987 that, in compliance with the
court's judgment and contempt orders, that the Applicant made the
employees whole for the losses they incurred as the result of its unfair
labor practices.
In the meantime, in November 1986, after a lengthy hiatus, the
Applicant and Local 3 resumed their negotiations for a successor
collective-bargaining contract. As described in detail in my decision
in the underlying unfair labor practice proceeding, there is no dispute
that after extensive negotiations with Local 3, which resulted in an
impasse, that on July 20, 1987 the Applicant implemented the terms of
its final contract offer which included its proposed 5-day 7-hour
workweek, thereby unilaterally changing its employees' workweek from 4-8
hour days to 5-7 hour days.
On July 22, 1987 Local 3 filed its unfair labor practice charge with
the Board's Regional Director in this case, alleging that the Applicant
had violated Section 8(a) (5) and (1) of the Act by unilaterally
implementing terms and conditions of employment without bargaining to an
impasse with Local 3. The Regional Director, after conducting an
investigation, notified all parties, by letter dated September 23, 1987,
that there was insufficient evidence to establish a violation of the
Act, as alleged, because "there does not appear to be an nexus between
(the Applicant's earlier violations of the Act) and the current failure
to reach agreement." Local 3 filed a timely appeal with the Office of
Appeals of the Board's General Counsel. The Office of Appeals by letter
dated April 18, 1988, informed the parties that Local 3's appeal had
been "sustained" because "it was concluded that the Employer's
declaration of a bargaining impasse and unilateral implementation of
changes in terms and conditions of employment raised Section 8(a) (5)
and (1) issues warranting Board determination based upon record
testimony developed at a hearing before an Administrative Law Judge."
The complaint in the underlying unfair labor practice proceeding was
issued by the General Counsel on May 24, 1988, and it alleged, in
substance, that on July 20, 1987 the Applicant changed the workweek of
its employees represented by Local 3 from a 32-hour workweek, comprised
of 4-8 hour days, to a 35-hour workweek, comprised of 5-7 hour days, and
further alleged that by engaging in this conduct the Applicant violated
Section 8(a) (5) and (1) of the National Labor Relations Act, because
this change in the employees' terms and conditions of employment was
made unilaterally and in the absence of "a valid impasse." In support of
this allegation, the General Counsel did not contend that the contract
negotiations between the Applicant and Local 3 had not reached impasse
by July 20, 1987, when the Applicant unilaterally imposed the terms of
its last contract offer, including the 40-hour workweek of 5-8 hour
Days. Rather, it was the General Counsel's position that the bargaining
impasse which existed on that date was not a valid impasse because the
Applicant's prior unremedied unlawful unilateral changes found by the
Board in Case 20--CA--14543 tainted the impasse, thus, the General
Counsel contended that the Applicant was not privileged to unilaterally
implement the workweek provision of its last contract offer. More
specifically, it was the position of the General Counsel that the
bargaining negotiations had not reached impasse by July 20, 1987 because
of these factors: The Applicant previously violated Section 8(a) (5) of
the Act in 1979 by unilaterally changing the employees' terms and
conditions of employment in several different respects, including their
workweek from 4-8 hour days to 5-7 hour days, and subsequently for
several years refused to comply 'with the judgment and orders of the
court requiring it to remedy those unfair labor practices by restoring
the status quo ante; the Applicant fully restored the status quo ante,
as required by the court's judgment and contempt orders, only a little
more than 3 months before July 20, 1987; and, it was not until
approximately 5 months after July 20, 1987 that the Applicant, in
compliance with the court's judgment and contempt orders, made the
employees whole for the losses they incurred as the result of the
Applicant's unfair labor practices.
I rejected the General Counsel's position because I found that the
record failed to establish that a cause of the parties' bargaining
impasse was the Applicant's previous unlawful unilateral changes in the
employees' terms and conditions of employment and, in defiance of the
court's judgment and contempt orders, its delay in remedying those
changes. Neither the General Counsel nor the Charging Party excepted to
my decision. Subsequently, the Board, in an unpublished order, adopted
my findings and conclusions that the Applicant had not engaged in unfair
labor practices in violation of the Act and dismissed the complaint in
its entirety.
The EAJA provides that a prevailing party may receive an award for
fees and expenses incurred in connection with an adversary adjudication
involving an administrative agency of the federal government, unless it
is shown that the position of the agency was "substantially justified"
or that "special circumstances" make an award unjust. Here, the General
Counsel contends that the agency's position in the underlying unfair
labor practice proceeding was substantially justified, even though it
was judged to be without merit. The law is settled that substantially
justified means "justified to a degree that could satisfy a reasonable
person," or having a "reasonable basis both in law and fact." Pierce v.
Underwood et al., 109 S.Ct. 2541, 2550 (1988). I am of the opinion that
the General Counsel was not substantially justified in issuing the
complaint in this proceeding.
Regarding the General Counsel's contention that the parties'
bargaining impasse as of July 20, 1987 was tainted by the Applicant's
failure to rescind its prior illegal unilateral changes of the
employees' terms and conditions of employment, the law is settled that
when an employer implements unlawful unilateral changes in employees'
terms and conditions of employment, the employer "violates the Act even
if it then enters into bargaining on that subject, so long as it has
failed in the interim to reinstate the condition it has unlawfully
discontinued." American Commercial Lines, Inc., 291 NLRB No. 143 slip
op. page 28 (December 15, 1988), citing, NLRB v. Allied Products Corp,
548 F.2d 644, 652 (6th Cir. 1977). If, however, after implementing the
illegal unilateral changes the employer continues to bargain with the
union which represents its employees and an impasse in bargaining
occurs, the impasse is considered valid even though the employer in the
interim failed to rescind the unilateral changes and reinstate the
conditions it had previously unlawfully discontinued. Dependable
Building Maintenance Co., 274 NLRB 216, 219 (1985), supp. dec., 276 NLRB
27 (1985); Eagle Express Company, 273 NLRB 501 (1984); J.D. Lunsford
Plumbing, Heating & Air Conditioning, Inc., 254 NLRB 1360 (1981). See
also, NLRB v. Cauthorne, 691 F2d 1023, 1026 (C.A.D.C.,1982) ("where an
employer and a union have bargained in good faith, despite the
employer's prior unilateral changes in wages and conditions of
employment, the employer's liability for the unlawful unilateral changes
terminates on the date when the parties execute a new agreement or reach
a lawful impasse."). But, if there is a showing that the prior
unremedied unlawful unilateral conduct was a factor (not necessarily the
sole one) that caused the bargaining impasse, it taints the impasse and
precludes the employer from relying upon the impasse as a defense to its
unilateral change in the employees' terms and conditions of employment.
See, Industrial Union of Marine and Shipbuilding Workers of America,
AFL-CIO v. NLRB (Bethlehem Steel Company), 320 F.2d 615
(C.A.D.C.,1973), Dec. on remand, Bethlehem Steel Company, 147 NLRB 977
(1964). In the instant case, however, the record fails to establish
that when the General Counsel issued the complaint herein that she had a
reasonable factual Basis for believing that the Applicant's failure to
rescind its prior illegal unilateral changes in the employees' terms and
conditions of employment and restore the status quo ante, despite the
several court orders that it do so, was a cause of the parties' July 20
bargaining impasse.
The only evidence in the possession of the General Counsel which
colorably suggested that the Applicant's failure to rescind those
unilateral changes, despite the several court orders that it do so,
contributed to the eventual impasse in the Applicant's contract
negotiations with Local 3, was the following: Local 3's request and the
Applicant's refusal in January 1987, at the outset of the contract
negotiations, to discuss the Applicant's legal obligation to rescind the
illegal unilateral changes it had made in the employees' working
condition; and, Local 3's statements made to the Applicant at several
subsequent negotiation meetings that it would be easier for Local 3 to
reach agreement on the terms of a new contract with the Applicant if the
parties sit down and "resolve" the issues concerning the Applicant's
legal obligation to rescind the illegal unilateral changes it had made
in the employees' condition of employment. However, the other evidence
submitted to the General Counsel during the investigation of Local 3's
unfair labor practice charge, and the failure of Local 3 to supply
certain evidence in support of chat charge, should have demonstrated
convincingly to the General Counsel that the Applicant's lengthy delay
in rescinding the illegal unilateral changes it had made in the
employees' working condition, in derogation of several court orders to
rescind those changes and restore the status quo ante, played no part in
the bargaining impasse. In this regard, the record shows that at the
time of the issuance of the complaint in this proceeding and. its
prosecution, the General Counsel knew the following.
Three months prior to July 20, 1987, the date on which the Applicant
implemented its contract proposal providing for a 5-day 35-hour
workweek, the Applicant on April 17, 1987 rescinded all of the illegal
unilateral changes it had made in the employees' working conditions and,
in compliance with its legal obligation, restored the status quo ante
including the restoration of the employees' 4-day 32-hour workweek.
During the several bargaining sessions which pre-dated April 17,
1987, Local 3 and the Applicant were far apart concerning their
respective workweek proposals; Local 3 continually proposed that the
employees work a 4-day 32-hour workweek, as provided in the parties'
last collective-bargaining agreement, and the Applicant continually
proposed that they work a 5-day 40-hour workweek.
Between April 17, 1987, when the Applicant rescinded the illegal
unilateral changes it had made in the employees' working conditions and
restored the status quo ante, and July 20, 1987, when the Applicant
implemented its 5-day 35-hour workweek proposal, the parties'
negotiators held four bargaining sessions, during which they discussed
their respective bargaining proposals and positions at length and
reached agreement on a substantial number of issues which had previously
divided them. However, they remained as far apart as ever on the major
issue of the employees' workweek. The Applicant, as described supra,
previously had been demanding a 5-day 40-hour workweek, but now proposed
a 5-day 35-hour workweek for the first year of the parties' contract,
and a 5-day 37-1/2-hour workweek for the remainder of the contract's
term. Local 3, however, refused to budge from the position it had held
since the start of the negotiations in December 1986; a 4-day 32-hour
workweek, as provided in the parties' most recent collective-bargaining
agreement and in Local 3's current collective-bargaining agreements with
other employers in the industry. During one of the bargaining sessions
held between April 17 and July 20, 1987, Local 3's negotiator explained
to the Applicant's negotiator that one of the reasons for Local 3's
insistence on a 4-day 32-hour workweek was that since Local 3's
collective-bargaining contracts with other employers in the industry
contained this provision, Local 3 felt it would be adversely affected if
it agreed to a more favorable provision in its negotiations with the
Applicant.
In support of its unfair labor practice charge, Local 3 did not
supply the General Counsel with evidence that during the period which
post-dated April 17, 1987, that Local 3's conduct at the bargaining
table and its conduct in rejecting the Applicant's final contract
proposal was influenced by the Applicant's delay in rescinding the
illegal unilateral changes it had made in the employees' working
conditions and restoring the status quo ante. I have presumed that if
Local 3 had presented such evidence to the General Counsel in the form
of statements by officials of Local 3 or employees or of Local 3's
literature addressed to the employees or third parties, that Counsel for
the General Counsel would have presented this evidence in the underlying
unfair labor practice proceeding.
The above-described considerations, in their totality, have persuaded
me that when the General Counsel issued the complaint in the underlying
unfair labor practice proceeding, the General Counsel did not have a
basis for reasonably believing that the impasse in bargaining between
Local 3 and the Applicant, which existed on July 20, had been caused in
whole or in part by the Applicant's delay in complying with its legal
obligation to rescind the illegal unilateral changes it had made in the
employees' working conditions and to restore the status quo ante.
Rather, the evidence which the General Counsel possessed, particularly
the evidence describing how Local 3 had conducted itself at the
bargaining table during the 3-month period after the Applicant had
rescinded its illegal unilateral changes and restored the status quo
ante, clearly warranted the inference that the Applicant's delay in
rescinding the unilateral changes and restoring the status quo ante had
absolutely nothing whatever to do with the parties' bargaining impasse.
The reasonable of this inference should have been even more readily
apparent to the General Counsel because of Local 3's failure to furnish
evidence that Local 3's conduct at the bargaining table subsequent to
April 17 and its July 16, 1987 rejection of the Applicant's final
contract proposal, was conduct influenced by the Applicant's delay in
complying with its legal obligation to rescind the illegal unilateral
changes it had made in the employees' working conditions, or that Local
3 believed this to have been the case.
The General Counsel's contention that the parties' bargaining impasse
herein was tainted by the Applicant's failure to make the employees
whole for the loss of earnings they had suffered because of the
Applicant's illegal unilateral changes lacks a reasonable basis in law.
Counsel for the General Counsel cites no authority and there is none
which, expressly or by implication, holds that a bargaining impasse
cannot justify unilateral changes in employees' working conditions, if
one of the reasons for the impasse was the employer's failure to comply
with that part of a Board order, in an unfair labor practice case, which
requires the employer to make the employees whole for their loss of
earnings. One of the reasons for the lack of authority is that an
employer, who has been found to have violated the Act by unilaterally
changing his employees' working conditions and because of this has been
ordered by the Board to, among other things, make the employees whole
for the loss of earnings they may have suffered, has the right under the
Board's Rules and Regulations to litigate, in a Board-conducted backpay
hearing, the amount of backpay claimed. This is exactly what the
Applicant did in the present case. /8/ Under these circumstances, the
Applicant was not obligated to negotiate with Local 3 about the amount
of backpay it owed under the terms of the Board's make whole order, /9/
instead of exercising its right under the Board's Rules and Regulations
to litigate this issue in a Board-conducted backpay proceeding.
Accordingly, even if a contributing cause of the eventual impasse in the
parties' bargaining negotiations was the Applicant's refusal to discuss
with Local 3, as a part of their contract negotiations, its legal
obligation to make whole the employees for the earnings they lost
because of the Applicant's unfair labor practices, the General Counsel
had no reasonable basis in law for taking the position that it tainted
the impasse.
In any event, the General Counsel failed to establish that when the
complaint issued, the General Counsel had a reasonable factual basis for
believing that the Applicant's failure to make the employees whole for
their loss of earnings was one of the factors which contributed to the
bargaining impasse. As I have found supra, the evidence in the
possession of the General Counsel overwhelmingly indicated that the sole
cause of the parties' impasse in bargaining was their irreconcilable and
intransigent bargaining positions concerning the employees' workweek,
which because of this warranted the inference that even absent the
Applicant's failure to make the employees whole by July 20, the parties
would still have been at an impasse on that date. This is vividly
demonstrated by the fact that even after the Applicant in December 1987
made the employees whole for their loss of earnings, in compliance with
the orders of the Board and court, the contract negotiations still
remained hopelessly deadlocked for the same reasons---the parties'
irreconcilable differences over the employees' workweek.
Lastly, I considered the Counsel for the General Counsel's argument
that, "(i)n view of the (Applicant's) prior commission of unfair labor
practices of the same kind as alleged in the charge herein and its
deliberate refusal to comply with the Board and court orders over a
period of several years, it was reasonable (for the General Counsel) to
conclude that such conduct normally has an impact on the bargaining
process and is likely to affect the conduct of the parties at the
bargaining table." I recognize, as Counsel for the General Counsel
suggests, that there are circumstances where the nature of an employer's
unfair labor practices will so undermine a union's bargaining position
so as to warrant the reasonable inference that a good-faith-bargaining
impasse could not thereafter take place, unless the employer first
remedied its illegal conduct. Here, however, it is undisputed that the
General Counsel knew that 3 months prior to the disputed impasse in
bargaining, the Applicant had remedied the most significant aspects of
its unfair labor practices by rescinding the illegal unilateral changes
it had made in its employees working conditions and by restoring the
status quo ante. In any event, there is no per se rule or conclusive
presumption that an employer's unfair labor practices automatically
precludes the possibility of meaningful negotiations and prevents the
parties from reaching a good-faith impasse. NLRB v. Cauthorne, 691
F.2d 1023, 1025 (C.A.D.C.,1982). In the instant case, for the sake of
argument, assuming that on its face the employer's unfair labor
practices and its deliberate refusal to comply with the orders of the
Board and court for a period of several years, was the type of
misconduct reasonably calculated to have led the General Counsel to
believe that unless fully remedied such conduct would preclude
good-faith bargaining from occurring, it did not mean that the General
Counsel was privileged to shut her eyes to what had in fact occurred
during the parties' contract negotiations. It was only by ignoring what
in fact had taken place during the parties' contract negotiations that
the General Counsel could have reasonably believed that the Applicant's
prior unfair labor practices and its contemptuous refusal to comply with
the court's orders to remedy that conduct, contributed to the parties'
bargaining impasse. For, as I have found supra, the evidence which the
General Counsel possessed or, as described infra, would have possessed
in greater detail, if she had not failed to accept the Applicant's offer
to submit it during the investigatory stage of this case, demonstrated
overwhelmingly to the General Counsel that the sole cause of the
parties' impasse was the irreconcilable and intransigent bargaining
positions taken by the parties concerning the employees' workweek, and
that because of this, even absent the Applicant's unfair labor practices
and its contemptuous refusal to remedy those practices, the parties'
contract negotiations would still have been at impasse during the time
material.
In finding, as described supra, that the General Counsel had
knowledge of what occurred during the collective-bargaining negotiations
between the Applicant and Local 3, I relied upon the September 9, 1987
position letter to the Board's Regional Director from the Applicant's
attorney, Robert W. Tollen, and the uncontradicted testimony of Robert
Russell, the Applicant's negotiator, which was given by Russell when he
testified on behalf of the Applicant during the unfair labor practice
proceeding. My reason for attributing to the General Counsel the
knowledge of Russell's testimony concerning the parties' contract
negotiations, follows.
Shortly after Local 3 on July 22, 1987 filed its unfair labor
practice charge, Attorney Tollen notified the Board's Regional Office
that the Applicant was prepared to allow the Board agent assigned to
investigate the charge to take statements from the Applicant's
negotiators about the contract negotiations between the Applicant and
Local 3. In response Attorney Tollen was informed that the Regional
Office personnel did not desire to interview the Applicant's negotiators
because the General Counsel did not dispute the Applicant's assertion
that the contract negotiations had reached an impasse during the time
material to the charge. Thereafter, after considering the evidence
submitted by Local 3 in support of its charge and the information set
forth in Attorney Tollen's September 9, 1987 position letter, the
Board's Regional Director notified all parties, by letter dated
September 23, 1987, that there was insufficient evidence to establish a
violation of the Act, as alleged, because "there does not appear to be a
nexus between (the Applicant's earlier violations of the Act) and the
current failure to reach agreement." Local 3 appealed the Regional
Director's dismissal to the General Counsel's Office of Appeals, which
during the latter part of April 1988 notified the Applicant that Local
3's appeal had been sustained and that the case had been remanded to the
Board's Regional Director with instructions to issue a complaint, absent
a settlement. On May 2, 1988 Attorney Tollen, on behalf of the
Applicant, wrote the Regional Director, in pertinent part, as follows:
/10/
We are in receipt of the letter of April 18, 1988 from the
General Counsel's Office of Appeals directing you to issue a
complaint in the above matter. The General Counsel is in error.
She does not have substantial justification for the issuance of a
complaint. We ask that no complaint issue. In the event that a
complaint does issue, and we are ultimately successful, we will
seek attorney's fees, pursuant to the Equal Access to Justice Act,
5 U.S.C. Secs.504 et seq.
Your office has provided us with the cases that were cited by
the Office of Appeals. They are Olive Knoll Farms, Inc., 223 NLRB
260, 265 (1976); Bethlehem Steel, Inc., 147 NLRB 977 (1964); and
M & C Vending Co., 278 NLRB 47 (1986). Those cases stand for the
obvious legal principle that "there can be no legally
reorganizable impasse . . . if a cause of the deadlock is the
failure of one of the parties to bargain in good faith."
Industrial Union v. NLRB, 320 F.2d 615, 621 (3rd Cir. 1963). As
the Administrative Law Judge wrote in Wayne's Olive Knoll Farms:
"A party cannot parlay an impasse resulting from it's own
misconduct into a license to make unilateral changes." 223 NLRB at
265. We acknowledged that principle in our letter to you of
September 9, 1987, at page 5.
The General Counsel does not have substantial justification for
concluding that the Laborers Fund Administrative Office's prior
failures to bargain in good faith were the cause of the impasse
reached in July, 1987. The Office of Appeals' letter recites that
issues have been raised "warranting Board determination based upon
record testimony developed at a hearing before an Administrative
Law Judge." That statement is wrong. The General Counsel does not
know whether such issues have been raised. Region 20 did not
interview the Administrative Office's witnesses. Please see page
4 of my letter of September 9, 1987, noting that the
Administrative Office was prepared to give statements, but that
Region 20 did not want them. Section 10056.4 of the Casehandling
Manuel (sic) recites that the charged party should be contacted if
the investigation of the charging parties' evidence points to a
prima facie case. We do not believe that the evidence submitted
by Local 3 pointed to a prima facie case that the prior failures
to bargain in good faith caused the July, 1987 impasse. Even if
that evidence had pointed to a prima facie case, that case might
have been dispelled if Region 20 had interviewed the
Administrative Office's witnesses.
The General Counsel's wish to develop record testimony does not
satisfy the substantial justification standard. By directing the
issuance of a complaint without interviewing the charged party's
witnesses, the General Counsel has denied herself the opportunity
to determine that there is substantial justification for the
issuance of a complaint.
The Regional Director did not respond to this letter and, prior to
the issuance of the complaint on May 24, 1988, did not afford the
Applicant with an opportunity to present its evidence concerning the
parties' contract negotiations, by either interviewing the Applicant's
witnesses concerning those negotiations or by having Attorney Tollen
submit the witnesses' statements.
The May 24, 1988 complaint notified the parties that the hearing in
the matter would be held before an administrative law judge on August 2,
1988, but due to conflicts in their schedules the attorneys for the
Applicant and Local 3 asked that the matter be rescheduled to another
date and these requests were granted, and the hearing was eventually
rescheduled to be held August 30, 1988. /11/ Prior to that date, on
August 12, 1988, the Attorney assigned to prosecute the case for the
General Counsel wrote Attorney Tollen, as follows.
I have been assigned to represent the General Counsel of the
National Labor Relations Board at the hearing in the
above-captioned case. It has come to my attention that on May 2,
1988 you sent a letter to Robert H. Miller, Regional Director,
Region 20 asserting that your client had not been afforded the
opportunity to make evidence available to the Regional Office
during the investigation in the above-captioned case.
It is the policy of this agency to afford the Charged Party an
opportunity to make available to the Regional Office evidence
concerning the factual issues raised during the investigation of
an unfair labor practice charge. Accordingly, the Regional Office
now desires to afford Respondent an opportunity to make available
evidence in the above-captioned case. Such evidence will be
carefully considered by the Regional Office. Moreover, the
Regional Office will inform the office of Appeals of any evidence
which Respondent may present. As you know, the Office of Appeals
made the decision to issue the Complaint in the above-captioned
case.
It is requested that you please advise the Regional Office in
writing by the close of business on August 18, 1988, whether
Respondent desires to make available evidence in the
above-captioned case. In the event that I do not hear from you by
that date, it will be assumed that your client does not desire to
present evidence. If your client requires additional time to make
a decision, you may request an extension of the due date prior to
August 18, 1988.
On August 16, 1988 Attorney Tollen, by letter, responded to Counsel
for the General Counsel's letter,' as follows:
I am in receipt of your letter of August 12, 1988, which
strikes me as insincere. If I am wrong, then I apologize in
advance, but the fact is that the Regional Office first issued a
complaint and then waited more than three months to react to my
letter of May 2, leaving only 2 weeks remaining before the
hearing. Further, the reason a Respondent presents his evidence
to the Regional Office is to convince the Regional Office that no
complaint should issue. Otherwise, one would not present his
evidence to his adversary. The April 18, 1988 letter from the
Office of Appeals remanded the case to the Regional Director with
"instructions to issue (a) complaint." I find nothing in the
letter that left the Regional Director with discretion to take
evidence from the Respondent and then to decide not to issue a
complaint. Nor does your letter of August 12 tell me that the
Office of Appeals has joined in your request for additional
evidence or authorized the Regional Director to reconsider the
issuance of a complaint. Indeed, your statement that any evidence
Respondent offers "will be carefully considered by the Regional
Office" appears to be carefully crafted so as not to speak on
behalf of the Office of Appeals. So does your statement that "the
Regional Office will inform the Office of Appeals of any evidence
which Respondent may present."
The proper way to have gone about this matter initially would
have been for the Office of Appeals to have reversed the Regional
Director's decision not to issue a complaint and to have directed
the Regional Director to resume his investigation. You have not
advised me that the Office of Appeals will now allow the Regional
Director to withdraw the complaint and to reevaluate whether or
not a complaint should issue, based on a completed investigation.
Neither the Counsel for the General Counsel nor the Regional Director
responded to this letter.
During the subsequent unfair labor practice hearing the Counsel for
the General Counsel, as had been represented to the Applicant's Attorney
during the investigation of the case, did not contest the Applicant's
contention that the collective-bargaining contract negotiations between
the Applicant and Local 3 had reached a state of impasse during the time
material. Rather, Counsel for the General Counsel took the position
that the impasse was not a valid one because it was tainted by the
Applicant's prior unfair labor practices. As a result, the testimony of
Robert Russell, the Applicant's negotiator, which described the parties'
contract negotiations, was not contradicted by the General Counsel,
except in one respect; Russell's testimony about the discussion between
himself and Local 3's negotiator concerning the Applicant's prior unfair
labor practices.
In view of the Applicant's request that the General Counsel interview
its negotiator concerning the contract negotiations between Local 3 and
the Applicant, for the specific purpose of affording the Applicant an
opportunity to demonstrate to the General Counsel that there was no
"substantial justification" for the General Counsel to believe that the
Applicant's prior unfair labor practices contributed to the parties'
bargaining impasse, and in view of the General Counsel's failure to
interview the Applicant's negotiator or to otherwise, in lieu of that,
request that the Applicant's Attorney submit detailed evidence of those
negotiations, and in view of the fact that this conduct was contrary to
Section 101.4 of the Board's Statement of Procedure and contrary to
customary operating procedure, and considering that the General Counsel
has offered no good reason for deviating from the General Counsel's
usual policies, I find it is appropriate to attribute to the General
Counsel the knowledge of what occurred during the contract negotiations
between the Applicant and Local 3, as described by the Applicant's
negotiator Russell when he testified during the unfair labor practice
hearing. Presumably if the General Counsel had followed the General
Counsel's usual practices and procedures during the investigation of
Local 3's charge and had interviewed Russell at that time, as requested
by the Applicant, or in lieu of that, instructed the Applicant's
Attorney to submit a detailed statement describing the parties' contract
negotiations, Russell or the Applicant's Attorney would have submitted
to the General Counsel the same detailed description of the parties'
contract negotiations as contained in Russell's unfair labor practice
hearing testimony. As noted supra, his testimony in all but one respect
was not disputed by Local 3's negotiator.
To sum up, as described supra, Attorney Tollen's letters to the
Board's Regional Office of September 7, 1987 and May 2, 1988 placed the
General Counsel on notice that the Applicant was prepared to and desired
to present detailed evidence concerning the collective-bargaining
negotiations between the Applicant and Local 3, for the specific purpose
of showing the General Counsel that there was no substantial
justification for the General Counsel to believe that the Applicant's
prior unfair labor practices contributed to the impasse in those
negotiations. However, because apparently the General Counsel, as
evidence by the April 18, 1988 Office of Appeals' letter, had "concluded
that the (Applicant's) declaration of a bargaining impasse and
unilateral implementation of changes in the terms and conditions of
employment, raised Section 8(a) (5) and (1) issues warranting Board
determination based upon record testimony developed at a hearing before
an Administrative Law Judge," the General Counsel chose to shut her eyes
to what had in fact occurred during the parties' contract negotiations,
and in disregard of the General Counsel's usual investigatory practices
and procedures issued the complaint without affording the Applicant an
opportunity to present its detailed evidence of the parties' contract
negotiations, which would have shown the General Counsel that the
General Counsel was without substantial justification in issuing the
complaint.
In my opinion where, as in the instant case, the charged party
specifically notified the General Counsel of the specific evidence it
desired to submit, specifically informed the General Counsel that after
considering that evidence it would be readily apparent to the General
Counsel that there was no "substantial justification" for the issuance
of the complaint, and the General Counsel without good reason and in
violation of the Board's usual practices and procedures went ahead and
issued the complaint without affording the Applicant an opportunity to
submit that evidence, and where, as here, the record further reveals
that if the General Counsel had followed the usual practices and
procedures and considered the Applicant's evidence, that the evidence
would have demonstrated to the General Counsel. that there was no
substantial justification for the issuance of the complaint, I am
persuaded that knowledge of such evidence should be attributed to the
General Counsel and that, under such circumstances, it would be contrary
to the policies underlying the EAJA to find that the General Counsel had
substantial justification in issuing the complaint.
I have considered that in Iowa Parcel Service /12/ the General
Counsel's investigation of an unfair labor practice charge was
inadequate and violated the Board's procedures because of the General
Counsel's failure to ascertain the charged-employer's evidence or
position, yet the Board, with court approval, in the subsequent EAJA
proceeding rejected the employer-applicant's contention that had there
been an adequate investigation, the General Counsel would not have had
sufficient information in his possession to justify the issuance of the
complaint, where the record revealed that the General Counsel had
sufficient information in his possession to justify the issuance of the
complaint. The instant case, however, differs significantly from Iowa
Parcel Service because unlike that case the Applicant in the instant
case specifically notified the General Counsel of the specific type of
evidence it desired to present and notified the General Counsel that
this evidence would demonstrate to the General Counsel that there was no
"substantial justification" for the issuance of a complaint, and the
record further shows that in the instant case, if the General Counsel
had afforded the Applicant the opportunity to submit the evidence it
desired to submit, that the evidence would have demonstrated to the
General Counsel that there was no substantial justification for the
issuance of the complaint.
I agree with the Applicant that the General Counsel's belated
invitation to the Applicant to submit its detailed evidence of the
negotiations, issued approximately 2-1/2 months after the issuance of
the complaint and virtually on the eve of the scheduled unfair labor
practice hearing, came too late because the conduct of the General
Counsel was reasonably calculated to lead the Applicant's Attorney to
believe that to submit his evidence at that late date would have been an
exercise in futility. Moreover, when the Applicant's Attorney responded
to the Counsel for the General Counsel's invitation by inquiring
whether, after considering the evidence, the Board's Regional Director,
under whose name the complaint had issued, would have the authority to
withdraw the complaint, the Applicant's Attorney received no answer from
either the Counsel for the General Counsel or any other representative
of the General Counsel. Absent such an assurance or, at the very least,
some assurance that the complaint would be withdrawn if the evidence
submitted warranted its withdrawal, it is not surprising that the
Applicant's Attorney failed to submit his evidence to the Counsel for
the General Counsel on the eve of the scheduled unfair labor practice
hearing.
If I have erred in imputing to the General Counsel the knowledge of
Russell's unfair labor practice testimony concerning the contract
negotiations, I would still conclude that Attorney Tollen's September 7,
1987 position letter to the Regional Director, by itself, contained
sufficient factual information about the parties' negotiations so as to
have placed the General Counsel on notice that the Applicant's prior
unfair labor practices played no part in the parties' current bargaining
impasse and that the sole cause of the impasse was the parties'
intransigent bargaining position over the subject of the employee
workweek. /13/ Attorney Tollen's position letter informed the Regional
Director of the following pertinent facts: 3 months before the July 20,
1987 bargaining impasse, the Applicant had rescinded all of its illegal
changes in the employees' working conditions and had completely restored
the status quo ante; during this 3 month period Local 3 and the
Applicant had held several lengthy bargaining sessions and, as a result
of those sessions, the parties had reached agreement on virtually all of
the issues which had kept them from reaching agreement, except for the
issue of the employees' workweek; the parties were hopelessly
deadlocked over the issue of the employees" workweek and had refused to
compromise on that subject both prior to July 20, 1987 and during the
negotiations held after July 20, 1987; and, Local 3 had explained to
the Applicant that it was not possible for Local 3 to compromise its
bargaining position concerning the employees' workweek because it was
afraid that its collective-bargaining contracts with other employers in
the industry, which included the workweek provision it was proposing,
would be adversely affected if it comprised on that issue during its
negotiations with the Applicant. These representations, contained in
Attorney Tollen's position letter, were not contradicted by Counsel for
the General Counsel when they were presented during the unfair labor
practice hearing. In my opinion, they establish the General Counsel had
no reasonable factual basis for believing that the Applicant's prior
unfair labor practices contributed to the impasse in bargaining which
had occurred during the time material to this case.
In support of the contention that the General Counsel had a
reasonable factual basis when she issued the complaint for believing
that the Applicant's illegal unilateral changes in the employees'
working conditions contributed to the parties' bargaining impasse, the
General Counsel relies upon the Board's decisions in M & C Vending Co.,
Inc., 278 NLRB 320, 325 (1986); Wayne's Dairy, 223 NLRB 260, 265
(1976), and Bethlehem Steel Company, 147 NLRB 977 (1964). Counsels for
the General Counsel in this proceeding and in the unfair labor practice
proceeding merely cited these cases and made no attempt to compare them
factually with the instant case to persuade me that it was reasonable
for the General Counsel to rely upon them. This is not surprising since
M & C Vending and Wayne's Dairy do not remotely resemble the instant
case factually; they differ materially from the instant case in so many
significant respects that I will not burden this already over-long
decision by summarizing their pertinent facts. Bethlehem Steel,
although factually closer to the instant case, is, as I noted in my
decision in the unfair labor practice proceeding, factually
distinguishable in significant respects, including the fact that there
the employer had not rescinded its prior illegal changes in its
employees' working conditions and restored the status quo ante, by the
date it was claiming that a bargaining impasse justified its subsequent
unilateral changes. Here, as described in detail supra, the General
Counsel when she issued the complaint knew the following: the
Applicant's unfair labor practices had been rescinded and the status quo
ante fully restored, as long as 3 months prior to the disputed impasse;
knew that the parties had held lengthy contract negotiations during that
interim and continuing thereafter; knew that during those negotiations
Local 3 remained unyielding in its position concerning the employees'
workweek; and, knew that Local 3 refused to compromise its position on
that subject, which position it had continually maintained since the
start of the negotiations several months earlier. I recognize, as noted
by Counsel for the General Counsel, that "no two cases are alike; no
single precedent can fix the answer to the next," but I am persuaded
that the General Counsel was unreasonable in relying on Bethlehem Steel
and the other cited cases as authority for the issuance of the complaint
in this case
It is for all of the reasons set forth above, that I find the General
Counsel was not substantially justified in initiating and pursuing the
unfair labor practice proceeding herein against the Applicant.
The Applicable Hourly Rate for Attorney's Fees
The EAJA, Section 5 U.S.C. 504(b) (1) (A), provides that "attorney or
agent fees shall not be awarded in excess of $75 per hour, unless the
Agency determines by regulation that an increase in the cost of living
or a special factor, such as the limited availability of qualified
attorneys or agents for the proceeding involved, justifies a higher
fee." Section 102.145 of the Board's Rules limits recoverable fees to
$75 per hour and Section 102.146 provides that in order to increase the
maximum fee, that any person may file a petition with the Board for
rulemaking to increase the maximum fee and that the petition should
state why higher fees are warranted by an increase in the cost of living
or a special factor such as the limited availability of qualified
attorneys or agents for the proceedings involved.
The hourly rates charged the Applicant for the services of the
partner of the law firm, who represented the Applicant throughout this
case, ranged from $185 to $210. The hourly rate of the attorneys who
assisted him, ranged from $95 to $140. The Applicant contends that "the
$75 rate is totally out of touch with reality" and urges that it be
compensated at the actual rates charged by its attorneys or, at the very
least, the rate of $75 an hour be adjusted to take into account the
increase in the cost of living. However, the Applicant has not made a
request to the Board, by application for rulemaking or otherwise, for an
increase in the allowable hourly rate of $75. Absent such a request and
a favorable ruling by the Board, I am without authority to consider the
Applicant's request for attorney's fees higher than the maximum provided
by the EAJA and the Board's Rules. Accordingly, I shall compute the
Applicant's attorney's fees herein at the hourly rate of $75.
The Applicant's Claim for Fees and Expenses Incurred Prior to the
Issuance of the Complaint
As described supra, the unfair labor practice charge in the
underlying unfair labor practice proceeding was filed by Local 3 on July
22, 1987, and on May 24, 1988 the General Counsel issued the complaint.
Counsel for the General Counsel contends that all of the Applicant's
fees and expenses incurred prior to the issuance of the complaint are
not compensable under the EAJA, because they were not incurred in
connection with the General Counsel's prosecution of the complaint, but
were incurred as a part of the Regional Director's investigation of
Local 3's charge.
Counsel for the Applicant contends that although generally fees and
expenses incurred before the issuance of a complaint issued in an unfair
labor practice proceeding are not compensable under the EAJA, that those
incurred in the instant case from September 2, 1987 through September
22, 1987, in connection with the Applicant's September 9, 1987 position
letter to the Board's Regional Director, are compensable because the
investigation of the facts and the legal research which went into the
preparation of that position letter were both useful and of the type
ordinarily necessary for the Applicant to advance its case during the
subsequent adversary adjudication. The facts pertinent to this issue
are as follows.
Early in September 1987, Attorney Tollen, the Applicant's lawyer, was
notified by Regional Office personnel that it appeared to the Board's
Regional Office that Local 3's charge was meritorious. Attorney Tollen
was also given the factual and legal basis for this belief, and invited
to submit a statement of position. The theory of the alleged violation,
as explained to Attorney Tollen, was the same theory as was ultimately
relied upon by the General Counsel in the issuance of and the
prosecution of the complaint. Thereafter, during September 1987, in
response to the invitation of the Board's agent to submit a statement of
position to the Board's Regional Director, the Applicant's lawyer did
the following: Analyze the cases relied upon by the Board's Regional
Office, which were essentially the same cases relied upon by the Counsel
for the General Counsel during the prosecution of the complaint;
researched the circumstances under which a prior unfair labor practice,
including one still unremedied, might taint an otherwise valid
bargaining impasse; interviewed the employees of the management
consultant firm who, on behalf of the Applicant, were negotiating with
Local 3, so as to learn more about the precise facts as they related to
this legal research; and, had further discussions with the personnel of
the Board's Regional Office about the legal theories involved.
Based upon the aforesaid investigation of the facts and law, Attorney
Tollen prepared an 8-page position letter which, on September 9, 1987,
he submitted to the Board's Regional Director. This letter sets forth
the Applicant's position as to the facts and the law, and was a response
to the contention of the Board's Regional Office personnel that the
bargaining impasse between Local 3 and the Applicant was not a valid one
because it had been tainted by the Applicant's prior unremedied unfair
labor practices. /14/ The letter was written for several reasons: To
persuade the Board's Regional Director not to issue a complaint; and,
to collect together, organize and preserve the analysis of the
Applicant's defenses for use in the event a complaint issued.
Ultimately, the investigation of the facts, the legal research, and the
analysis of that research as applied to the facts, all of which went
into the September 9, 1987 position letter, formed the basis for the
Applicant's successful defense against the General Counsel's prosecution
of the complaint; the record shows that in trying its case before me
during the unfair labor practice hearing, the Applicant used virtually
all of this information--factual and legal--in presenting its
case-in-chief. In view of the above-described factors, I agree with the
Applicant, that the time spent by the Applicant's lawyer in preparing
the September 9, 1987 position letter submitted to the Board's Regional
Director, concerned work which was both useful and of a type ordinarily
necessary to advance the Applicant's position during the later adversary
adjudication.
The statutory provision upon which the Applicant's fee application is
based (5 U.S.C. 504(a) (1)) applies only to fees and expenses incurred
"in connection with" an "adversary adjudication" before an
administrative agency, and 5 U.S.C. 504(b) (1) (C) defines "adversary
adjudication" as "an adjudication under Section 554 of this title in
which the position of the United States is represented by counsel or
otherwise . . . ." Section 102.143 and 102.1444 of the Board's Rules and
Regulations, which implement those provisions of the EAJA, state in
pertinent part, "(a)n eligible applicant may receive an award for fees
and expenses incurred in connection with an adversary adjudication," and
defines the term "adversary adjudication" to mean "unfair labor practice
proceedings pending before the Board on complaint, and backpay
proceedings . . . pending before the Board on notice of hearing . . .
."
Counsel for the General Counsel takes the position that even if the
investigation of the facts and the legal research work that went into
the preparation of the Applicant's September 9, 1987 position letter to
the Regional Director were both useful and of a type ordinarily
necessary for the Applicant to advance its case during the subsequent
adversary adjudication, that as a matter of law those fees and expenses
are not compensable under the EAJA, because they were incurred prior to
the issuance of the complaint. Counsel cites no Board authority for
this position. In this regard, I note that in the handful of cases
where the Board has issued EAJA awards and where the successful
applicants have asked to be compensated for pre-complaint legal fees and
expenses, that the Administrative Law Judges have ruled against the
applicants on this issue and the applicants did not file exceptions to
the judges' decisions. DeBolt Transfer, Inc., 271 NLRB 299 (1984), and
Evergreen Lumber Company, Inc., 278 NLRB 656 (1986). Thus, the Board
has not ruled on this question.
The Applicant relying on Webb v. Dyer County Board of Education, 471
U.S. 234 (1985), contends that if the legal services performed by its
lawyers in connection with the submission of its September 9, 1987
position letter to (I" Regional Director were both useful and ordinarily
necessary to the Applicant to advance its side of the litigation during
the General Counsel's prosecution of the complaint, that the expense of
those legal services is compensable under the EAJA, even though they
were performed prior to the issuance of the complaint. I agree.
In Webb a school teacher, after being terminated by the Board of
Education, retained counsel to represent him in an administrative
proceeding before the Board of Education, where the teacher contested
his termination on the grounds that it was racially motivated and that
his constitutional rights had been violated. Four years later the Board
of Education decided to adhere to its decision. Subsequently, the
teacher instituted an action in federal district court, seeking relief
under various civil rights statutes, including 42 U.S.C. Sec. 1983. The
case was subsequently settled by entry of a consent order awarding the
teacher damages and other relief. Thereafter, the teacher filed a
motion for an award of fees under the Civil Rights Attorney's Fees
Awards Act of 1976, 42 U.S.C. Sec. 1988, which provides that, "(i)n any
action or proceeding to enforce" certain civil rights statutes,
including Section 1983, "the court, in its discretion, may allow the
prevailing party o . a reasonable attorney's fee as part of the costs."
The district court, with the approval of the Court of Appeals, awarded a
fee, but rejected the teacher's contention that it should cover services
performed by counsel in the administrative proceeding before the Board
of Education.
In Webb the Supreme Court held that a "prevailing party" within the
meaning of Section 1988 was not entitled to a fee award for services
rendered during a school board hearing not required for pursuit of a
Section 1983 claim, and in this regard reasoned (Webb v. Dyer County
Board of Education, 471 U.S. at 241):
Congress only authorized the district courts to allow the
prevailing party a reasonable attorney's fee in an "action or
proceeding to enforce (Sec.1983)." Administrative proceedings
established to enforce tenure rights created by state law simply
are not any part of the proceedings to enforce Sec. 1983, and even
though the petitioner obtained relief from his dismissal in the
later civil rights action, he is not automatically entitled to
claim attorney's fees for time spent in the administrative process
. . . . (footnotes omitted)."
The Court then went on to consider the teacher's second theory--that
under the Court's reasoning in Hensley v. Eckehart, 461 U.S. 424
(1983), even if there was no automatic entitlement for the time spent on
the administrative proceeding, that such time would be compensable if it
was shown to have been reasonably expended in the preparation for the
later litigation. Webb v. Dyer Board of Education, 461 U.S. 234,
241-244. The Supreme Court, in considering this argument, emphasized
that each case must be decided on its own facts, and that although some
legal services performed before formally filing a law suit are
compensable under Section 1988, it was not error for the district court
to exclude the 5 years of easily separable administrative time in
computing a "reasonable attorney's fee" for the teacher's counsel, where
"(t)he (teacher) made no suggestion below that any discrete portion of
the work product from the administrative proceedings was work that was
both useful and of a type ordinarily necessary to advance the civil
rights litigation to the state it reached before settlement." Webb v.
Dyer County Board of Education, 471 U.S. at 243. In other words, as
the Court of Appeals for the Third Circuit stated in Delaware Valley
Citizens' Council for Clean Air v. Pennsylvania, 762 F.2d 272, 277 n. 7
(1985), "the Supreme Court recently held in Webb that fees may be
recovered under 42 U.S.C. Sec. 1988 for time spent by counsel pursuing
'optional administrative proceedings,' so long as counsel's work 'was
both useful and of a type ordinarily necessary to advance' the (civil
rights) litigation' to the point where the party prevailed." See also,
Webb v. Dyer County Board of Education, 471 U.S. at 244-245 (Brennan,
J., concurring in part and dissenting in part) (Court's conclusion
authorizes limited awards of fees under Sec. 1988 for work performed in
optional state administrative proceedings if such work was "useful and
of a type ordinarily necessary to the successful outcome of the
subsequent litigation.").
In view of the Supreme Court's opinion in Webb, and having found,
supra, that the time spent by the Applicant's lawyers in preparing the
September 9, 1987 position letter involved legal work which was both
useful and of a type ordinarily necessary to advance the Applicant's
position during the later adversary adjudication, I further find that
the Applicant's legal fees and expenses incurred from September 2, 1987
through September 22, 1987, in connection with that position letter, are
compensable under the EAJA. /15/
The Applicant's Claim for Fees and Expenses Incurred Before the
Complaint Issued, but Subsequent to the Applicant's Notice from the
General Counsel that the General Counsel Intended to Issue the Complaint
On May 24, 1988 the complaint in the underlying unfair labor practice
case issued. However, as described supra, on April 18, 1988 the General
Counsel notified all of the parties to the proceeding that the General
Counsel's Office of Appeals was remanding the case to the Board's
Regional Director with instructions to issue a complaint, absent
settlement. The Applicant contends it is entitled to the legal fees and
expenses it incurred between April 18, 1988 and May 24, 1988, in
connection with the anticipated issuance of the complaint, because the
General Counsel's April 18, 1988 announcement that a complaint would be
issued should be equated with the issuance of a complaint for the
purposes of the EAJA. Counsel for the General Counsel takes the
position that as a matter of law no fees and expenses incurred prior to
the actual issuance of a complaint are compensable under the EAJA.
Counsel for the General Counsel's position places form over substance.
I am of the opinion that when the General Counsel notifies the
parties involved in an unfair labor practice investigation, including
the charged party, that the General Counsel has decided that absent
settlement a complaint will issue, that this announcement realistically
is the equivalent of the actual issuance of a complaint for purposes of
the EAJA, and that it is reasonable to expect that the charged party's
lawyer or agent at that point in time will act in anticipation of the
issuance of the complaint. /16/ However, as provided in the EAJA the
legal fees and expenses incurred during this period, as during the
period which post-dates the issuance of the complaint, must be incurred
in connection with the "adversary adjudication" to be compensable.
In the instant case, between April 18, 1988, when the Applicant was
notified by the General Counsel that a complaint would issue, and May
24, 1988, when the complaint issued, the Applicant's attorneys performed
the following legal services for which the Applicant is seeking
reimbursement: considered the General Counsel's decision to issue the
complaint and the theory of the complaint; met with the Applicant's
business manager and its collective-bargaining negotiators, for the
purpose of discussing with them the General Counsel's decision to issue
the complaint; considered and researched the cases which the General
Counsel indicated she intended to rely upon in support of the complaint;
considered asking the General Counsel to reconsider her decision to
issue the complaint; considered the possibility of filing a motion for
summary judgment in response to the issuance of the complaint;
considered and researched possible defenses to the complaint;
considered and researched the Board's Rules and Regulations concerning
the EAJA and cases arising under the EAJA, with the object of
determining whether the Applicant would qualify as a "prevailing party"
under the EAJA and whether the General Counsel had "substantial
justification" to issue the complaint; and, on May 2, 1988 Attorney
Tollen, wrote a letter to the Board's Regional Director, with a copy to
the General Counsel's Office of Appeals. This letter which has been set
forth' in detail supra, can be briefly summarized as follows: It began
by stating that the General Counsel had no "substantial justification"
for issuing the complaint, asked that the complaint not issue, and
warned that if the complaint did issue and the Applicant ultimately
prevailed, that the Applicant intended to seek attorney's fees under the
EAJA; analyzed the legal authority which the General Counsel had relied
upon in concluding that the issuance of a complaint was warranted
because there was not a valid bargaining impasse; stated that the
evidence submitted by Local 3 did not establish a prima facie case and
that even if the evidence submitted by Local 3 indicated that the
parties' bargaining impasse had been tainted by the Applicant's prior
unfair labor practices, this prima facie showing would have rebutted by
the Applicant's evidence, if the Board's Regional Director had complied
with the Applicant's request and interviewed the Applicant's witnesses;
and, the letter ended by complaining that by failing to interview the
Applicant's witnesses, the General Counsel had denied herself of the
opportunity to determine that there was no "substantial justification"
for the issuance of the complaint.
I am of the opinion that all of the above-described legal services
were reasonably connected with the anticipated issuance of the complaint
and are of the type of services normally associated with the issuance of
a complaint in a Board unfair labor practice proceeding. I am also of
the opinion that the Applicant's counsel did not act prematurely when,
after being notified that the General Counsel had decided to issue a
complaint, he promptly researched and considered the applicability of
the EAJA and thereafter notified the General Counsel that the Applicant
believed it qualified as an eligible party under the EAJA and that if it
prevailed in the upcoming litigation it intended to seek attorney's fees
under the EAJA because the General Counsel lacked "substantial
justification" in issuing the complaint. The Applicant's counsel would
have been remiss in his responsibility toward his client, if knowing
that a complaint would be issued, he had not researched and considered
the applicability of the EAJA and had not notified the General Counsel
of the fact that his client was eligible for an award and that the
General Counsel had no substantial justification to issue the complaint
because of, among other things, the Regional Director's failure to
interview the Applicant's witnesses. In any event, even if the
Applicant's attorney acted prematurely at this point in time in
considering the applicability of the EAJA, the Applicant's fees and
expenses for those services are still compensable under the EAJA,
because the time spent in April and May 1988 researching and considering
the EAJA's applicability was useful and of a type ordinarily necessary
to the successful outcome of the subsequent litigation involving the
Applicant's claims under the EAJA. Webb v. Dyer County Board of
Education, 471 U.S. 234 (1985); cf. Reliable Tile Co., Inc., 280 NLRB
408, 408 at fn. 7 (1986).
It is for the foregoing reasons, that I find the legal fees and
expenses incurred between April 18, 1988 and May 24, 1988, which have
been claimed herein by the Applicant, are recoverable under the EAJA.
The Applicant's Claim for Fees and Expenses Incurred in Connection with
the Applicant's Attorney's August 16, 1988 Letter to the Board's
Regional Director
Counsel for the General Counsel contends that the Applicant's legal
fees and expenses incurred in connection with the preparation of the
Applicant's Attorney's August 16, 1988 letter to the Counsel for the
General Counsel are not compensable under the EAJA, even though they
were incurred after the complaint issued, because they were not incurred
in connection with the General Counsel's prosecution of the complaint,
but were incurred as a part of the Regional Director's pre-complaint
investigation.
This contention lacks merit. The letter was written several months
after the complaint and notice of hearing had issued and shortly before
the scheduled unfair labor practice hearing and, as described in detail
supra, inquired whether the Board's Regional Director, in whose name the
complaint and notice of hearing had been issued, had been given the
authority by the Board's General Counsel to withdraw the complaint, if
the evidence submitted to the Counsel for the General Counsel by the
Applicant should persuade the Regional Director that this was the
appropriate course of action. Clearly, this letter, whose primary
purpose was to determine whether the Regional Director had authority to
withdraw the outstanding complaint and notice of hearing, was written by
the Applicant's attorney in connection with the General Counsel's
prosecution of the complaint. The fact that it was written in response
to Counsel for the General Counsel's belated invitation to the
Applicant, on behalf of the Board's Regional Director, to make available
the Applicant's detailed evidence of the negotiation, so as to allow the
Regional Director to consider that evidence, does not detract from the
fact hat the letter's principal purpose was to determine whether the
Regional Director, after considering the evidence, had authority to
withdraw the complaint. Obviously if the Regional Director lacked such
authority or was unable to otherwise assure the Applicant that if the
Applicant's evidence warranted it, that the complaint would be
withdrawn, it would have been foolish, under the circumstances, for the
Applicant to submit its evidence to the Counsel for the General Counsel.
The Applicant's Claim for Legal Fees and Expenses for Services Relating
to Defenses upon which It Did Not Prevail
The complaint in the underlying unfair labor practice proceeding
consists of a single claim; the allegation that the Applicant violated
Section 8(a) (5) and (1) of the National Labor Relations Act by
unilaterally changing its employees' workweek. The Applicant was the
"prevailing party" in that proceeding for purposes of the EAJA, because
that claim was dismissed in its entirety.
The Applicant's lawyer, in preparing the Applicant's defense to the
alleged unfair labor practice, spent time determining whether the
Applicant was subject to the Board's jurisdiction inasmuch as it seemed
to counsel that, since the Applicant had no direct inflow or outflow of
goods and services across state lines, it was questionable whether an
organization such as the Applicant, which was paid to administer
employee benefit plans for trust funds and which operated entirely
within the State of California, would be subject to the Board's
jurisdiction. Ultimately, however, counsel decided that the trust
funds' purchases of insurance policies from out of the state satisfied
the Board's indirect outflow jurisdictional standard, at which point the
Applicant dropped its jurisdictional defense and during the outset of
the unfair labor practice hearing conceded that it met one of the
Board's applicable jurisdictional standards and was an employer engaged
in commerce.
Also, in defending itself against the General Counsel's complaint,
the Applicant argued it was not obligated to negotiate with Local 3
about the restoration of the status quo ante, as required by the Board's
and court's orders, because the subject of compliance with those orders
constituted a non-mandatory subject of bargaining, thus, the Applicant
argued its refusal to negotiate with Local 3 about that matter could not
have tainted the parties' otherwise valid bargaining impasse. However,
in dismissing the complaint in its entirety, I did not need to reach
that defense.
Counsel for the General Counsel takes the position that since the
Applicant's above-described jurisdictional and non-mandatory subject of
bargaining defenses did not prevail, that with respect to those defenses
the Applicant was not a prevailing party under the EAJA and because of
this should not be compensated for the legal fees and expenses it paid
for the time its lawyer spent researching and considering those
defenses. The Applicant, on the other hand, contends this issue is
governed by the Supreme Court's decision in Hensley v. Eckerhart, 461
U.S. 424 (1983), and that based upon the Court's reasoning in that
decision, it is entitled to recover legal fees and expenses incurred in
connection with its jurisdictional and non-mandatory subject of
bargaining defenses, even though it did not prevail on those defenses.
I agree.
In Hensley the Supreme Court held that in assessing attorney's fees
under "prevailing plaintiff" statutes in cases where the plaintiff has
raised multiple claims in a single action and only succeeded on some of
them, the district court must award fees in accordance with the
plaintiff's degree of success. More specifically, the Court stated that
where the plaintiff's action represents "distinctly different claims for
relief that are based on different facts and legal theories," the court
must deny fees for services rendered on the unsuccessful claims. 461
U.S. at pages 434-435. However, in cases where a plaintiff is a
prevailing party which involve but a single claim or multiple claims
which involve a common core of facts and/or related legal theories, the
Court noted that in those situations (461 U.S. at page 424).
Where a plaintiff has obtained excellent results, his attorney
should recover a fully compensated fee. Normally this will
encompass all hours reasonably expended on the litigation, . . .
. In these circumstances the fee award should not be reduced
simply because the plaintiff failed to prevail on every contention
raised in the lawsuit (Citation omitted). Litigants in good faith
may raise alternative legal grounds for a desired outcome, and the
court's rejection of or failure to reach certain grounds is not a
sufficient reason for reducing a fee. The result is what matters
(footnote omitted).
The unfair labor practice proceeding involved herein, in which the
Applicant was the prevailing party, consisted of only a single claim
against the Applicant. The Applicant's jurisdictional and non-mandatory
subject of bargaining defenses were a part of the Applicant's efforts to
defend itself against that single claim and there is no showing that
those defenses were considered and/or raised frivolously or in bad
faith. Quite the opposite, the record reveals that the Applicant acted
reasonably in considering and researching those defenses. It is for
these reasons, and based upon the Supreme Court's decision in Hensley,
that I find the legal fees and expenses incurred by the Applicant in
connection with its jurisdictional and non-mandatory subject of
bargaining defenses are compensable under the EAJA, even though the
Applicant did not prevail on those defenses. /17/
The Applicant's Claim for Fees Paid for Services Performed by a Law
Clerk
The Applicant's claim for legal fees submitted herein includes a
claim for 12-3/4 hours of work performed by a law clerk.
The record establishes that it is the current practice in the
applicable geographic area for attorneys to bill their clients for work
performed by law clerks and that the market rates charged for the past
several years ranged from $65 to $75 an hour, with the current rate
being $75 an hour. Consistent with the current rates in the community,
the Applicant was billed at $75 an hour for the services performed by
the law clerk. This is what the Applicant is claiming in this
proceeding.
Counsel for the General Counsel contends that under the EAJA, a law
clerk's services must be treated as part of a law firm's overheard and,
as such, included in the attorney's hourly rate. Alternatively, counsel
for the General Counsel contends that, assuming the services of a law
clerk are compensable under the EAJA, that those services should be
calculated at actual cost--what the law clerk is actually paid per hour.
The Applicant takes the position that the question of how a
"prevailing party" under the EAJA should be compensated for legal fees
paid for services performed by a law clerk was settled by the Supreme
Court in Missouri v. Jenkins, 57 U.S.L.N. 4735 (June 19, 1989), where
the Supreme Court held that under the Civil Rights Attorney's Fees
Awards Act of 1976 (U.S.C. Sec. 1988), that a "prevailing party" should
be compensated for the legal work of paralegals and law clerks at the
market rate for their services, rather than at their cost to the
attorneys. I agree. The Court's rationale in Missouri v. Jenkins, in
my opinion, is equally applicable to the manner in which a prevailing
party must be reimbursed under the EAJA for the money it paid for the
legal services performed by law clerks.
In the instant case, as I have found supra, there is no dispute that
the requested rate of $75 an hour for the legal services performed for
the Applicant by the law clerk was in line with the current community
rate. Accordingly, the Applicant's request that it be reimbursed in
that amount is meritorious.
The Amount of the Applicant's Recovery
In order to substantiate the amount of the legal fees and expenses it
incurred in connection with the underlying adversary adjudication and in
connection with the preparation and prosecution of its Application in
the instant supplemental proceeding, the Applicant submitted fee
statements which show the dates and hours spent by its lawyers and law
clerks in performing those services, with a description of the specific
services performed and expenses incurred. /18/ These fee statements
were submitted as a part of the several Declarations filed in this
proceeding by the Applicant's Attorney. /19/ These Declarations, among
other things, explain and clarify the fee statements in certain
respects. I note that the updated revised schedule of fees computed at
the $75 an hour rate which is attached as an "Exhibit B" to several of
the Declarations is incorrect in these respects: The June 22 fee
statement shows 4.25 hours of legal services, not 4.50 hours as set
forth in revised schedule; the May 16, 1989 fee statement shows 25.55
hours of legal services, not 25.05 as set forth in the revised schedule;
and, the revised schedule incorrectly refers to a July 15, 1989 fee
statement which it states shows 17.20 hours of legal services, whereas
the record shows there is no such fee statement, but that there is a
July 10, 1989 fee statement which shows 20.65 hours of legal service.
I have reviewed and considered each of the aforesaid fee statements
and declarations and conclude that the Applicant was billed by its
Attorney for 387.38 hours of legal services. In view of the findings of
fact and conclusions of law set out in previous sections of this
decision, I further find that all of these legal services were performed
in connection with the underlying adversary adjudication herein or in
connection with the preparation and prosecution of the Application in
this supplemental proceeding. Since the Applicant is entitled to an
award of $75 an hour for the fees it paid for those legal services, I
further find that the Applicant is entitled to an award of $29,053.50 in
legal fees under the EAJA, plus any additional compensable legal fees it
may incur in connection with its further prosecution of the Application.
Regarding the Applicant's claim for the expenses it incurred in
connection with the aforesaid legal services, I reviewed and considered
each of the aforesaid fee statements and declarations, and concluded
that the Applicant has been billed $5,160.53 for legal expenses. In
view of the findings of fact and conclusions of law set forth in
previous sections of this decision, I concluded that these expenses were
incurred by its lawyer in connection with the underlying adversary
adjudication or in connection with the preparation and prosecution of
the Application in this supplemental proceeding, as well as in
connection with other unrelated legal matters. In this last regard, my
analysis of the fee statements has led me to conclude that in a number
of cases it is not possible to determine whether a particular expense,
or what part of a particular expense, was incurred in connection with
those legal services compensable under the EAJA, rather than in
connection with some non-related legal work which the Attorney was
performing at that time for the Applicant. However, my review and
analysis of the fee statements submitted by the Applicant revealed that
significantly more than a majority of the claimed expenses therein were
connected with the legal services performed by the Applicant's lawyer
which, as I have found supra, are compensable under the EAJA. But, in
view of the impossibility in a number of instances of determining
whether a particular expense, or what part of that expense, was incurred
in connection with those legal services, rather than with other
non-compensable legal services, I shall compensate the Applicant for
only fifty (50%) percent of the $5,160.53 it paid in legal expenses.
Accordingly, I find that the Applicant is entitled to an award of
$2,580.27 in legal expenses under the EAJA, plus any additional
compensable legal expenses it may incur in connection with the further
prosecution of its application.
In recommending this award of fees and expenses, I considered the
General Counsel's contention that certain specified expense claims
should be denied because of inadequate documentation, and the General
Counsel's further contention that the fee award should be reduced
because: an unreasonable number of hours were spent researching the
Applicant's jurisdictional and non-mandatory subject of bargaining
defenses; the total of research hours spent in connection with
defending the Applicant in the underlying unfair labor practice
proceeding "seems somewhat excessive"; and, "the overall time spent on
research and preparation of (the) EAJA application . . . is excessive
and unreasonable." I reject these contentions because I am persuaded
that the Applicant's expenses were adequately documented. /20/
And, considering the complexity of the issues involved and the
high-quality of the legal services provided, I am persuaded that the
time for which reimbursement is claimed was reasonably expended.
Conclusions of Law
1. The Applicant is a prevailing party within the meaning of the
EAJA and meets the eligibility requirements of the EAJA.
2. The position of the General Counsel in issuing and in prosecuting
the complaint in this case was not substantially justified nor were
there special circumstances which would make an award of attorney's fees
and expenses unjust.
3. The Applicant is entitled to an award of attorney's fees and
expenses under the EAJA totaling $31,633.77, plus additional compensable
fees and expenses it may have incurred or may incur in connection with
the further prosecution of its application since the period covered by
the Applicant's last submission.
Upon the foregoing findings and conclusions, and the entire record,
and pursuant to Section 102.153 of the Board's Rules and Regulations, I
hereby issued the following recommended: /21/
ORDER
It is hereby ordered that the Applicant, the Laborers
Funds Administrative Office of Northern California, Inc., San Francisco,
California, be awarded the sum of $31,633.77, pursuant to its
application for an award under the Equal Access to Justice Act, plus the
additional fees and expenses incurred in connection with compensable
portions of its EAJA application since the period covered by the
Applicant's last submission. /22/
Dated: May 9, 1990
Jerrold H. Shapiro
Administrative Law Judge
'Footnotes to the Decision'
/1/ Not reported in the Board volumes.
/2/ Although the "owners" of the Applicant are its "members", the
Applicant's accountant, and presumably the Applicant itself, are under
the impression that the Applicant is owned by the Laborers
Pension-Health & Welfare-Vacation Trust Funds. In this regard, the
accountant's notes to the Applicant's annual final statements for the
years 1987 and 1988 state that, "the (Applicant) is a corporation owned
by (Laborers Pension-Health & Welfare-Vacation Trust Funds) through
issuance of membership certificates to each of the trustees of the Trust
Funds." The financial statements of the Laborers Pension-Health &
Welfare-Vacation Trust Funds reveal that it is the funds, rather than
their individual trustees, who pay the Applicant for the membership
certificates.
/3/ The trustees of the Laborers Pension-Health & Welfare-Vacation
Trust Funds, each of whom are members-directors of the Applicant, are
also the trustees of the Laborers Training and Retraining Trust Fund for
Northern California, hereinafter called the Laborers Training Trust
Fund.
/4/ The Annuity Pension Fund is a part of the Laborers Pension Trust
Fund.
/5/ The above net worth computations for the Laborers Vacation Trust
Fund and Laborers Training Trust Fund are based upon their net assets
available for benefits, as set forth in the financial statements in
evidence, inasmuch as the Applicant presented no evidence that either of
these trust funds had present value of accrued benefits, also known as
present value of accumulated benefits, as of the fiscal year ending May
31, 1988.
/6/ Bhardwaj is employed by the "big 8" accounting firm of Arthur
Anderson & Co. as a certified public accountant and manager. He
supervised the auditing of the financial records of the Laborers
Pension-Health & Welfare-Vacation Trust Funds for the fiscal year ending
May 31, 1988.
/7/ The complaint issued in the underlying unfair labor practice
proceeding on May 24, 1988.
/8/ On approximately April 17, 1987, the date on which the Applicant
complied with the Board order by rescinding all of the unilateral
changes and restoring the status quo ante, the Board's Regional Office
commenced its investigation to determine the amount of backpay owed
under the terms of the Board's make whole order. Thereafter, when the
Regional Office personnel determined the amount of backpay owed and
submitted this figure to the Applicant, the Applicant disputed that
amount and, as a result, the Board's Regional Director on August 11,
1987 issued a Backpay Specification and Notice of Hearing, which
afforded the Applicant an opportunity to legally dispute the Regional
Director's claims. Subsequently, between August 11, 1987 and December
1987, the Applicant reached an agreement with the Regional Director on
the amount of the backpay owed by the Applicant under the terms of the
Board's order, and pursuant to that agreement, in December 1987 the
Applicant paid these monies to the employees, thus satisfying the make
whole provisions of the Board's order. There is no record evidence
which shows that in disputing the amount of backpay, which the Board's
Regional Director claimed was required to satisfy its backpay
obligation, that the Applicant acted frivolously or in bad faith, or
that the General Counsel had reason to believe that this was the case.
/9/ In January 1987, at the start of the contract negotiations, the
Applicant's negotiator refused the request of Local 3's negotiator to
discuss the Applicant's legal obligation to make whole the employees for
the loss of earnings they incurred as a result of the Applicant's
illegal unilateral changes in their working conditions. Subsequently,
on several occasions during contract negotiating sessions, Local 3's
negotiator informed the Applicant's negotiator that it would be easier
for Local 3 to reach agreement on the terms of the new contract, if the
Applicant would sit down and "resolve" the issues concerning the
Applicant's legal obligation to make whole the employees for their loss
of earnings incurred because of the Applicant's illegal unilateral
changes in their working conditions.
/10/ A copy of this letter was sent to the Director of the General
Counsel's Office of Appeals.
/11/ On August 19, 1988 the Regional Director issued an order
rescheduling the hearing to October 18, 1988 at the request of the
Charging Party's attorney.
/12/ 266 NLRB 392, 393 (1983), enfd. 739 F.2d 1305, 1311-1312 (8th
Cir. 1984)
/13/ Although not relevant, I note in passing that after considering
all of the evidence submitted by Local 3, in support of its charge, and
Attorney Tollen's September 7, 1987 position letter, the Board's
Regional Director dismissed Local 3's charge in this case because he was
of the view that the Applicant's prior unfair labor practices did not
contribute to the parties' bargaining impasse.
/14/ Although the letter also dealt with the Regional Office
personnel's contention that the Applicant was in contempt of the court's
order, this constituted only a de minimus part of the letter. I also
note that the fee statement submitted by the Applicant for the period
(September 2 through September 22, 1987) reveals that none of the legal
research and analysis performed by the Applicant's lawyers in connection
with the preparation of the letter, dealt with the claim that the
Applicant was in contempt of court. All of it dealt with the contention
that the Applicant's prior unremedied unfair labor practices had tainted
the parties' bargaining impasse.
/15/ Although Webb and Hensley v. Eckerhart, 461 U.S. 424 (1983),
upon which the Court's opinion in Webb was based in substantial part,
involved fee applications under the Civil Rights Attorney's Fees Awards
Act, 42 U.S.C. 1988, the standards set forth in those opinions appear
to be "generally applicable" to all cases in which Congress has
authorized an award of fees to a "prevailing party." 461 U.S. at 433
note 7..
/16/ The situation of an attorney for a charged party who has been
notified by the General Counsel that the General Counsel intends to
issue a complaint against his client in the immediate future, is
analogous to the situation of an attorney who represents a party that is
in the process of preparing to initiate litigation against another party
by filing a complaint. In those situations, if the plaintiff prevails
in his lawsuit, he can recover attorney's fees for the legal services
performed prior to the filing of the complaint insofar as those services
are reasonably related to the litigation which the complaint generates.
See, Webb v. Dyer County Board of Education, 471 U.S. 234, 250-251
(1985) (Brennan,J., concurring in part and dissenting in part).
/17/ Although Hensley involved a fee application under the Civil
Rights Attorney's Fees Awards Act, 42 U.S.C. Sec. 1988, the standards
set forth in that opinion are "generally applicable" in all cases in
which Congress has authorized an award of fees to a "prevailing party."
462 U.S. at 433, fn. 7.
/18/ The fee statements relied upon by the Applicant are dated as
follows: October 16, 1987; May 24, 1988; June 22, 1988; July 26,
1988; August 24, 1988; September 15, 1988; October 19, 1988;
November 28, 1988; December 20, 1988; January 17, 1989; February 21,
1989; March 16, 1989; April 24, 1989; May 16, 1989; June 2, 1989;
June 15, 1989; July 10, 1989; August 21, 1989; September 19, 1989;
October 23, 1989; November 17, 1989; December 8, 1989; January 19,
1990; and, February 16, 1990. As noted previously, the Applicant does
not rely upon a September 22, 1989 fee statement because it concedes
that the legal services and expenses encompassed by that statement were
not connected with the underlying adversary adjudication or the instant
supplemental proceeding.
/19/ These Declarations were filed on the following dates: June 6,
1989; July 7, 1989; October 2, 1989; November 10, 1989; December 5,
1989; December 18, 1989; January 29, 1990; and February 16, 1990. I
note that the last Declaration erroneously states it was executed on
January 29, 1990. The contents of the Declaration, the date it was
served on the other parties, and the date of receipt for filing,
establish it was executed on or about February 16, 1989, and filed
immediately thereafter.
/20/ In the section of the Applicant's fee statements, as is the case
with most fee statements submitted to clients by law firms, the
particular "expense" for which the Applicant was billed is briefly
described in terms of "copying charge," "delivery service," "telephone
call," "Lexis Research Service," "On-Line Research Service," and
"travel." I agree with the Applicant that further documentation for the
purpose of identifying line items would require the production of
voluminous records and involve an inordinate amount of time. As
indicated supra, rather than have the Applicant supply further
documentation, I have reviewed the Applicant's fee statements and
analyzed them in the light most favorable to the General Counsel.
/21/ If no exceptions are filed as provided by Section 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived
for all purposes.
/22/ If the parties are unable to agree within a reasonable period of
time concerning the amount of any fees and expenses, incurred after the
date of the Applicant's most recent submission, to which the Applicant
is entitled in connection with the prosecution of the application, the
Applicant should submit to the Judge a revised application for fees and
expenses consistent with this Supplemental Decision and Order.
302 NLRB No. 167
D--1999
Milford, CT
CONSOLIDATED FREIGHTWAYS and FRANK CENTI, an Individual LOCAL 443,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL--CIO and FRANK CENTI, an Individual
Case 34--CA--4479, 34--CB--1243
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER
On September 21, 1990, Administrative Law Judge Joel P Biblowitz
issued the attached decision. The Respondent Employer and the Respondent
Union each filed exceptions and a supporting brief. The General Counsel
filed cross-exceptions and a supporting and 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, and conclusions only to the extent consistent with this
Decision and Order.
The question before us is whether the Respondent Employer violated
Section 8(a) (1) and (3) and the Respondent Union violated Section
8(b)(1)(A) and (2) by awarding Shop Steward Alphonse Alba a preferential
starting time in accordance with the parties' contractual superseniority
provision.
I. Factual Findings
The Respondent Employer employs approximately 18 unit employees whose
shift starting times are determined by seniority. The Respondent
Employer periodically posts a bid list of available starting times and
the number of openings for each such shift. Employees, with the sole
exception of the union steward, sign up in descending order of
seniority. When the steward---the only person regularly present at the
facility who has grievance handling responsibilities for the
Union---signs the bid lists, he has available to him the following
contractual provision for departure from natural seniority:
The Union Steward shall be accorded Super Seniority with
respect to terms and conditions of employment for layoff and
recall purposes only, and in other situations that assure the
Steward greater accessibility to co-workers to genuinely assist
him to perform his functions as a Steward which will be to the
benefit of co-workers.
On October 18, 1989, /1/ the Respondent Employer posted a bid sheet
listing five 3 am., six 8 a.m., and five 9 a.m. starting slots for the
period beginning October 22. The bid sheet posted on November 8 for the
period beginning November 12 listed five 3 a.m., seven 8 a.m., and five
9 am. starting slots. /2/ With respect to both of these work periods,
Shop Steward Alphonse Alba invoked the superseniority clause in the
collective-bargaining agreement to obtain an 8 a.m. starting time when
otherwise, based on his natural seniority alone, he would have been
required to relinquish that opportunity in favor of employee Frank Centi
and to work the 9 a.m. shift. /3/
Drivers on the 8 and 9 a.m. shifts punch in during the 15 minutes
preceding the start of their shifts and spend, on the average, another
15 minutes at the dispatch window waiting for their assignments. They
then either leave within 10 or 15 minutes or, if their trucks are not
loaded, spend some dock time loading before commencing their runs. The
record shows that the employees on the 3 a.m. shift, who perform both
dock work and driving, generally take their lunchbreaks between 8 and
8:30 a.m. and then, on the average, leave the facility for their driving
runs sometime after the 9 a.m. drivers have left.
II. Analysis and Conclusions
The complaint alleges that the Respondents violated the Act both by
maintaining the superseniority clause in their collective-bargaining
agreement and by enforcing it on the specified dates to Alba's benefit.
For the reasons set forth below, we agree with the judge that the clause
is not unlawful on its face, but we disagree with his finding that its
application on October 18 and November 8 constituted a violation of
Section 8(a) (3) and (1) and Section 8(b)(1)(A) and (2).
1. Since the contract clause on its face permits the steward to
invoke superseniority for purposes beyond layoff and recall, and since
it sanctions job-related discrimination based on union activity, it is
presumptively illegal under Dairylea Cooperative, /4/ The burden of
rebutting this presumption rests on the parties asserting its legality
and here requires the Respondents to produce evidence that their
provision for superseniority "in other situations" is justified by the
policies of the Act.
With respect to the facial lawfulness of the clause in issue, we find
that the parties have met their Dairylea burden through the language
limiting the steward's entitlement to superseniority in situations other
than layoff and recall. The restriction of superseniority to only those
"other situations" that "assure the Steward greater accessibility to
co-workers" for the performance of his duties, which include grievance
handling, is clearly intended to, and does, further the effective
administration of the parties' collective-bargaining agreement. Since
Alba is the only steward for a multishift work force, he can better
serve the overall unit by working a shift that provides him contact with
a greater number of employees than would the shift to which he would be
assigned by the use of natural seniority. Auto Workers Local 1331
(Chrysler Corp.), 228 NLRB 1446 (1977). /5/
2. Turning now to whether the applications of the superseniority
provision were lawful, we find, contrary to the judge, that they were.
Alba used his superseniority to work the 8 a.m. shift, rather than the 9
am. shift to which he would have been assigned by the use of natural
seniority. As shown below, he would serve more employees by working the
8 a.m. shift than by working the 9 a.m. shift. Concededly, he could
have served even more employees by working the 3 a.m. shift. However,
the fact that he did not use his superseniority to work that shift does
not render unlawful the application of the superseniority clause. It is
sufficient, for Dairylea purposes, that superseniority was used to
enhance the Union's ability to represent employees. The fact that it
was not exercised to enhance that ability to the maximum extent possible
does not render the exercise unlawful. /6/
Thus, we now examine the record to determine whether Alba's use of
superseniority on the two dates in question met this comparative degree
standard---i.e., did Alba have access to a greater number of employees
on the 8 am. shift than he would have had on the 9 am. shift.
On the 8 a.m. shift Alba had the opportunity to consult with either
five or six other employees on that shift for the half hour between
clocking in at 7:45 a.m. and receiving driving assignments at 8:15 a.m.
Since the 3 a.m. combination employees generally take their lunchbreak
between approximately 8 and 8:30 am. Alba had access to these five
employees for at least a portion of that period. Thus, on Alba's
preferred 8 a.m. shift he had reasonable access to approximately 10 or
11 employees for grievance handling purposes. With respect to the 9
a.m. shift, however, on the days in question Alba would have had
pre-assignment access to only four other employees on that shift and
with an 8:45 am. arrival time he would not have been able to consult
with any of the 3 am. shift employees during their usual breaktime.
Accordingly, we fig that Alba's use of superseniority in these instances
met the parties' lawful "greater accessibility" standard. /7/ We shall
therefore dismiss the allegations that the Respondent Employer and the
Respondent Union violated Section 8(a) (1) and (3) and Section
8(b)(1)(A) and (2), respectively.
ORDER
The complaint is dismissed. May 15, 1991
Dated, Washington, D.C.
James M. Stephens, Chairman
Dennis M. Devaney, Member
John N. Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
'Footnotes to the Decision and Order'
/1/ All dates are in 1989.
/2/ There was also 1 slot on each of the three remaining shifts:
noon, 1 p.m., and 2 p.m.
/3/ The record supports the judge's finding that for the relevant
period the drivers on the 8 a.m. shift averaged more overtime than those
on the 9 a.m. shift.
/4/ 219 NLRB 656 (1975), enfd. sub nom. NLRB v. Teamsters Local
.338, 531 F.2d 1162 (2d Cir. 1976).
/5/ We find no merit in the General Counsel's cross-exception to the
judge's failure to find that the clause is unlawful because it does not,
by its terms, limit superseniority for shift preference to situations
"essential" to the Union's grievance handling responsibilities. In this
case the presence of a steward on any particular shift is not necessary
or "essential" to meeting overall grievance handling duties. However,
as the Board stated in Auto Workers Local 1331, supra at 1447, as to
superseniority for shift preference ". . . strict necessity in not the
determinant; the determining factor is the purpose." Here increased
accessibility to unit employees is a purpose that satisfies the Dairylea
standard.
/6/ Thus, it is not necessary to determine whether the parties met
the superlative degree standard created by the judge, under which he
found that Alba would have been required to select the 3 am. shift in
order to secure the "greatest" access to employees.
/7/ We note that the difference between the 8 and 9 a.m. shifts with
respect to numbers of employees to whom Alba would be readily available
is not unsubstantial. Nothing in this decision is intended to suggest
that union stewards may exercise special shift preferences where only
minimal or sporadic differences in employee accessibility are shown.
Thomas Doerr, Esq., Counsel for the General Counsel
William C. Lynch, Esq., Lynch, Traub, Keefe & Errante, for Respondent
Employer
Burton Rosenberg, Esq., Zolot and Rosenberg, for Respondent Union
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge: This case was heard by
me on May 21, 1990 in Hartford, Connecticut. The Consolidated Complaint
and Notice of Hearing herein issued on December 8, 1989 /1/ and was
based upon unfair labor practice charges filed on October 24 by Frank
Centi, an individual. The Consolidated Complaint alleges that since
about April 1988, Consolidated Freightways, herein called Respondent
Employer, and Local 443, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, herein called
Respondent Union, (and, at times, collectively called Respondents) have
maintained a collective bargaining agreement providing for
superseniority for the shop steward; Respondents admit this much of the
Consolidated Complaint. The Consolidated Complaint further alleges that
on about October 18 and November 8, and on other dates presently
unknown, Respondent granted Alphonse Alba, the shop steward,
superseniority and a preferential starting time' when it was not
essential to Respondent Union's grievance handling responsibilities.
This is alleged to violate Section 8(a) (1) (3) and Section 8(b) (1) (A)
and (2) of the Act.
Upon the entire record, including the briefs filed, I make the
following:
Findings of Fact
I. Jurisdiction
Respondent Employer, a Delaware corporation with an office and place
of business located in Milford, Connecticut (herein called the facility)
is engaged in the transportation of freight. During the twelve month
period ending November 30, Respondent Employer, in the course and
conduct of its business operation, derived gross revenue in excess of
$50,000 from the transportation of freight and commodities in interstate
commerce. Respondents admit, and I find, that Respondent Employer is an
employer engaged in commerce within the meaning of Section 2(2), (6) and
(7) of the Act.
II. Labor Organization Status
Respondent Union admits, and I find, that it is a labor organization
within the meaning of Section 2(5) of the Act.
III. The Facts
Respondent Employer employs approximately eighteen regular unit
employees at the facility; seventeen of these employees are pickup and
delivery drivers. The remaining employee performs only dock work. Alba
is the only shop steward at the facility. Respondent employs a business
representative, Robert Bayusik, who covers the facility, as well as
other employers' locations. He testified that the "normal process" is
for the steward to handle the employees grievances at the first step. If
the steward cannot resolve it at that stage, then Bayusik will become
involved and discuss the grievance with the terminal manager. On
occasion, when the steward was on vacation, Bayusik has handled a
grievance without the steward first being present.. If Bayusik was given
the grievance directly at a time when the steward was present, Bayusik
would tell the employee to first discuss it with the steward who would
initially address it.
The contract between Respondent Employer and Respondent Union
contains the following provision:
The Union Steward shall be accorded Super Seniority with
respect to terms and conditions of employment for layoff and
recall purposes only, and in other situations that assure the
Steward greater accessibility to coworkers to genuinely assist him
to perform his functions as a Steward which will be to the benefit
of co-workers.
There are a number of different shifts at the facility; Respondent.
Employer posts a bid list of the available times and the number of
openings for each. The employees sign the list designating the shift
they choose. Seniority determines who gets which shift. Centi has
greater seniority than Alba (absent the superseniority provided for in
the agreement, of course). The principal shifts begin at 8 A.M. and 9
A.M. On the October 18 bid list, there were six "slots" for the 8 A.M.
shift; there were seven "slots" on the November 8 bid list for this
shift. There were five "slots" for the 9 A.M. shift on both of these
dates. The next most populated shift begins at 3 A.M.; the employees
beginning on this shift are "combination" employees drivers/dockmen.
There were five slots /2/ for this shift on the weeks in question. The
remaining starting times were 12:00 Noon, 1:00 P.M. and 2:00 P.M. for
the weeks in question. One employees worked on each of these shifts
during the periods in question.
The genesis of this matter occurred on October 18 and November 8. On
each of these days, Centi attempted to sign the bid list for an 8:00
A.M. slot and on each occasion, he was bumped by Alba who used his
contractual superseniority to obtain the 8 A.M. starting time. As a
result, Centi obtained a 9 A.M. starting time on each of these weeks.
Centi filed grievances with the Union regarding being bumped by Alba,
but they were rejected by the Union on the ground that Alba was given
the 8 A.M. shift to be most accessible to the employees at the facility.
/3/
The 3 A.M. Shift
As stated, supra, with the exception of the one dockman, the
remaining employees on this shift (four on the dates in question) are
combination employees performing both dock work and driving. Beginning
when they arrive, they handle inbound freight and load the trucks at the
facility. These are the trucks that will be driven by the 8 A.M. and 9
A.M. drivers, as well as other trucks. When they are finished loading
the trucks, some, or all of them, will take out trucks themselves. The
order in which they go is determined by seniority; the most senior of
these combination men is given the opportunity to go out first. The
witnesses testimony varied on when these combination men usually leave
the facility and go on the road; Centi testified that they leave at 9
A.M. "most of the time". Employee James LaVelle testified that the
combination men usually spend five or six hours a day at the facility
before leaving on their runs. John Demke, Respondent's terminal manager
at the facility, testified that these combination men go out on the
road, generally, between 7:30 and 8:30 A.M. Respondent's payroll
records /4/ establish that a total of one hundred thirty six employee
shifts were worked during this six week period beginning at 3 AM. or 10
P.M. on Sunday. With the exception of the dockman who did no driving
during this period about ninety five percent of these shifts involved
both dock work and driving. The calculations from these payroll records
establish that (excluding the dockman's shifts and the Sunday 10 P.M.
shift) the average amount of time the employees spent doing platform
work on each shift was six hours and twenty minutes. Although not as
critical, the average amount of time these 3 A.M. shift employees spent
on driving duties per day during this period was three hours. Using
these calculations, during this six week period, on the average, the
employees on this shift (again excluding the dockman's shifts and the
Sunday 10 P.M. shifts) left the facility to go on their runs at 9:50
A.M., and returned and clocked out at 12:50 P.M. These records also
reveal that (with the same exclusions) approximately sixty percent of
those shifts involved dock work of six hours or more resulting in these
employees being present at the facility at 9:00 A.M. or thereafter.
The 8 A.M. Shift
This is the largest shift at the facility; Respondent's payroll
records establish that for the six week period in question, there were
one hundred ninety six employee shifts worked on this shift. These
drivers punch in between 7:45 and 8:00 A.M. and then congregate at the
dispatch window at the facility where they are given their assignments
for the day, which is contained in the driver manifest. On the average,
they spend ten to fifteen minutes at the dispatch window. If the trailer
is already loaded, which is usually the case, the drivers place a hand
truck in the trailer, close the trailer door, hook up the trailer to the
tractor and proceed from the facility to their first delivery. This
takes, on the average, an additional ten to fifteen minutes. If their
trailer is not loaded, they load their own trailer and the time spent
doing this is listed on the payroll records as dock (or platform) time.
After returning to the facility in the late afternoon, the drivers
usually spend approximately twenty minutes doing the required paperwork
prior to clocking out for the day. Respondent's payroll records
establish that Respondent Employer's drivers on the 8 A.M. shift
averaged almost nine hours of driving and forty minutes of dock work per
shift during this period.
The 9 A.M. Shift
The work and procedures of the drivers on the 9 A.M. shift is
substantially the same as the drivers on the 8 A.M. shift except
(obviously) that they begin an hour later and the number of shifts
worked on the 9 A.M. shift during this period was about half of the
number of shifts worked on the 8 A.M. shift during this period.
According to Respondent's payroll records, the employees on this shift
averaged eight hours and ten minutes of driving and thirty eight minutes
of dockwork, per shift.
The 12 Noon, 1:00 P.M. and 2:00 P.M. Shifts
There was little testimony about these shifts. However, Respondent's
payroll records establish ninety two employee shifts worked on these
shifts during the six week period in question; this breaks down to
about one employee per shift (or three total) per day. Additionally,
these employees spent substantially more time driving than they did
performing dock work.
IV. Analysis
The principal case in this area is, of course, Dairylea Cooperative,
Inc. 219 NLRB 656. In that case, the contract provided that the steward
should be considered the senior employee in the craft in which he is
employed, and the steward used this clause to bypass otherwise more
senior route drivers to obtain the best route in the area. The Board
stated (at 658):
In reaching the above conclusion, we are aware that it is well
established that steward superseniority limited to layoff and
recall is proper even though it, too, can be described as tying to
some extent an on-the-job benefit to union status. The lawfulness
of such restricted super seniority is, however, based on the
ground that it furthers the effective administration of bargaining
agreements on the plant level by encouraging the continued
presence of the steward on the job. It thereby not only serves a
legitimate statutory purpose but also redounds in its effects to
the benefits of all unit employees. Thus, super seniority for
layoff and recall has a proper aim and such discrimination as it
may create is simply an incidental side effect of a more general
benefit accorded all employees. It has not, however, been
established in this case or elsewhere that super seniority going
beyond layoff and recall serves any aim other than the
impermissible one of giving union stewards special economic or
other on-the-job benefits solely because of their position in the
Union. That is not to say, of course, that proper justification
may not be forthcoming in some future case involving particular
circumstances calling for steward super seniority with respect to
terms and conditions of employment other than layoff and recall.
Consequently, there is no occasion here for finding super
seniority - even that going beyond layoff and recall - to be per
se unlawful. The issue ultimately is one of justification.
In conclusion, the Board found: super seniority clause which
are not on their face limited to layoff and recall are
presumptively unlawful, and that the burden of rebutting that
presumption (i.e. establishing justification) rests on the
shoulders of the party asserting their legality.
In International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, and its Local 1331 (Chrysler
Corporation), 228 NLRB 1446 the issue was the legality of the contract
clauses giving preference in the assignment of overtime and weekend work
to both stewards and committee persons. (The agreement additionally
provided for the equalization of overtime, whenever possible.) Because
both stewards and committeepersons play an active role in the grievance
procedure at the plant, the Board found "ample justification" for the
clauses in questions, stating: "Here, the presence of both stewards and
committeepersons during overtime is desirable for the efficient handling
of grievances, a benefit for all unit employees then at work."
NLRB v Local 443, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, 600 F2d 411 (2d Cir. 1979)
involved a company that provided airport limousine service, employing
full-time and part-time drivers; the contractual provision involved
granted superseniority "for all purposes." Citing UAW, Local 1331, -a
the Court stated that superseniority for shift selection is justified
when it is shown that it would provide the steward with greater
accessibility to his coworkers, thereby benefiting all his fellow
employees. The Court found that the evidence established the necessity
for the steward' to work the early morning trips in order to "maximize
contact with other company employees". This was a "legitimate
justification for superseniority as to shift selection". In Gulton
Electro-Voice, Inc., 266 NLRB 406, the Board rejected the standard of
some prior Board cases, and found: "We will find lawful only those
superseniority provisions limited to employees who, as agents of the
union, must be on the job to accomplish their duties directly related to
administering the collective bargaining agreement."
In United Automobile, Aerospace and Agricultural Implement Workers of
America, UAW, AFL-CIO, and its affiliate, Local Union 561 (Scovill,
Inc.), 266 NLRB 952, the Board considered the legality of a contract
clause providing that specified union officers would be the last person
laid off or affected by shift preference. Although the Board found a
violation because the duties of the individuals named in the complaint
did not involve day-to-day administration of the collective bargaining
agreement or any steward-like functions, the Board found (at fn. 9)
that this contract clause was presumptively lawful as applied to
"grievance handlers" with "steward-like" functions. The Board reasoned
that unlike a true shift preference clause, the clause in Scovill was
"defensive in nature" and was meant to assure that this individual would
be able to remain on the shift. The Board reasoned that "the shift
protection clause is akin to layoff protection and the same
considerations which lead us to find presumptively lawful steward
superseniority for layoff protection similarly mandate that steward
superseniority for defensive shift maintenance be found presumptively
lawful."
Initially, it is clear that Alba, as a steward, is a grievance
handler, and, in fact, the only present at the facility. The evidence
establishes that all grievances must first be handled by him, except
when he is on vacation. He, therefore, comes within the Board's
language in Gulton Electro-Voice, supra as an individual for whom
superseniority may be lawful. The first half of the contract's
superseniority provision provides for superseniority for layoffs and
recall; this is presumptively valid under Dairlyea, supra. However, it
was the remaining portion of the superseniority clause of the agreement
that was employed herein to assist Alba: "...and in other situations
that assure the Steward greater accessibility to coworkers to genuinely
assist him to perform his functions as a Steward which will be to the
benefit of co-workers." As it was not meant to protect Alba from layoff,
this provision and the granting of superseniority to Alba on about
October 18 and November 8 is not the "purely defensive superseniority
protection" referred to by the Board in Scovill, supra, International
Union of Electronic. Electrical, Technical, Salaried and Machine
Workers, Local 663 (Gulton Electro Voice), 276 NLRB 1043 at fn. 14 or
Mechanics Educational Society of America, Local 56, AFL-CIO (Revere
Copper Products, Inc.), 287 NLRB 935; the superseniority exercised in
the instant matter was therefore presumptively unlawful. The ultimate
issue then is whether Respondents have established that they granted
Alba's request to be on the 8 A.M. shift in order to obtain greater
accessibility to the employees.
Without his superseniority, Alba would have been on the 9 A.M. shift
on the weeks in question; through his superseniority he jumped over
Centi and obtained the 8 A.M. shift, which Respondents, and its
witnesses at the hearing, claim gave him the greatest accessibility to
the employees. Counsel for General Counsel's witnesses generally
testified that the 3 A.M. shift gave the greatest accessibility to the
facility's employees. During the two periods in question, there were six
or seven drivers on the 8 A.M. shift. These drivers arrived at, or
shortly before, 8 A.M., at which time they congregate at the
dispatcher's window where they received their manifest listing their
deliveries for the day. This takes, on the average, about fifteen
minutes. On most days, their trailers were already packed and they leave
the facility, on the average, at about 8:30. The payroll records
establish that, on the average, they did not return to the facility
until 6:10 P.M. (nine hours of driving, and forty minutes of dock work,
plus a half hour for lunch). Being on the 8 A.M. shift clearly gave Alba
access to the other five/six drivers on this shift and made this access
convenient for the fifteen minutes that these drivers congregated at the
dispatcher's window. In addition to the 8 A.M. drivers, the five
combination employees who arrived at 3:00 A.M. (except for the
dockworker who arrives at 10 P.M. on Sunday) are also present at the
facility, remaining until, on the average, 9:20 A.M., when they go out
on their runs. However, the drivers on the 8 A.M. run have only from
fifteen to thirty minutes presence at the facility and there is no
evidence that the combination employees are in close proximity to the
dispatcher's window or Alba's trailer to make them realistically
accessible to him during, what in reality, is a very brief period.
During the drivers nine hours out on the road they have almost no access
to the other employees.
On the other hand, if Alba had taken the 3 A.M. shift, he would have
had access to the other four combination employees on this shift.
Because of the nature of this work this access would have been a lot
more convenient than the access on the 8 A.M. shift; these employees
are loading trucks during a five hour period when no other employees are
present at the facility. In addition, they have the ability to take
their thirty minute lunch break together. Additionally, a majority of
these employees are still present at the facility after 9 A.M. and a
steward on this shift would have access (depending upon his rights under
the contract) to employees on both the 8 A.M. or 9 A.M. shifts.
In summary, while on the 8 A.M. shift during this period, Alba had
easy, but brief, access to the five or six other drivers on this shift,
and access, although brief and probably inconvenient, to the 3 A.M.
shift employees before leaving the facility as well as possible access
to the three employees on the Noon, 1 P.M. and 2 P.M. shifts when he
returned to the facility. On the other hand, if Alba were on the 3 A.M.
shift during this period, he would have had easy access to the four
other 3 A.M. shift employees, and probably have access, as well to the
eleven or twelve drivers on the 8 A.M. and 9 A.M. shift, prior to going
out on his run. In addition, on the average, they returned to the
facility from their run and clocked out fifty minutes after the 12 Noon
employee began working and ten minutes prior to the arrival of the 1
P.M. shift employee. I therefore agree with Counsel for General
Counsel's witnesses and find that the 3 A.M. shift provided for the
greatest accessibility. Although I find that the contract clause herein
is not unlawful, I find that Respondents have not sustained their burden
to establish that Alba's exercise of superseniority was to assure his
greater accessibility to the bargaining unit employees. I therefore
find that. by the exercise and grant of this superseniority on about
October 18 and November 8, Respondents violated Section 8(a) (1) (3) and
8(b) (1) (A) and (2) of the Act.
Conclusions of Law
1. Consolidated Freightways is an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act.
2. Respondent Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By granting superseniority to Alphonse Alba over the actual
seniority of Frank Centi, Respondent Employer and Respondent Union
violated Section 8(a) (1) (3) and Section 8(b) (1) (A) and (2) of the
Act.
4. The foregoing are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
The Remedy
Having found that Respondents have violated the Act, I shall
recommend that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that Alba was improperly granted superseniority in order to
bypass Centi for bidding for the 8 A.M. shift for the two periods in
question, and having found, as well, that the 8 A.M. shift drivers work
longer hours and therefore barn more than the 9 A.M. drivers, I shall
recommend that Respondents be ordered to jointly and severally make
Centi whole for any loss of earnings he suffered during these two
periods by being bumped to, and working on, the 9 A.M. shift rather than
the 8 A.M. shift, on which he would have been employed during these
periods, absent the violation. Backpay shall be computed as prescribed
in E. W. Woolworth Co., 90 NLRB 289, with interest to be computed in
the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173.
Upon the foregoing finds of fact, conclusions of law and the entire
record, I hereby issue the following recommended:
ORDER /5/
A. Respondent Consolidated Freightways, its officers, agents,
successors and assigns, shall:
1. Cease and desist from:
(a)Discriminating against Frank Centi, or any other employee, by
granting superseniority to Respondent Union's shop steward when it is
not essential to his access to the other employees or the Respondent
Union's grievance handling responsibilities.
(b) In any like or related manner, interfering with, restraining or
coercing its employees in the exercise of rights under Section 7 of the
Act.
2. Take the following affirmative action to effectuate the policies
of the Act:
(a) Jointly and severally with Respondent Union make Frank Centi
whole for any loss he suffered as a result of the discrimination against
him, such sum to be determined in the manner set forth above in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon 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 establishment at Milford, Connecticut copies of the
attached notices marked "Appendix A" and "Appendix B. " /6/ Copies of
the notices, on forms provided by the Regional Director for Region 34,
after being signed by the Respondents' authorized representatives, shall
be posted by the Respondent Employer 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 Employer to ensure that the
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 34, in writing, within 20
days from the date of this Order, what steps the Respondent Employer has
taken to comply herewith.
B. Respondent, Local 443, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, its officers,
agents and representatives, shall:
1. Cease and desist from:
(a) Causing, or attempting to cause, Respondent Employer to
discriminate against employees in violation of Section 8(a) (1) (3) of
the Act.
(b) In any like or related manner restraining or coercing the
employees of Respondent Employer in the exercise of their rights
protected by Section 7 of the Act.
2. Take the following affirmative action in order to effectuate the
policies of the Act.
(a) Jointly and severally with Respondent Employer make Frank Centi
whole for any loss of earnings he may have suffered by reason of the
discrimination against him, such lost earnings to be determined in the
manner set forth above in the section of this Decision entitled "The
Remedy."
(b) Post at its office and meeting halls used by or frequented by its
members and the employees it represents at Respondent Employer's Milford
facility copies of the attached notices marked "Appendix A" and
"Appendix B." /7/ Copies of the notices, on forms provided by the
Regional Director for Region 14, after being signed by the Respondent
Employer's and Respondent Union's representatives, shall be posted by
the Respondent Union's representatives, immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all
places where notices to the above described members and employees are
customarily posted. Reasonable steps shall be taken by the Respondent
Union to ensure that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director For Region 34 in writing within 20
days from the date of this Order what stePs the Respondent Union has
taken to comply.
DATED: Washington, D. C. September 21, 1990
Joel P. Biblowitz
Administrative Law Judge
APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
After a hearing in which all parties were afforded the opportunity to
present evidence, 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 discriminate against Frank Centi, or any other employee,
by allowing the steward for Local 443, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO
("The Union") to exercise his superseniority over Centi or any other
employee, when such exercise will not enable the steward to have greater
access to the unit employees at our facility.
WE WILL NOT, in any like or related manner, restrain or coerce
employees in the exercise of their rights protected by Section 7 of the
Act.
WE WILL jointly and severally with the Union make whole Centi, with
interest, for any loss of earnings he suffered as a result of the
exercise of superseniority by the Union's steward, Alphone Alba.
CONSOLIDATED FREIGHTWAYS
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 front the date
of posting and must not be altered, defaced, or covered with any other
material. Any questions concerning this notice or compliance with its
provisions may be directed to the Board's Office, Region 34, 1
Commercial Plaza, 21st Floor, Hartford, Ct. 06103-3599, Telephone No.
203-240-3522.
APPENDIX B
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
After a hearing in which all parties were afforded the opportunity to
present evidence, 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 cause or attempt to cause Consolidated Freightways to
discriminate against any employee by the exercise of superseniority by
our shop steward when such exercise will not enable the shop steward to
have greater access to the unit employees at our facility.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of their rights protected by Section 7 of the
Act.
WE WILL jointly and severally with Consolidated Freightways make
whole Frank Centi, with interest, for any loss of earnings he suffered
as a result of the exercise of superseniority by our shop steward,
Alphone Alba.
LOCAL 443, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL-CIO
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 with any other
material. Any questions concerning this notice or compliance with its
provisions may be directed to the Board's Office, Region 34, 1
Commercial Plaza, 21st Floor, Hartford, Ct. 06103-3599, Telephone No.
203-240-3522.
'Footnotes to the Statement of the Case'
/1/ Unless indicated otherwise, all dates referred to herein relate
to the year 1989.
/2/ Four of these employees begin at 3 A.M., Monday through Friday;
One (the employee who performs only dockwork) begins at 10 P.M. on
Sunday, and 3 A.M., Tuesday through Friday.
/3/ It was initially not very clear what detriment Centi suffered if
any, by being bumped. He testified that the 8 A.M. shift is preferable
because you can gain an hour a day of pickups and, presumably, an
additional hour's pay each day. Fellow employee Jerry Kard testified
that the 8 A.M. shift results in a greater opportunity for overtime.
This testimony is supported by Respondent's payroll records (discussed
more fully, supra) which establish that for the period involved the
employees on the 8 A.M. shift averaged nine hours and forty minutes per
shift, while the employees on the 9 A.M. shift averaged eight hours,
forty eight minutes.
/4/ Received in evidence were Respondent's payroll records for eight
weeks, beginning the week ending October 21. The calculations that
follow are from the first six weeks' payroll records (the week ending
October 21 through the week ending November 25) which I found to be a
representative sample. These payroll records were useful herein because
(for Respondent Employer's payroll purposes) each employee's time is
separated into driving time and platform time.
/5/ 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.
/6/ If this Order is enforced by a Judgment of the 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."
/7/ In the event that the Board's Order is enforced by a Judgment of
the 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."
302 NLRB No. 166
D--1998
Clairfie1d, TN
COLQDEST ENERGY, INC. and UNITED MINE WORKERS OF AMERICA, AFL--CIO
Case 10--CA--25168--1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER
On March 18, 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 10--RC--14023. (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 April 15, 1991, the General Counsel filed a Motion for Summary
Judgment. On April 18, 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 notice of opposition on April 22,
1991, and a response to the Notice to Show Cause on May 2, 1991.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to bargain but
attacks the validity of the certification on the basis of its objections
to the election in the representation proceeding. In its answer and
brief to the Board, the Respondent asserts, as it did in the underlying
representation proceeding, that the Board election which resulted in the
Union's certification is invalid because of alleged union misconduct
before and during the election, and that it was denied due process
because the Board did not hold a hearing to resolve its objections.
All representation issues raised by the Respondent were or could have
been litigated in the prior representation proceeding. The Respondent
does not offer to adduce at a hearing any newly discovered and
previously unavailable evidence, nor does it allege any special
circumstances that would require the Board to reexamine the decision
made in the representation proceeding. We therefore find that the
Respondent has not raised any representation issue that is properly
litigable in this unfair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the
Motion for Summary Judgment.
On the entire record, the Board makes the following
Findings of Fact
I. Jurisdiction
The Respondent, a Tennessee corporation, maintains an office and
place of business in Clairfield, Tennessee, where it is engaged in the
mining and sale of coal. During the calendar year preceding the issuance
of the complaint, a representative period, the Respondent sold from its
Clairfield mining operations coal valued in excess of $50,000 directly
to Ropper-Glo Fuels, Inc., which maintains an office and place of
business in Clairfield, Tennessee, where it is engaged in the processing
and sale of coal. During the same period, Kopper-Glo Fuels, Inc. sold
and shipped from its Clairfield plant coal valued in excess of $50,000
directly to customers located outside the State of Tennessee. 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.
II. Alleged Unfair Labor Practices
A. The Certification
Following the election held on June 29, 1990, the Union was certified
on January 18, 1991, as the collective-bargaining representative of the
employees in the following appropriate unit:
All production and maintenance employees including carrier
operators, utility employees, shop employees, roof bolters, fire
bosses, laborers, mechanics, tractor operators, miner operators,
and maintenance employees employed at the Employer's facilities
(Mines #1, #2, #3 and Machine Shop) in Clairfield, Clairborne
County, Tennessee; EXCLUDING: All clerical and professional
personnel and supervisors as defined in the Act. Also excluded are
the independent truckdrivers.
The Union continues to be the exclusive representative under Section
9(a) of the Act.
B. Refusal to Bargain
Since on or about January 28, 1991, the Union has requested the
Respondent to bargain and, since on or about February 5, 1991, the
Respondent has refused. We find that this refusal constitutes an
unlawful refusal to bargain in violation of Section 8(a) (5) and (I) of
the Act.
Conclusions of Law
By refusing on and after February 5, 1991, to bargain with the Union
as the exclusive collective-bargaining representative of employees in
the appropriate unit, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a) (5) and
(1) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has violated Section 8(a) (5) and
(1) of the Act, we shall order it to cease and desist, to bargain on
request with the Union, and, if an understanding is reached, to embody
the understanding in a signed agreement.
To ensure that the employees are accorded the services of their
selected bargaining agent for the period provided by law, we shall cons
true the initial period of the certification as beginning the date the
Respondent begins to bargain in good.faith with the Union. Mar-Jac
Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350
F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the Respondent,
Colquest Energy, Inc., Clairfield, Tennessee, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Mine Workers of America, AFL--CIO
as the exclusive bargaining representative of the employees in the
bargaining unit.
(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) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate unit on
terms and conditions of employment, and, if an understanding is reached,
embody the understanding in a signed agreement:
All production and maintenance employees including carrier
operators, utility employees, shop employees, roof bolters, fire
bosses, laborers, mechanics, tractor operators, miner operators,
and maintenance employees employed at the Employer's facilities
(Mines #1, #2, #3 and Machine Shop) in Clairfield, Clairborne
County, Tennessee; EXCLUDING: All clerical and professional
personnel and supervisors as defined in the Act. Also excluded are
the independent truckdrivers.
(b) Post at its facility in Clairfield, Tennessee, copies of the
attached notice marked "Appendix." /1/ Copies of the notice, on forms
provided by the Regional Director for Region 10, 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.
(c) 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. May 15, 1991
James M. Stephens, Chairman
Dennis M. Devaney, Member
John N. Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 refuse to bargain with United Mine Workers of America,
AFL--CIO as the exclusive representative of the employees in the
bargaining unit.
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, on request, bargain with the Union and put in writing and
sign any agreement reached on terms and conditions of employment for our
employees in the bargaining unit:
All production and maintenance employees including carrier
operators, utility employees, shop employees, roof bolters, fire
bosses, laborers, mechanics, tractor operators, miner operators,
and maintenance employees employed at the Employer's facilities
(Mines #1, #2, #3 and Machine Shop) in Clairfield, Clairborne
County, Tennessee; EXCLUDING: All clerical and professional
personnel and supervisors as defined in the Act. Also excluded are
the independent truckdrivers.
COLQUEST ENERGY, 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, 101 Marietta Tower,
NW, Suite 2400, Atlanta, Georgia 30323-3301, Telephone 404--331--2886.
'Footnotes to the Decision and Order'
/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 TEE
NATIONAL LABOR RELATIONS BOARD."
302 NLRB No. 165
D--1997
Westland, MI
DAYTON HUDSON DEPARTMENT STORE COMPANY, A DIVISION OF DAYTON HUDSON
CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, AFL--CIO
Case 7--CA--31476
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER
On March 6, 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 7--RC--19227. (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 an answer admitting in part and denying in
part the allegations in the complaint.
On April 15, 1991, the General Counsel filed a motion to strike
portions of the Respondent's answer and for summary judgment. On April
18, 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 May 1, 1991, the Respondent filed a Response.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer and response to the Notice to Show Cause the Respondent
admits its refusal to bargain, but attacks the validity of the
certification on the basis of its objections to the election in the
representation proceeding.
All representation issues raised by the Respondent were or could have
been litigated in the prior representation proceeding. The Respondent
does not offer to adduce at a hearing any newly discovered and
previously unavailable evidence, nor does it allege any special
circumstances that would require the Board to reexamine the decision
made in the representation proceeding. We therefore find that the
Respondent has not raised any representation issue that is properly
litigable in this unfair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the
Motion for Summary Judgment. /1/
On the entire record, the Board makes the following
Findings of Fact
I. Jurisdiction
The Respondent, a Minnesota corporation with its principal office and
place of business in Southfield, Michigan, is engaged in the operation
of retail stores. The Respondent maintains various stores in the State
of Michigan, including a store located at 35000 West Warren, in the city
of Westland, Michigan. During calendar year 1990, a representative
period, the Respondent, in the course and conduct of its business
operations, had gross Revenues in excess of $1 million, and purchased
and caused to be delivered at its Michigan facilities, clothing,
furniture, household electronics, and other goods and materials valued
in excess of $55,000, of which goods and materials valued in excess of
$50,000 were transported and delivered to its facilities in the State of
Michigan, directly from points located outside the State of Michigan. 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.
II. Alleged Unfair Labor Practices
A. The Certification
Following the election held May 11, 1990, the Union was certified on
December 26, 1990, as the collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time selling and non-selling
employees, including employees of leased departments, except
employees of Glemby International Michigan, Inc., employed at the
Employer's facility located at 35000 West Warren, Westland,
Michigan; but excluding confidential employees, employees of
Glemby International Michigan, Inc., guards and supervisors as
defined in the Act.
The Union continues to be the exclusive representative under Section
9(a) of the Act.
B. Refusal to Bargain
Since on or about January 24, 1991, the Union has requested the
Respondent to bargain and, since on or about January 31, 1991, the
Respondent has refused. We find that this refusal constitutes an
unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of
the Act.
Conclusions of Law
By refusing on and after January 31, 1991, to bargain with the Union
as the exclusive collective-bargaining representative of employees in
the appropriate unit, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a) (5) and
(1) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has violated Section 8(a) (5) and
(1) of the Act, we shall order it to cease and desist, to bargain on
request with the Union, and, if an understanding is reached, to embody
the understanding in a signed agreement.
To ensure that the employees are accorded the services of their
selected bargaining agent for the period provided by law, we shall
construe the initial period of the certification as beginning the date
the Respondent begins to bargain in good faith with the Union. Mar-Jac
Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350
F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the Respondent, Dayton
Hudson Department Store Company, A Division of Dayton Hudson
Corporation, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, UAW, AFL--CIO,
as the exclusive bargaining representative of the employees in the
bargaining unit.
(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) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate unit on
terms and conditions of employment, and if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time selling and non-selling
employees, including employees of leased departments, except
employees of Glemby International Michigan, Inc., employed at the
Employer's facility located at 35000 West Warren, Westland,
Michigan; but excluding confidential employees, employees of
Glemby International Michigan, Inc., guards and supervisors as
defined in the Act.
(b) Post at its facility in Westland, Michigan, copies of the
attached notice marked "Appendix." /2/ Copies of the notice, on forms
provided by the Regional Director for Region 7, 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.
(c) 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. May 15, 1991
Dennis M. Devaney, Member
Clifford R. Oviatt, Jr., Member
John N. Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 refuse to bargain with International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America,
UAW, AFL--CIO as the exclusive representative of the employees in the
bargaining unit.
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, on request, bargain with the Union and put in writing and
sign any agreement reached on terms and conditions of employment for our
employees in the bargaining unit:
All full-time and regular part-time selling and non-selling
employees, including employees of leased departments, except
employees of Glemby International Michigan, Inc., employed at the
Employer's facility located at 35000 West Warren, Westland,
Michigan; but excluding confidential employees, employees of
Glemby International Michigan, Inc., guards and supervisors as
defined in the Act.
DAYTON HUDSON DEPARTMENT
STORE COMPANY, A DIVISION
OF DAYTON HUDSON
CORPORATION
(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, 477 Michigan Avenue,
Room 300, Detroit, Michigan 48226-2569, Telephone 313--226--3219.
'Footnotes to the Decision and Order'
/1/ We, however, deny the General Counsel's motion to strike portions
of the Respondent's answer. Given that this is the initial
test-of-certification proceeding, the Respondent's denials that the
Union's certification was proper and that the Respondent violated the
Act by refusing to bargain, while erroneous, are not frivolous or a
sham. See Mattie C. Hall Health Care Center, 280 NLRB 1114 fn. 1
(1986).
/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."
302 NLRB No. 164
D--1996
Indiana, PA
HALLIBURTON SERVICES, INC., A DIVISION OF HALLIBURTON COMPANY and
UNITED STEELWORKERS OF AMERICA AFL--CIO--CLC
Case 6--CA--23302
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER
On February 14, 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 6--RC--10189. (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 April 15, 1991, the General Counsel filed a Motion for Summary
Judgment. On April 18, 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.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to bargain but
attacks the validity of the certification on the basis of its objections
to the election in the representation proceeding. In its response to the
Notice to Show Cause, Respondent states that it does not contest the
motion.
All representation issues raised by the Respondent were or could have
been litigated in the prior representation proceeding. The Respondent
does not offer to adduce at a hearing any newly discovered and
previously unavailable evidence, nor does it allege any special
circumstances that would require the Board to reexamine the decision
made in the representation proceeding. We therefore find that the
Respondent has not raised any representation issue that is properly
litigable in this unfair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the
Motion for Summary Judgment.
On the entire record, the Board makes the following
Findings of Fact
I. Jurisdiction
The Respondent, Halliburton Services, Inc., a Division of Halliburton
Company, a Delaware corporation, has been engaged in providing
cementing, fracturing, and acidizing services to companies in the oil
and natural gas industry at its facility in Indiana, Pennsylvania, where
it annually purchases and receives products, goods, and materials valued
in excess of $50,000 directly from points outside the Commonwealth of
Pennsylvania. 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.
II. Alleged Unfair Labor Practices
A. The Certification
Following the election held December 20, 1989, the Union was
certified on November 20, 1990, as the collective-bargaining
representative of the employees in the following appropriate unit:
All production and maintenance employees, including bulk
material equipment operators, cementing equipment operators,
fracturing equipment operators, cementers, fracturing operators,
mechanics and dispatchers, employed by the Employer at its
Indiana, Pennsylvania, facility; excluding special operators, the
safety manager, office clerical employees and guards, professional
employees and supervisors as defined in the Act.
The Union continues to be the exclusive representative under Section
9(a) of the Act.
B. Refusal to Bargain
Since December 20, 1990, the Union has requested the Respondent to
bargain, and, since January 11, 1991, the Respondent has refused. We
find that this refusal constitutes an unlawful refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act.
Conclusions of Law
By refusing on and after January 11, 1991, to bargain with the Union
as the exclusive collective-bargaining representative of employees in
the appropriate unit, the??Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a) (5) and
(1) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has violated Section 8(a) (5) and
(1) of the Act, we shall order it to cease and desist, to bargain on
request with the Union, and, if an understanding is reached, to embody
the understanding in a signed agreement.
To ensure that the employees are accorded the services of their
selected bargaining agent for the period provided by law, we shall
construe the initial period of the certification as beginning the date
the Respondent begins to bargain in good faith with the Union. Mar-Jac
Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350
F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the Respondent,
Halliburton Services, Inc., A Division of Halliburton Company, Indiana,
Pennsylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Steelworkers of America,
AFL--CIO--CLC, as the exclusive bargaining representative of the
employees in the bargaining unit.
(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) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate unit on
terms and conditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All production and maintenance employees, including bulk
material equipment operators, cementing equipment operators,
fracturing equipment operators, cementers, fracturing operators,
mechanics and dispatchers, employed by the Employer at its
Indiana, Pennsylvania, facility; excluding special operators, the
safety manager, office clerical employees and guards, professional
employees and supervisors as defined in the Act.
(b) Post at its facility in Indiana, Pennsylvania, copies of the
attached notice marked "Appendix." /1/ Copies of the notice, on forms
provided by the Regional Director for Region 6, 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.
(c) 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. May 15, 1991
Mary Miller Cracraft, Member
Dennis M. Devaney, Member
Clifford R. Oviatt, Jr., Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 refuse to bargain with United Steelworkers of America,
AFL--CIO--CLC as the exclusive representative of the employees in the
bargaining unit.
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, on request, bargain with the Union and put in writing and
sign any agreement reached on terms and conditions of employment for our
employees in the bargaining unit:
All production and maintenance employees, including bulk
material equipment operators, cementing equipment operators,
fracturing equipment operators, cementers, fracturing operators,
mechanics and dispatchers, employed by the Employer at its
Indiana, Pennsylvania, facility; excluding special operators, the
safety manager, office clerical employees and guards, professional
employees and supervisors as defined in the Act.
HALLIBURTON SERVICES,
INC., A DIVISION OF
HALLIBURTON COMPANY
(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, 1000 Liberty Avenue,
Room 1501, Pittsburgh, Pennsylvania 1522-4173, Telephone 412--644--2969.
'Footnotes to the Decision and Order'
/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."
302 NLRB No. 163
D--1995
Herculaneum, MO
STEELTEC INCORPORATED and INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL--CIO, SHOPMEN'S LOCAL UNION
NO. 518
Case 14--CA--21170
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND REMANDING
Upon a charge filed by International Association of Bridge,
Structural and Ornamental Iron Workers, AFL--CIO, Shopmen's Local Union
No. 518, the Union, December 18, 1990, and amended January 10, and
February 4, 1991, the General Counsel of the National Labor Relations
Board issued a complaint February 8, 1991, against Steeltec
Incorporated, the Respondent, alleging that it has violated Section 8(a)
(5) and (1) of the National Labor Relations Act. Copes of the charge,
amended charges, and complaint were properly served on the Respondent.
On March 1, 1991, the Respondent filed a letter purporting to be an
answer to the complaint. /1/
On March 12, 1991, the General Counsel filed a Motion for Summary
Judgment, with exhibits attached. On March 15, 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.
According to the Motion for Summary Judgment, on receiving the
Respondent's answer March I, 1991, counsel for the General Counsel met
personally on the same day with the Respondent's president to inform him
that the answer was insufficient to satisfy the requirements for answers
to complaints, as set forth in Section 102.20 of the Board's Rules and
Regulations. /2/ On the same day, counsel for the General Counsel also
sent the Respondent a letter by certified mail, as well as an identical
letter by regular mail, informing the Respondent of the answer's
insufficiency and setting forth the requirements of Section 102.20 of
the Rules and Regulations. The General Counsel's letters further
informed the Respondent that if a sufficient answer was not filed by
March 6, 1991, a Motion for Summary Judgment could be filed. The
Respondent did not file a further answer.
The General Counsel, although acknowledging the Respondent's March 1,
1991 answer, nonetheless asserts that the answer fails to admit, deny,
or explain specifically each of the facts alleged in the complaint and
the General Counsel moves that "the Board strike Respondent's answer,
deem all the allegations contained in the General Counsel's Complaint
and Notice of Rearing to be admitted and enter an order providing for an
appropriate remedy, without the holding of a hearing and without taking
evidence in support of said allegations."
The complaint alleges, inter alia, that the Respondent violated
Section 8(a) (5) and (1) by refusing since July 23, 1990, to execute a
written collective-bargaining agreement embodying the terms of the
agreement reached between the Respondent and the Union on November 6,
1989. The complaint further alleges that the Respondent has repudiated
the November 6, 1989 agreement since July 23, 1990, by failing to apply
the terms of the agreement to the unit employees, in violation of
Section 8(a)(5) and (1). In its answer, the Respondent, inter alia,
"denies that its officers, agents and representatives since Monday July
23, 1990, have failed and refused to bargain collectively and in good
faith with the International Association of Bridge, Structural and
Ornamental Iron Workers Local 518 by refusing to execute an agreed upon
collective bargaining agreement and by failing to apply the terms of
such agreement to its employees and by repudiating such agreement."
Additionally, the answer specifically admits some of the complaint's
factual allegations and asserts that the parties never reached agreement
on contract terms including, but not limited to, the effective date and
termination date of the contract.
The Board, having duly considered the matter, finds that summary
judgment is not appropriate here. The Respondent's March 1, 1991 letter
specifically denies that the Respondent engaged in the conduct alleged
to violate Section 8(a) (5) and (1) of the Act. Despite the General
Counsel's characterization of the answer as "a rambling narrative which
only generally alludes to the substance of some of the complaint
allegations," we note that the answer, in addition to the specific
denials, contains an explanation of the Respondent's conduct. We note
that the answer does not address each fact alleged in the complaint;
however, even if those unaddressed facts were deemed to be admitted to
be true, the Respondent's specific denial of the substance of the
complaint has raised substantial and material issues of fact and law
warranting a hearing before an administrative law judge. /3/ Thus, we
conclude that the Respondent's March I, 1991 answer to the complaint is
sufficient under Section 102.20 of the Board's Rules and Regulations.
Accordingly, the General Counsel's Motion for Summary Judgment shall
be denied.
ORDER
It is ordered that the General Counsel's Motion for Summary Judgment
is denied.
IT IS FURTHER ORDERED that this proceeding is remanded to the
Regional Director for Region 14 for further appropriate action.
Dated, Washington, D.C. May 15, 1991
James M. Stephens, Chairman
Mary Miller Cracraft, Member
Clifford R. Oviatt, Jr., Member
NATIONAL LABOR RELATIONS BOARD
'Footnotes to the Decision and Order'
/1/ On February 19, 1991, the Respondent, by its representative,
filed a request for an extension of time for filing an answer in order
to enable the Respondent to obtain substitute representation. The
Regional Director issued an order February 20, 1991, granting the
extension of time to file an answer until March 1, 1991.
Because Respondent's president, Keith R. Gansner, filed the March 1,
1991 answer himself, it appears that the Respondent is not represented
by counsel in this proceeding.
/2/ Sec. 102.20 of the Rules and Regulations provides: The
respondent shall, within 14 days from the service of the complaint, file
an answer thereto. The respondent shall specifically admit, deny, or
explain each of the facts alleged in the complaint, unless the
respondent is without knowledge, in which case the respondent shall so
state, such statement operating as a denial. All allegations in the
complaint, if no answer is filed, or any allegation in the complaint not
specifically denied or explained in an answer filed, unless the
respondent shall state in the answer that he is without knowledge, shall
be deemed to be admitted to be true and shall be so found by the Board,
unless good cause to the contrary is shown.
/3/ See M.J. McNally, Inc., 302 NLRB Mo. 18 (Mar. 20, 1991). Chairman
Stephens, who dissented in McNally, finds that the Respondent's pro se
answer in this case, unlike that in McNally, clearly raises factual
issues that warrant a hearing.
302 NLRB No. 162
D--1994
Pittston, PA
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA and ISLAND CREEK
COAL COMPANY CYPRUS EMERALD RESOURCES CORPORATION GATEWAY COAL COMPANY
TANOMA MINING COMPANY, INC. ISELIN COAL PREPARATION COMPANY FLORENCE
MINING COMPANY HELVATIA COAL COMPANY KEYSTONE COAL MINING CORPORATION
GREENWICH COLLIERIES, A DIVISION OF PENNSYLVANIA MINES CORPORATION
RUSHTON MINING COMPANY, A WHOLLY OWNED SUBSIDIARY OF PENNSYLVANIA MINES
CORPORATION TUNNELTON MINING COMPANY SHANNOPIN MINING COMPANY THE HELEN
MINING BETH ENERGY MINES, INC. U.S. STEEL MINING COMPANY SOUTHERN OHIO
COAL COMPANY PENN ALLEGH COAL COMPANY BETH ENERGY MINES WINDSOR COAL
COMPANY DILLTOWN FACILITIES, A DIVISION OF PENNSYLVANIA MINES
CORPORATION PENNSYLVANIA ELECTRIC COMPANY JULIANA COAL COMPANY DIETRICH
INDUSTRIES, INC. CONSOLIDATION COAL COMPANY MCELROY COAL COMPANY
NORTHERN CONTINENTAL OPERATING CO. NORTH FAYETTE COAL COMPANY
CONSOLIDATION COAL COMPANY (Blacksville #1 Mine) CONSOLIDATION COAL
COMPANY (Robinson #95 Mine) CONSOLIDATION COAL COMPANY (Loveridge No. 22
Mine) CONSOLIDATION COAL COMPANY (Ozage #3 Mine) CONSOLIDATION COAL
COMPANY (Humphrey #7 Mine) CONSOLIDATION COAL COMPANY (Arkwright)
CONSOLIDATION COAL COMPANY (Blacksville #2 Mine) SPRING RIDGE COAL
COMPANY SEASON ALL INDUSTRIES, INC. THE MONONGAHELA RAILWAY COMPANY
ONEIDA COAL COMPANY, INC. WEST PENN POWER COMPANY BENTLY COAL CO. MECO
INTERNATIONAL, INC. ALOE COAL COMPANY FOUR DIAMONDS CONSTRUCTION, INC.
EASTERN ASSOCIATED COAL CORP. MINOTTE CONTRACTING CORPORATION
MONONAGHELA POWER COMPANY THE OHIO VALLEY COAL COMPANY QUARTO MINING
COMPANY CENTRAL OHIO COAL COMPANY SAGINAW MINING COMPANY BOICH MINING
COMPANY PEABODY COAL COMPANY HAMPDEN COAL COMPANY, INC. WESTMORELAND
COAL COMPANY SHARPLES COAL CORPORATION LOWLANDS COAL CORPORATION OLD
HICKORY COAL CORPORATION SWAMP FOX DEVELOPMENT CENTRAL CONTINENTAL
OPERATING COMPANY, INC. OMAR MINING COMPANY PRINCESS BEVERLY DONALDSON
MINE COMPANY HIGH POWER MOUNTAIN CORPORATION RUM CREEK COAL SALES, INC.
BETH ENERGY MINES APPALACHIN MINING, INC. HATFIELD DOCK AND TRANSFER,
INC. ANCHOR MINING, INC. AGIPCOAL USA, INC. BETH ENERGY MINES
VIRGINIA CREWS COAL COMPANY PIKEVILLE COAL COMPANY HOBET MINING, INC.
PREMIUM ENERGY, INC. W-P COAL COMPANY U.S. STEEL MINING CO., INC.
SOUTHERN OHIO COAL COMPANY ARCH OF KENTUCKY, INC. KENTUCKY CARBON
CORPORATION M & H COAL COMPANY THE LADY H COAL COMPANY, INC. CEDAR COAL
COMPANY ISLAND CREEK COAL COMPANY ELK RUN COAL COMPANY SUPERIOR MINING
AND MINERALS, INC. OLD BEN COAL COMPANY SIDNEY COAL COMPANY, INC. NEW
ERA COAL COMPANY ARCH OF WEST VIRGINIA, INC. DAVIDSON MINING, INC.
TOMMY CREEK COAL COMPANY STONEY COAL COMPANY EAST GULF FUEL CORPORATION
HARLEY MINING, INC. ZALKIN COAL SALES, INC. BIRCHFIELD MINING, INC.
MABEN ENERGY CORPORATION M.A.E. WEST, INC. HANFORD SMOKELESS COLLIERIES
CONSOLIDATION COAL COMPANY BITUMINOUS COAL OPERATORS ASSOCIATION, INC.
NORTHLAND RESOURCES, INC. GAULEY COAL SALES COMPANY MAPLE MEADOW MINING
COMPANY CANNELTON INDUSTRIES, INC. ELECTRICAL DESIGN & CONSTRUCTION,
INC. HIGH POWER ENERGY KANAWHA MINING COMPANY, INC. CYPRUS KANAWHA
CORPORATION LANGLEY & MORGAN CORPORATION SOVEREIGN COAL CORPORATION
NUEAST MINING CORP. COLONY BAY MINING COMPANY TONEY' S BRANCH COAL
COMPANY PEABODY COAL COMPANY EASTERN ASSOCIATED COAL CORPORATION DUNBAR
PLAZA INC. d/b/a DUNBAR TRAVELODGE EAGLEHAWK CARBON, INC. KESSCOAL,
INC., CAPITOL FUELS DOCK KESSCOAL, INC. NIX MINING COMPANY PAX MINING
COMPANY RAWL SALES AND PROCESSING COMPANY, INC. U.S. STEEL MINING CO.,
INC. JIM WALTER RESOURCES, INC. DRUMMOND COMPANY, INC. THE PITTSBURGH
& MIDWAY COAL MINING COMPANY CARDOVA TRUCKING COMPANY, INC. A.J. TAFT
COAL CO., INC. IMAC ENERGY, INC. BLACK WARRIOR MINERALS, INC. BLACK
GOLD TRUCKING COMPANY GATEWAY MALLS, INC. BLUE SQUARE II, INC.
WESTMORELAND COAL COMPANY HARMAN MINING CORPORATION DELTA MINING, INC.
OLD BEN COAL COMPANY CONSOLIDATION COAL COMPANY ARCH OF ILLINOIS, INC.
FREEMAN UNITED COAL MINING COMPANY MONTEREY COAL COMPANY AMERICAN
ELECTRIC POWER CORP. OHIO POWER COOK COAL TERMINAL ZEIGLER COAL COMPANY
PEABODY COAL COMPANY OLD BEN COAL COMPANY AMAX COAL COMPANY PEABODY COAL
COMPANY PEABODY COAL COMPANY ISLAND CREEK COAL COMPANY GREEN RIVER COAL
CO., INC.
Case 5--CC--1109--1, 6--CC--1770, 6--CC--1772, 6--CC--1773,
6--CC--1774, 6--CC--1775, 6--CC--1776, 6--CC--1777, 6--CC--1778,
6--CC--1779, 6--CC--1780, 6--CC--1781, 6--CC--1782, 6--CC--1783,
6--CC--1784, 6--CC--1785, 6--CC--1786, 6--CC--1787, 6--CC--1788,
6--CC--1789--1, 6--CC--1790, 6--CC--1791, 6--CC--1793, 6--CC--1794,
6--CC--1795, 6--CC--1796, 6--CC--1797, 6--CC--1798, 6--CC--1799,
6--CC--1800--1, 6--CC--1801, 6--CC--1802, 6--CC--1803, 6--CC--1804,
6--CC--1805, 6--CC--1806, 6--CC--1807, 6--CC--1808, 6--CC--1809--1,
6--CC--1811--1, 6--CC--1812, 6--CC--1813--1, 6--CC--1814, 6--CC--1815,
6--CC--1816, 6--CC--1821, 6--CC--1822, 6--CC--1823--1, 6--CC--1824,
6--CC--1825, 8--CC--1404, 8--CC--1406, 8--CC--1407--3, 8--CC--1408,
8--CC--1409, 8--CC--1412, 9--CC--1368--1, 9--CC--1390--1,
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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER
On June 29, 1990, International Union, United Mine Workers of America
(Respondent International or the Respondent), various Charging Parties
as reflected by signatures in attachment 1, /1/ and the General Counsel
of the National Labor Relations Board entered into a Settlement
Stipulation, subject to the Board's approval, providing for the entry of
a consent order by the Board and a consent judgment by any appropriate
United States court of appeals. The parties waived all further and other
proceedings before the Board to which they may be entitled under the
National Labor Relations Act and the Board's Rules and Regulations, and
Respondent waived its right to contest the entry of a consent judgment
or to receive further notice of the application therefor.
A number of Charging Parties have filed objections to the settlement
on the grounds, inter alia, that it contains a nonadmission clause and
does not include additional notice requirements. Several of the
objecting Charging Parties have also objected to the settlement on the
ground that the Respondent Union continued to engage in similar
misconduct after it executed the settlement in April 1990.
After carefully reviewing these objections, we conclude, in agreement
with the General Counsel, that they do not warrant disapproval of the
settlement. First, contrary to our dissenting colleague, we do not agree
that the inclusion of a nonadmission clause implies that we condone the
Respondent's alleged illegal activity. It merely reflects that the
settlement was the result of a compromise prior to a final adjudication
on the merits finding the alleged violations. As the Second Circuit
stated in upholding the Board's approval of a nonadmission formal
settlement containing cease-and-desist and notice provisions
substantially similar to those here:
(W)e are not dealing with a successfully litigated prosecution
of unfair labor practices that has culminated in findings of a
violation based upon evidence introduced at a hearing and
subjected to cross-examination, but with a settlement. The order
is based solely upon a stipulation, entered into as the basis of
an order only with the respondent's consent. The stipulation, of
course, reflects a considered compromise by both sides. It
undoubtedly represents the most by way of relief that the Board
believes that it could achieve short of full litigation. Should
the Board insist upon the admission of guilt demanded by (the
Charging Party Employer), the Union would in all probability
refuse to settle, immediate injunctive relief would be scuttled,
and the parties would be relegated to the delay and expense of
pretrial preparation and hearings, with no assurance as to the
content or scope of the ultimate findings or the relief that would
be granted. (Container Systems Corp. v. NLRB, 521 F.2d 1166,
1171--72 (2d Cir. 1975).
To be sure, nonadmission clauses are not to be routinely incorporated
into settlement agreements. /2/ However, the Board has long recognized
that under certain circumstances, agreement to inclusion of such a
clause may be a relatively small price to pay in order to obtain an
immediate order proscribing the alleged misconduct. Accordingly, the
Board has consistently approved formal settlements containing such a
clause where the settlement would effectuate the purposes of the Act.
See, e.g., Mine Workers (Decker Coal), 294 NLRB No. 12 (May 23, 1989);
Philadelphia Building Trades Council (Wohlsen Construction), 279 NLRB
1242 (1986); Mine Workers (James Bros. Coal), 191 NLRB 209 (1971).
We similarly disagree with our dissenting colleague that the
stipulated order, when coupled with the nonadmission clause, fails to
address the allegedly illegal activity, leaves the impression that any
party engaging in such conduct will not be held accountable, and/or
leaves the alleged conduct unremedied. The stipulated order is broad in
its scope and nationwide in its geographic reach. In terms of proscribed
means and in terms of proscribed objectives, it prohibits the Respondent
from engaging in unlawful secondary conduct not only with respect to the
named Employers, but also with respect to "any other person." By
agreeing to the settlement, the Respondent has consented both to the
entry of this order and to the entry of an appeals court judgment
enforcing it---a judgment that will in turn be enforceable through
contempt proceedings. Contrary to our dissenting colleague, we do not
believe that these provisions merely "beg the question." They in fact
bar the Respondent---by the most effective means available under the
Act---from engaging in any future illegal secondary activity. And
nothing in the nonadmission clause in any way modifies the provisions or
undermines their efficacy. See Container Systems, supra at 1173. /3/
We also respectfully disagree with our dissenting colleague that the
settlement's notice requirements are inadequate to signal to union
members that the alleged illegal activity is prohibited by law and will
not be tolerated. The settlement contains the traditional notice-posting
remedy imposed by the Board, requiring the Respondent to post a copy of
the notice at each of its business offices and those of 14 of its
affiliated Districts, and to also provide copies of the notice for
posting by the Charging Party Employers, if willing, in all places where
notices to employees are customarily posted. While we cannot say with
certainty that we would not have included additional notice requirements
in a final order after full litigation, as indicated above in our
discussion of the nonadmission clause, The issue here is not the
appropriateness of a final Board order, but the appropriateness of a
settlement.
Finally, with regard to the objection that the Respondent continued
to engage in unlawful secondary conduct after it signed the settlement,
we note that this objection has not been supported by any facts or
evidence. We therefore find that this objection also does not warrant
disapproval of the settlement.
As indicated above, the settlement in this case provides for the
entry of a broad, nationwide cease-and-desist order against the
Respondent enforceable through contempt proceedings. Further, this order
will be entered immediately, without the costs and delay of litigation.
In these circumstances, and taking into account the early stage of the
litigation (prior to the hearing), the inherent risks and uncertainties
of litigation generally, and the fact that the General Counsel has
recommended approval of the settlement, we find that, on balance, it
would effectuate the purposes and policies of the Act to approve the
settlement.
Accordingly, the Settlement Stipulation is approved and made a part
of the record and the proceeding is transferred to and continued before
the Board in Washington, D.C., for the entry of a Decision and Order
pursuant to the provisions of the Settlement Stipulation.
On the basis of the Settlement Stipulation and on the entire record,
the Board makes the following
Findings of Fact
1. The Employer's business
At all times material, Pittston Coal Group, Inc. (Pittston), a
corporation has been engaged in the operations of coal lands, coal
mines, and coal preparation plants, through various subsidiaries, at
facilities located throughout the Commonwealth of Virginia, Commonwealth
of Kentucky, and the State of West Virginia. During the past 12 months,
Pittston purchased and received at its various locations within the
Commonwealth of Virginia products, goods, and materials valued in excess
of $50,000 directly from points outside the Commonwealth of Virginia.
The Respondent and various Charging Parties in attachment 1 admit, and
we find, that Pittston is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that each of the
Employers listed in appendix A is now, and has been at all times
material, a person engaged in commerce or in an industry affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The labor organization involved
International Union, United Mine Workers of America is a labor
organization within the meaning of Section 2(5) of the Act.
ORDER
On the basis of the above findings of fact, the Settlement
Stipulation, and on the entire record, the National Labor Relations
Board orders that the Respondent, International Union, United Mine
Workers of America, its officers, representatives, employees and agents,
shall
1. Cease and desist from
(a) Engaging in or inducing or encouraging any individual employed by
any of the Employers listed in appendix B, or any other person engaged
in commerce or in an industry affecting commerce, to engage in a strike
or a refusal in the course of their employment to use, manufacture,
process, transport, or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any services, or threatening,
coercing, or restraining any of the Employers listed in appendix B, or
any other person engaged in commerce, or in an industry affecting
commerce where, in either case, an object thereof is to force or require
any of the Employers listed in appendix B, or any other person, to cease
using, selling, handling, transporting, or otherwise dealing in the
products of any other producer, processor, or manufacturer, or to force
or require any of the Employers listed in appendix B, or any other
person, to cease doing business with any other person in violation of
the National Labor Relations Act.
2. Take the following affirmative action necessary to effectuate the
policies of the Act.
(a) Post in conspicuous places at each of its business offices and
those of its affiliated Districts (2, 4, 5, 6, 11, 12, 14, 17, 19, 23,
28, 29, 30, and 31), including all places where notices to members are
customarily posted, copies of the attached notice marked "Appendix C."
/4/ Copies of the notice, on forms provided by the respective Regional
Directors for Regions 5, 6, 8, 9, 10, 11, 14, 25, and 26, after being
duly signed by a representative of Respondent International, shall be
posted immediately upon receipt and maintained by it for 60 consecutive
days thereafter. Reasonable steps shall be taken by Respondent
International to ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Mail to the Regional Directors for Regions 5, 6, 8, 9, 10, 11,
14, 25, and 26 signed copies of the notices for posting, if willing, by
the Charging Parties, in all places where notices to employees are
customarily posted. Copies of the notice, on forms provided by the
Regional Directors for Regions 5, 6, 8, 9, 10, 11, 14, 25, and 26 shall,
after having been signed by Respondent International's representative be
forthwith returned to the Regional Directors for such posting by the
Charging Parties.
(c) Notify the Regional Directors for Regions 5, 6, 8, 9, 10, 11, 14,
25, and 26 in writing within 20 days from the date of this Order what
steps Respondent International has taken to comply.
Dated, Washington, D.C. May 14, 1991
James M. Stephens, Chairman
Mary Miller Cracraft, Member
Dennis M. Devaney, Member
John N. Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
MEMBER OVIATT, dissenting.
Recognizing the views of my fellow Board Members who approved the
Settlement Stipulation here, I have reflected at some length on the
Settlement Stipulation arrived at by the General Counsel and the Unions
in this matter. I now conclude that I cannot approve the Settlement
Stipulation as proposed and submitted.
If the secondary boycott activity occurred, as alleged in the
complaints issued in these matters, I view such activity to be the
ultimate form of illegal economic violence and harassment. Such activity
can and does have a broad impact on an industry and the economic
viability of employers in both the long and short term. This being so,
it also affects the job security of uninvolved employees and their
financial and job security, as well as the economic health of the
community in which they reside. It can have a detrimental impact on
uninvolved persons, businesses, communities, and regions where a major
element of each is associated with the industry involved in the primary
dispute. Where the alleged illegal activities are pervasive and
widespread, as here alleged, the economic impact could well be
catastrophic for many uninvolved persons and entities.
After 57 years of history and experience under the National Labor
Relations Act, it is well past time that all parties recognize that
violence, harassment, and threats of any kind, including economic
violence, must be removed as an element of the labor-management
relationship. This Settlement Stipulation, in my view, will be
interpreted to excuse such activity and is a disservice to the processes
embodied in the Act for the peaceful resolution of labor disputes and to
those parties struggling to resolve their differences within the law's
framework. It is time that management and labor both understand that the
management-labor relationship has moved beyond the type of activity
alleged here.
Economic violence, harassment, and threats are not new to the unions
and employers in the mining industry. The 1989--1990 strike and the
alleged secondary boycott activity associated with that strike, if true,
is yet another episode in a long history. To resolve the 8(b) (4)
charges here with a Settlement Stipulation, which provides for the entry
of a broad, nationwide order for contempt if the alleged illegal
activity again occurs, begs the question. And, when coupled with the
nonadmission clause included in the agreement, it fails to address the
allegedly illegal activity and leaves the clear impression, particularly
in the mining industry, that any party engaging in such activity will
not be held accountable, but will only be advised, once again, not to
repeat the violative acts. This leaves unremedied activity which, if
proven, clearly violates the law.
Had the agreement not included a nonadmission provision, I would have
approved it since that could not imply to those involved that we were
condoning this alleged illegal activity. On the other hand, I would have
approved the agreement as submitted if it had provided that the
International and the other union officers read, in the presence of the
Board's General Counsel, the provisions of the Board's Order and explain
the consequences of future similar activity to all local and district
union members. That could easily have been accomplished by the use of a
video tape, which could have been played at a meeting of members of each
local or district union. I then would have concluded that the message of
this Settlement Stipulation---that future economic violence and threats
will not be countenanced and will subject those involved to contempt
prosecution---would be sufficiently conveyed to those allegedly
involved. The message that this Board will enforce the National Labor
Relations Act as it was intended to be enforced would then have been
delivered personally and, in my view, adequately. The mere posting of a
notice is not enough to signal to union members that this allegedly
pervasive and widespread illegal activity is prohibited by law and will
not be tolerated.
However, since the Settlement Stipulation does not contain such
remedial procedures, and does include a nonadmission clause, I cannot
approve it and would send these issues to a hearing for determination
whether such activity occurred and, if proven, would then provide a
strong remedy consistent with our Act.
Dated, Washington, D.C. May 14, 1991
Clifford R. Oviatt, Jr., Member
NATIONAL LABOR RELATIONS BOARD
ATTACHMENT 1
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA
BY:________________________ DATE: _____________________ TUNNELTON
MINING COMPANY BY:________________________ DATE: _____________________
SHANNOPIN MINING COMPANY BY:________________________ DATE:
_____________________ THE HELEN MINING BY:________________________ DATE:
_____________________ BETH ENERGY MINES, INC.
BY:________________________ DATE: _____________________ U.S. STEEL
MINING COMPANY BY:________________________ DATE: _____________________
U.S. STEEL MINING COMPANY BY:________________________ DATE:
_____________________ SOUTHERN OHIO COAL COMPANY
BY:________________________ DATE: _____________________ PENN ALLEGH
COAL COMPANY BY:________________________ DATE: _____________________
BETH ENERGY MINES BY:________________________ DATE:
_____________________ WINDSOR COAL COMPANY BY:________________________
DATE: _____________________ DILLTOWN FACILITIES, A DIVISION OF
PENNSYLVANIA MINES CORPORATION BY:________________________ DATE:
_____________________ THE MONONGAHELA RAILWAY COMPANY
BY:_______________________ DATE: _____________________ ONEIDA COAL
COMPANY, INC. BY:_______________________ DATE: _____________________
WEST PENN POWER COMPANY BY:_______________________ DATE:
_____________________ BENTLY COAL CO. BY:_______________________ DATE:
_____________________ MECO INTERNATIONAL, INC.
BY:_______________________ DATE: _____________________ ALOE COAL
COMPANY BY:_______________________ DATE: _____________________ FOUR
DIAMONDS CONSTRUCTION, INC BY:_______________________ DATE: EASTERN
ASSOCIATED COAL CORP. BY:_______________________ DATE:
_____________________ MINOTIE CONTRACTING CORPORATION
BY:_______________________ DATE: _____________________ MONONAGHELA
POWER COMPANY BY _______________________ DATE: _____________________
THE OHIO VALLEY COAL COMPANY BY:_______________________ DATE:
_____________________ CONSOLIDATION COAL COMPANY (Blacksville #1 Mine)
BY:_______________________ DATE: _____________________ CONSOLIDATION
COAL COMPANY (Robinson #93 Mine) BY:_______________________ DATE:
_____________________ CONSOLIDATION COAL COMPANY (Loveridge No. 22 Mine)
BY:_______________________ DATE: _____________________ CONSOLIDATION
COAL COMPANY (Osage #3 Mine) BY:_______________________ DATE:
_____________________ CONSOLIDATION COAL COMPANY (Humphrey #7 Mine)
BY:_______________________ DATE: _____________________ CONSOLIDATION
COAL COMPANY (Arkwright) BY:_______________________ DATE:
_____________________ CONSOLIDATION COAL COMPANY (Blacksville #2 Mine)
BY:_______________________ DATE: _____________________ SPRING RIDGE
COAL COMPANY BY:_______________________ DATE: _____________________
SEASON ALL INDUSTRIES, INC. BY:_______________________ DATE:
_____________________ PENNSYLVANIA ELECTRIC COMPANY
BY:_______________________ DATE: _____________________ JULIANA COAL
COMPANY BY:_______________________ DATE: _____________________ DIETRICH
INDUSTRIES, INC. BY:_______________________ DATE:
_____________________ CONSOLIDATION COAL COMPANY
BY:_______________________ DATE: _____________________ CONSOLIDATION
COAL COMPANY BY:_______________________ DATE: _____________________
CONSOLIDATION COAL COMPANY BY:________________________ DATE:
_____________________ CONSOLIDATION COAL COMPANY
BY:________________________ DATE: _____________________ MCELROY COAL
COMPANY BY:________________________ DATE: _____________________
NORTHERN CONTINENTAL OPERATING CO. BY:________________________ DATE:
_____________________ NORTH FAYETTE COAL COMPANY
BY:________________________ DATE: _____________________ QUARTO MINING
COMPANY BY:_______________________ DATE: ___________________ CENTRAL
OHIO COAL COMPANY BY:_______________________ DATE: ____________________
SAGINAW MINING COMPANY BY:_______________________ DATE:
____________________ BOICH MINING COMPANY BY:_______________________
DATE: ____________________ PEABODY COAL COMPANY
BY:_______________________ DATE: ____________________ HAMPDEN COAL
COMPANY, INC. BY:_______________________ DATE: ____________________
WESTMORELAND COAL COMPANY BY:_______________________ DATE:
____________________ SHARPLES COAL COMPANY BY:_______________________
DATE: ____________________ LOWLANDS COAL CORPORATION
BY:_______________________ DATE: ____________________ OLD HICKORY COAL
CORPORATION BY:_______________________ DATE: ____________________ SWAMP
FOX DEVELOPMENT BY:_______________________ DATE: ____________________
BETH ENERGY MINES BY:_______________________ DATE: ____________________
VIRGINIA CREWS COAL COMPANY BY:_______________________ DATE:
_____________________ PIKEVILLE COAL COMPANY BY:_______________________
DATE: _____________________ HOBET MINING, INC.
BY:_______________________ DATE: _____________________ PREMIUM ENERGY,
INC. BY:_______________________ DATE: _____________________ W-P COAL
COMPANY BY:_______________________ DATE: _____________________ U.S.
STEEL MINING CO., INC. BY:_______________________ DATE:
_____________________ SOUTHERN OHIO COAL COMPANY
BY:_______________________ DATE: _____________________ ARCH OF
KENTUCKY, INC. BY:_______________________ DATE: _____________________
KENTUCKY CARBON CORPORATION BY:_______________________ DATE:
_____________________ PENNSYLVANIA ELECTRIC COMPANY
BY:_______________________ DATE: _____________________ JULIANA COAL
COMPANY BY:_______________________ DATE: _____________________ DIETRICH
INDUSTRIES, INC. BY:_______________________ DATE:
_____________________ CONSOLIDATION COAL COMPANY
BY:_______________________ DATE: _____________________ CONSOLIDATION
COAL COMPANY BY:_______________________ DATE: _____________________
CONSOLIDATION COAL COMPANY BY:_______________________ DATE:
_____________________ CONSOLIDATION COAL COMPANY BY:
______________________ DATE: _____________________ MCELROY COAL COMPANY
BY:_______________________ DATE: _____________________ NORTHERN
CONTINENTAL OPERATING CO. BY:_______________________ DATE:
_____________________ NORTH FAYETTE COAL COMPANY
BY:_______________________ DATE: _____________________ M & H COAL
COMPANY BY:_______________________ DATE: _____________________ THE LADY
H COAL COMPANY, INC. BY:_______________________ DATE:
_____________________ CEDAR COAL COMPANY BY:_______________________
DATE: _____________________ ISLAND CREEK COAL COMPANY
BY:_______________________ DATE: _____________________ ELK RUN COAL
COMPANY BY:_______________________ DATE: _____________________ SUPERIOR
MINING AND MINERALS, INC. BY:_______________________ DATE:
_____________________ OLD BEN COAL COMPANY BY:_______________________
DATE: _____________________ SIDNEY COAL COMPANY, INC.
BY:_______________________ DATE: _____________________ NEW ERA COAL
COMPANY BY:_______________________ DATE: _____________________ ARCH OF
WEST VIRGINIA, INC. BY:_______________________ DATE:
_____________________ DAVIDSON MINING, INC. BY:_______________________
DATE: _____________________ TOMMMY CREEK COMPANY
BY:_______________________ DATE: _____________________ STONEY COAL
COMPANY BY:________________________ DATE: _____________________ EAST
GULF FUEL CORPORATION BY:________________________ DATE:
_____________________ HARLEY MINING, INC. BY: _______________________
DATE: _____________________ ZALKIN COAL SALES, INC.
BY:________________________ DATE: _____________________ BIRCHFIELD
MINING, INC. BY: _______________________ DATE: _____________________
MABEN ENERGY CORPORATION BY: _______________________ DATE:
_____________________ M. A. E. WEST, INC. BY: _______________________
DATE: _____________________ HANSFORD SMOKELESS COLLIERIES BY:
_______________________ DATE: _____________________ CONSOLIDATION COAL
COMPANY BY:_______________________ DATE: _____________________ LANGLEY
& MORGAN CORPORATION BY: ______________________ DATE:
____________________ SOVEREIGN COAL CORPORATION
BY:_______________________ DATE: _____________________ NUEAST MINING
CORP. BY:_______________________ DATE: _____________________ COLONY
BAY MINING COMPANY BY:_______________________ DATE:
_____________________ TONEY'S BRANCH COAL COMPANY
BY:_______________________ DATE: _____________________ PEABODY COAL
COMPANY BY:_______________________ DATE: _____________________ EASTERN
ASSOCIATED COAL CORPORATION BY:_______________________ DATE:
_____________________ DUNBAR PLAZA INC. D/B/A DUNBAR TRAVELODGE
BY:_______________________ DATE: _____________________ EAGLEHAWK
CARBON, INC. BY:_______________________ DATE: _____________________
KESSCOAL, INC., CAPITOL FUELS DOCK BY:_______________________ DATE:
_____________________ MONTEREY COAL COMPANY BY:_______________________
DATE: _____________________ AMERICAN ELECTRIC POWER CORP. OHIO POWER
COOK COAL TERMINAL BY:_______________________ DATE:
_____________________ ZIEGLER COAL COMPANY BY:________________________
DATE: _____________________ PEABODY COAL COMPANY
BY:_______________________ DATE: _____________________ OLD BEN COAL
COMPANY BY:_______________________ DATE: _____________________ AMAX
COAL COMPANY BY:_______________________ DATE: _____________________
PEABODY COAL COMPANY BY:_______________________ DATE:
_____________________ PEABODY COAL COMPANY BY:_______________________
DATE: _____________________ ISLAND CREEK COAL COMPANY
BY:_______________________ DATE: _____________________ GREEN RIVER COAL
CO., INC. BY:_______________________ DATE: _____________________ THE
MONONGAHELA RAILWAY COMPANY BY: ______________________ DATE:
_____________________ ONEIDA COAL COMPANY, INC.
BY:_______________________ DATE: _____________________ WEST PENN POWER
COMPANY BY:________________________ DATE: _____________________ BENTLY
COAL CO. BY:_______________________ DATE: _____________________ MECO
INTERNATIONAL, INC. BY:_______________________ DATE:
_____________________ ALOE COAL COMPANY BY:_______________________ DATE:
_____________________ FOUR DIAMONDS CONSTRUCTION, INC.
BY:_______________________ DATE: _____________________ EASTERN
ASSOCIATED COAL CORP. BY:_______________________ DATE:
_____________________ MINOTTE CONTRACTING CORPORATION
BY:_______________________ DATE: _____________________ MONONAGHELA
POWER COMPANY BY:_______________________ DATE: _____________________
THE OHIO VALLEY COAL COMPANY BY:_______________________ DATE:
_____________________ PENNSYLVANIA ELECTRIC COMPANY
BY:_______________________ DATE: _____________________ JULIANA COAL
COMPANY BY:_______________________ DATE: _____________________ DIETRICH
INDUSTRIES, INC. BY:________________________ DATE:
_____________________ CONSOLIDATION COAL COMPANY
BY:_______________________ DATE: _____________________ CONSOLIDATION
COAL COMPANY BY:_______________________ DATE: _____________________
CONSOLIDATION COAL COMPANY BY:_______________________ DATE:
_____________________ CONSOLIDATION COAL COMPANY
BY:_______________________ DATE: _____________________ MCELROY COAL
COMPANY BY:_______________________ DATE: _____________________ NORTHERN
CONTINENTAL OPERATING CO. BY:_______________________ DATE:
_____________________ NORTH FAYETTE COAL COMPANY
BY:_______________________ DATE: _____________________
APPENDIX A
Date Date Date
Charge Charge Complaint
Employer Case No. Filed Served Issued
Island Creek Coal 5-CC-1109-1 7/3/89 7/14/89 7/25/89
Company
Cyprus Emerald 6-CC-1770 6/16/89 6/16/89 8/18/89
Resources Corporation
Gateway Coal Company 6-CC-1772 6/16/89 6/16/89 8/18/89
Tanoma Mining Company,6-CC-1773 6/16/89 6/16/89 8/18/89
Inc.
Iselin Coal 6-CC-1774 6/16/89 6/19/89 8/18/89
Preparation Company
Florence Mining 6-CC-1775 6/16/89 6/19/89 8/18/89
Company
Helvatia Coal Company 6-CC-1776 6/16/89 6/19/89 8/18/89
Keystone Coal Mining 6-CC-1777 6/16/89 6/19/89 8/18/89
Corporation
Greenwich Collieries, 6-CC-1778 6/16/89 6/20/89 8/18/89
Division of Pennsylvania
Mines Corporation
Rushton Mining 6-CC-1779 6/19/89 6/20/89 8/18/89
Company, A Wholly Owned
Subsidiary of Pennsylvania
Mines Corporation
Tunnelton Mining 6-CC-1780 6/19/89 6/20/89 8/18/89
Company
Shannopin Mining 6--C-1781 6/19/89 6/21/89 8/18/89
Company
The Helen Mining 6-CC-1782 6/19/89 6/21/89 8/18/89
Beth Energy Mines, 6-CC-1783 6/19/89 6/19/89 8/18/89
Inc.
U.S. Steel Mining 6-CC-1784 6/20/89 6/20/89 8/18/89
Company
U.S. Steel Mining 6-CC-1785 6/20/89 6/20/89 8/18/89
Company
Southern Ohio Coal 6-CC-1786 6/20/89 6/22/89 8/18/89
Company
Penn Allegh Coal 6-CC-1787 6/20/89 6/21/89 8/18/89
Company
Beth Energy Mines 6-CC-1788 6/20/89 6/21/89 8/18/89
Windsor Coal Company 6-CC-1789-1 6/20/89 6/22/89 8/18/89
Dilltown Facilities, 6-CC-1790 6/20/89 6/21/89 8/18/89
A Division of Pennsylvania
Mines Corporation
Pennsylvania Electric 6-CC-1791 6/20/89 6/21/89 8/18/89
Company
Juliana Coal Company 6-CC-1793 6/20/89 6/21/89 8/18/89
Dietrich Industries, 6-CC-1794 6/21/89 6/22/89 9/18/89
Inc.
Consolidation Coal 6-CC-1795 6/21/89 6/22/89 8/18/89
Company
Consolidation Coal 6-CC-1796 6/21/89 6/22/89 8/18/89
Company
Consolidation Coal 6-CC-1797 6/21/89 6/22/89 8/18/89
Company
Consolidation Coal 6-CC-1798 6/21/89 6/22/89 8/18/89
Company
McElroy Coal Company 6-CC-1799 6/21/89 6/22/89 8/18/89
Northern Continental 6-CC-1800-1 6/21/89 6/22/89 8/18/89
Operating Co.
North Fayette Coal 6-CC-1801 6/22/89 6/23/89 8/18/89
Company
Consolidation Coal 6-CC-1802 6/22/89 6/23/89 8/18/89
Company
(Blacksville #1 Mine)
Consolidation Coal 6-CC-1803 6/22/89 6/23/89 8/18/89
Company
(Robinson #95 Mine)
Consolidation Coal 6-CC-1804 6/22/89 6/23/89 8/18/89
Company
(Loveridge No. 22 Mine)
Consolidation Coal 6-CC-1805 6/22/89 6/23/89 8/18/89
Company
(Osage #3 Mine)
Consolidation Coal 6-CC-1806 6/22/89 6/23/89 8/18/89
Company
(Humphrey #7 Mine)
Consolidation Coal 6-CC-1807 6/22/89 6/23/89 8/18/89
Company
(Arkwright)
Consolidation Coal 6-CC-1808 6/22/89 6/23/89 8/18/89
Company
(Blacksville #2 Mine)
Spring Ridge Coal 6-CC-1809-1 6/22/89 6/27/89 8/18/89
Company
Season-All 6-CC-1811-1 6/23/89 6/26/89 8/18/89
Industries, Inc.
The Monongahela 6-CC-1812 6/23/89 6/27/89 8/18/89
Railway Company
Oneida Coal Company, 6-CC-1813-1 6/23/89 6/27/89 8/18/89
Inc.
West Penn Power 6-CC-1814 6/23/89 6/27/89 8/18/89
Company
Bently Coal Co. 6-CC-1815 6/23/89 6/26/89 8/18/89
Meco International, 6-CC-1816 6/23/89 6/26/89 8/18/89
Inc.
Aloe Coal Company 6-CC-1821 7/7/89 7/10/89 8/18/89
Four Diamonds 6-CC-1822 7/10/89 7/10/89 8/18/89
Construction, Inc.
Eastern Associated 6-CC-1823-1 7/11/89 7/11/89 8/18/89
Coal Corp.
Minotte Contracting 6-CC-1824 7/12/89 7/13/89 8/18/89
Corporation
Monongahela Power 6-CC-1825 7/14/89 7/17/89 8/18/89
Company
The Ohio Valley 8-CC-1404 6/20/89 6/20/89 10/20/89
Coal Company
Quarto Mining Company 8-CC-1406 6/21/89 6/21/89 10/20/89
Central Ohio Coal 8-CC-1407-3 6/21/89 6/21/89 10/20/89
Company
Saginaw Mining 8-CC-1408 6/22/89 6/22/89 10/20/89
Company
Boich Mining Company 8-CC-1409 6/22/89 6/22/89 10/20/89
Peabody Coal Company 8-CC-1412 7/10/89 7/10/89 10/20/89
Hampden Coal Company, 9-CC-1368-1 4/26/89 4/26/89 7/11/89
Inc.
Hampden Coal Company, 9-CC-1390-l 6/16/89 6/19/89 7/11/89
Inc.
Westmoreland Coal 9-CC-1375-1 6/13/89 6/13/89 9/12/89
Company
Sharples Coal 9-CC-1378-2 6/13/89 6/15/89 6/29/89
Corporation
Lowlands Coal 9-CC-1379-2 6/13/89 6/15/89 6/29/89
Corporation
Lowlands Coal 9-CC-1398-1 6/19/89 6/20/89 7/14/89
Corporation
Lowlands Coal 9-CC-1399-1 6/19/89 6/20/89 7/14/89
Corporation
Old Hickory Coal 9-CC-1380-2 6/13/89 6/15/89 6/29/89
Corporation
Swamp Fox Development 9-CC-1381-2 6/13/89 6/15/89 6/29/89
Central Continental 9-CC-1382-1 6/14/89 6/14/89 6/20/89
Operating Company, Inc.
Omar Mining Company 9-CC-1383-1 6/14/89 6/14/89 6/29/89
Princess Beverly 9-CC-1384-1 6/14/89 6/14/89 6/29/89
Donaldson Mine 9-CC-1386-1 6/15/89 6/15/89 6/29/89
Company
High Power Mountain 9-CC-1387-1 6/15/89 6/15/89 6/30/89
Corporation
Rum Creek Coal Sales, 9-CC-1388-1 6/15/89 6/16/89 6/30/89
Inc.
Beth Energy Mines 9-CC-1389-l 6/15/89 6/15/89 6/30/89
Appalachin Mining, 9-CC-1392-1 6/16/89 6/19/89 7/11/89
Inc.
Hatfield Dock and 9-CC-1393-1 6/16/89 6/19/89 7/11/89
Transfer, Inc.
Anchor Mining, Inc. 9-CC-1394-1 6/16/89 6/16/89 7/12/89
Agipcoal USA, Inc. 9-CC-1395-1 6/16/89 6/19/89 7/12/89
Beth Energy Mines 9-CC-1396-1 6/16/89 6/16/89 7/12/89
Virginia Crews Coal 9-CC-1397-1 6/19/89 6/19/89 7/28/89
Company
Pikeville Coal 9-CC-1400-1 6/20/89 6/21/89 7/14/89
Company
Hobet Mining, Inc. 9-CC-1401-1 6/19/89 6/20/89 7/14/89
Premium Energy, Inc. 9-CC-1402-1 6/19/89 6/20/89 7/28/89
W-P Coal Company 9-CC-1403-3 6/26/89 6/26/89 6/30/89
U.S. Steel Mining Co.,9-CC-1405-1 6/20/89 6/20/89 6/27/89
Inc.
Southern Ohio Coal 9-CC-1406-1 6/20/89 6/21/89 7/11/89
Company
Arch of Kentucky, 9-CC-1407-1 6/20/89 6/21/89 7/13/89
Inc.
Kentucky Carbon 9-CC-1408-1 6/20/89 6/21/89 6/30/89
Corporation
M & H Coal Company 9-CC-1409-1 6/20/89 6/21/89 7/21/89
The Lady H Coal 9-CC-1410-l 6/20/89 6/21/89 7/24/89
Company, Inc.
Cedar Coal Company 9-CC-1411-1 6/20/89 6/21/89 7/17/89
Island Creek Coal 9-CC-1416-5 6/28/89 6/28/89 7/12/89
Company
Elk Run Coal Company, 9-CC-1417-1 6/22/89 6/22/89 8/2/89
Inc.
Superior Mining and 9-CC-1418-1 6/22/89 6/23/89 7/24/89
Minerals, Inc.
Old Ben Coal Company 9-CC-1419-1 6/22/89 6/23/89 8/4/89
Sidney Coal Company, 9-CC-1420-1 6/22/89 6/26/89 9/22/89
Inc.
New Era Coal Company 9-CC-1421-1 6/22/89 6/26/89 9/22/89
Arch of West Virginia,9-CC-1422-1 6/22/89 6/27/89 9/22/89
Inc.
Davidson Mining, Inc. 9-CC-1423-1 6/23/89 6/27/89 7/24/89
Tommy Creek Coal 9-CC-1424-1 6/23/89 6/27/89 8/7/89
Company
Stoney Coal Company 9-CC-1425-1 6/23/89 6/27/89 8/7/89
East Gulf Fuel 9-CC-1426-1 6/23/89 6/27/89 8/7/89
Corporation
Harley Mining, Inc. 9-CC-1427-1 6/23/89 6/27/89 7/25/89
Zalkin Coal Sales, 9-CC-1428-1 6/23/89 6/28/89 8/9/89
Inc.
Birchfield Mining, 9-CC-1429-1 6/23/89 6/28/89 7/25/89
Inc.
Maben Energy 9-CC-1430-1 6/23/89 6/28/89 8/7/89
Corporation
M. A. E. West, Inc. 9-CC-1431-1 6/23/89 6/28/89 7/25/89
Hanford Smokeless 9-CC-1432-1 6/23/89 6/28/89 8/9/89
Collieries
Consolidation Coal 9-CC-1433-1 6/23/89 6/28/89 7/18/89
Company
Bituminous Coal 9-CC-1434 6/23/89 6/29/89 10/23/89
Operators Association, Inc.
Northland Resources, 9-CC-1437-1 6/26/89 6/29/89 7/26/89
Inc.
Gauley Coal Sales 9-CC-1438-1 6/27/89 6/29/89 7/18/89
Company
Maple Meadow Mining 9-CC-1439-1 6/27/89 6/29/89 8/9/89
Company
Cannelton Industries, 9-CC-1440-1 6/27/89 6/30/89 7/18/89
Inc.
Nix Mining Company 9-CC-1473 8/17/89 8/17/89 9/21/89
Pax Mining Company 9-CC-1474 8/17/89 8/17/89 9/21/89
Electrical Design 9-CC-1443-2 7/12/89 7/12/89 7/21/89
& Construction Co., Inc.
High Power Energy 9-CC-1444-1 6/29/89 6/30/89 7/20/89
Kanawha Mining 9-CC-1445-1 6/29/89 6/30/89 7/26/89
Company, Inc.
Cyprus Kanawha 9-CC-1447-1 6/30/89 6/30/89 8/8/89
Corporation
Langley & Morgan 9-CC-1448-2 7/13/89 7/13/89 7/20/89
Corporation
Sovereign Coal 9-CC-1450-1 7/7/89 7/10/89 8/18/89
Corporation
Nueast Mining Corp. 9-CC-1451-1 7/11/89 7/11/89 8/1/89
Colony Bay Mining 9-CC-1452-1 7/11/89 7/11/89 8/1/89
Company
Toney's Branch Coal 9-CC-1453-1 7/12/89 7/12/89 7/26/89
Company
Peabody Coal Company 9-CC-1454-1 7/13/89 7/13/89 8/8/89
Eastern Associated 9-CC-1455-1 7/13/89 7/13/89 8/8/89
Coal Corporation
Dunbar Plaza Inc. 9-CC-1456 7/17/89 7/17/89 8/16/89
d/b/a Dunbar Travelodge
Eaglehawk Carbon, 9-CC-1461-1 7/18/89 7/18/89 8/9/89
Inc.
Kesscoal, Inc., 9-CC-1469-1 7/31/89 7/31/89 8/15/89
Capitol Fuels Dock
Kesscoal, Inc. 9-CC-1470-1 7/31/89 8/1/89 8/16/89
Rawl Sales and 9-CC-1475-1 8/18/89 8/18/89 10/13/89
Processing Company, Inc.
U.S. Steel Mining 10-CC-1295 6/22/89 6/27/89 7/12/89
Co., Inc.
Jim Walter Resources, 10-CC-1296 6/22/89 6/22/89 7/21/89
Inc.
Drummond Company, 10-CC-1298-2 6/22/89 6/22/89 7/21/89
Inc.
The Pittsburgh & 10-CC-1299-2 6/22/89 6/22/89 7/21/89
Midway Coal Mining Company
Cardova Trucking 10-CC-1300 6/22/89 6/22/89 7/12/89
Company, Inc.
A.J. Taft Coal Co., 10-CC-1301 6/22/89 6/22/89 7/12/89
Inc.
Imac Energy, Inc. 10-CC-1303 6/27/89 6/27/89 7/12/89
Black Warrior 10-CC-1304 6/27/89 6/27/89 7/12/89
Minerals, Inc.
Black Gold Trucking 10-CC-1305 6/27/89 6/27/89 7/12/89
Company
Gateway Malls, Inc. 10-CC-1307 7/3/89 7/3/89 7/12/89
Blue Square II, Inc. 10-CC-1308 7/3/89 7/3/89 7/21/89
Westmoreland Coal 11-CC-142 4/28/89 4/28/89 6/29/89
Company
Westmoreland Coal 11-CC-146 6/14/89 6/14/89 6/29/89
Company
Harman Mining 11-CC-147 7/7/89 7/7/89 8/29/89
Corporation
Delta Mining, Inc 11-CC-148 7/12/89 7/12/89 8/31/89
Old Ben Coal Company 14-CC-2051-1 6/21/89 6/21/89 12/8/89
Old Ben Coal Company 14-CC-2052-1 6/21/89 6/21/89 12/8/89
Old Ben Coal Company 14-CC-2053-1 6/21/89 6/21/89 12/8/89
Old Ben Coal Company 14-CC-2054-1 6/21/89 6/21/89 12/8/89
Old Ben Coal Company 14-CC-2055-1 6/21/89 6/21/89 12/8/89
Consolidation Coal 14-CC-2056-1 6/21/89 6/21/89 12/8/89
Company
Consolidation Coal 14-CC-2057-1 6/21/89 6/21/89 12/8/89
Company
Consolidation Coal 14-CC-2058-1 6/21/89 6/21/89 12/8/89
Company
Consolidation Coal 14-CC-2059-1 6/21/89 6/21/89 12/8/89
Company
Consolidation Coal 14-CC-2060-1 6/21/89 6/21/89 12/8/89
Company
Consolidation Coal 14-CC-2061-1 6/21/89 6/21/89 12/8/89
Company
Consolidation Coal 14-CC-2062-1 6/21/89 6/21/89 12/8/89
Company
Arch of Illinois, 14-CC-2063-1 6/21/89 6/21/89 12/8/89
Inc.
Arch of Illinois, 14-CC-2064-1 6/21/89 6/21/89 12/8/89
Inc.
Arch of Illinois, 14-CC-2065-1 6/21/89 6/21/89 12/8/89
Inc.
Freeman United Coal 14-CC-2066-1 6/21/89 6/21/89 12/8/89
Mining Company
Freeman United Coal 14-CC-2067-1 6/21/89 6/21/89 12/8/89
Mining Company
Freeman United Coal 14-CC-2068-1 6/21/89 6/21/89 12/8/89
Mining Company
Freeman United Coal
14-CC-2069-1
6/21/89 6/21/89 12/8/89
Mining Company
Monterey Coal Company 14-CC-2070 6/21/89 6/21/89 12/8/89
American Electric 14-CC-2071-1 6/22/89 6/22/89 12/8/89
Power Corp. Ohio
Power Cook Coal Terminal
Zeigler Coal Company 14-CC-2075 6/29/89 6/29/89 12/8/89
Peabody Coal Company 14-CC-2078-1 7/6/89 7/6/89 12/8/89
Old Ben Coal Company 25-CC-677-1 6/19/89 6/19/89 8/31/89
Old Ben Coal Company 25-CC-678-1 6/19/89 6/19/89 8/31/89
Amax Coal Company 25-CC-679 6/19/89 6/19/89 8/31/89
Peabody Coal Company 25-CC-682 7/10/89 7/10/89 8/31/89
Peabody Coal Company 26-CC-476 7/10/89 7/10/89 7/25/89
Island Creek Coal 26-CC-482 7/13/89 7/13/89 7/25/89
Company
Green River Coal Co., 26-CC-489 7/14/89 7/14/89 7/25/89
Inc.
APPENDIX B
Island Creek Coal Company Cyprus Emerald Resources Corporation Gateway
Coal Company Tanoma Mining Company, Inc. Iselin Coal Preparation
Company Florence Mining Company Helvatia Coal Company Keystone Coal
Mining Corporation Greenwich Collieries, A Division of
Pennsylvania Mines Corporation Rushton Mining Company, A Wholly
Owned Subsidiary of Pennsylvania
Mines Corporation Tunnelton Mining Company Shannopin Mining Company
The Helen Mining Beth Energy Mines, Inc. U.S. Steel Mining Company
Southern Ohio Coal Company Penn Allegh Coal Company Dillton Facilities,
A Division of
Pennsylvania Mines Corporation Windsor Coal Company Pennsylvania
Electric Company Juliana Coal Company Dietrich Industries, Inc.
Consolidation Coal Company McElroy Coal Company Northern Continental
Operating Co. North Fayette Coal Company Spring Ridge Coal Company
Season-All Industries, Inc. The Monongahela Railway Company Oneida Coal
Company, Inc. West Penn Power Company Bently Coal Co. Meco
International, Inc. Aloe Coal Company Four Diamonds Construction, Inc.
Eastern Associated Coal Corp. Minotte Contracting Corporation
Monongahela Power Company The Ohio Valley Coal Company Quarto Mining
Company Central Ohio Coal Company Saginaw Mining Company Boich Mining
Company Peabody Coal Company Hampden Coal Company, Inc. Westmoreland
Coal Company Sharples Coal Corporation Lowlands Coal Corporation Old
Hickory Coal Corporation Swamp Fox Development Central Continental
Operating
Company, Inc. Omar Mining Company Princess Beverly Donaldson Mine
Company High Power Mountain Corporation Rum Creek Coal Sales, Inc.
Appalachin Mining, Inc. Hatfield Dock and Transfer, Inc. Anchor
Mining, Inc. Agipcoal USA, Inc. Virginia Crews Coal Company Pikeville
Coal Company Hobet Mining, Inc. Premium Energy, Inc. W-P Coal Company
Arch of Kentucky, Inc. Kentucky Carbon Corporation M & H Coal Company
The Lady H Coal Company, Inc. Cedar Coal Company Elk Run Coal Company,
Inc. Superior Mining and Minerals, Inc. Old Ben Coal Company Sidney
Coal Company, Inc. New Era Coal Company Arch of West Virginia, Inc.
Davidson Mining, Inc. Tommy Creek Coal Company Stoney Coal Company East
Gulf Fuel Corporation Harley Mining, Inc. Zalkin Coal Sales, Inc.
Birchfield Mining, Inc. Maben Energy Corporation M. A. E. West, Inc.
Hansford Smokeless Collieries Bituminous Coal Operators
Association, Inc. Northland Resources, Inc. Gauley Coal Sales
Company Maple Meadow Mining Company Cannelton Industries, Inc. Nix
Mining Company Pax Mining Company High Power Energy Kanawha Mining
Company, Inc. Cyprus Kanawha Corporation Langley & Morgan Corporation
Sovereign Coal Corporation Nueast Mining Corp. Colony Bay Mining
Company Toney's Branch Coal Company Eastern Associated Coal Corporation
Dunbar Plan Inc. d/b/a Dunbar Travelodge Eaglehawk Carbon, Inc. Kanawha
Valley Labor Council Kesscoal, Inc., Capitol Fuels Dock Kesscoal, Inc.
Rawl Sales and Processing
Company, Inc. Jim Walter Resources, Inc. Drummond Company, Inc.
The Pittsburgh & Midway Coal
Mining Company Cardova Trucking Company, Inc. A.J. Taft Coal Co.,
Inc. Imac Energy, Inc. Black Warrior Minerals, Inc. Black Gold
Trucking Company Electrical Design & Construction
Co., Inc. Gateway Malls, Inc. Blue Square II, Inc. Harman Mining
Corporation Delta Mining, Inc. Arch of Illinois, Inc. Freeman United
Coal Mining Company Monterey Coal Company American Electric Power Corp.,
Ohio Power Cook Coal Terminal Ziegler Coal Company Amax Coal Company
Old Ben Coal Company Green River Coal Co., Inc.
APPENDIX C
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 engage in or induce or encourage any individual employed
by any of the Employers listed in appendix B, or any other person
engaged in commerce or in an industry affecting commerce, to engage in a
strike or a refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities, or to perform any services,
or threaten, coerce, or restrain any of the Employers listed in appendix
B, or any other person engaged in commerce, or in an industry affecting
commerce where, in either case, an object thereof is to force or require
any of the Employers listed in appendix B, or any other person to cease
using, selling, handling, transporting, or otherwise dealing in the
products of any other producer, processor, or manufacturer, or to force
or require any of the Employers listed in appendix B, or any other
person to cease doing business with any other person in violation of the
National Labor Relations Act.
INTERNATIONAL UNION, UNITED
MINE WORKERS OF AMERICA
(Labor Organization)
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, 611 North Building,
Suite 400, Saint Louis, Missouri 63101-1932, Telephone 314--425--4361.
'Footnotes to the Decision and Order'
/1/ After the settlement was forwarded to the Board, Charging Party
Freeman United Coal Mining Company requested leave to join in the
settlement. The request is granted. In accordance with the General
Counsel's recommendation, we also approve the requests made by Arch of
Kentucky, Inc., Arch of West Virginia, Inc., Harmon Mining Corp., and
Spring Ridge Coal Co. to withdraw their charges in Cases
9--CC--1407--1,9--CC--1449, 9--CC--1422--1, 11--CC--147, and
6--CC--1809--1--2, and remand these cases to the Regional Director for
further appropriate action.
/2/ See NLRB Casehandling Manual Sec. 10130.7.
/3/ While it is true that the General Counsel will have to show in
any future contempt proceeding that the allegedly contumacious secondary
conduct engaged in by the Respondent is actually unlawful and in
violation of the order, this is always true in a contempt proceeding.
The General Counsel's task would not necessarily be made any easier by
the absence of a nonadmission clause. Even if the Respondent admitted
that it engaged in unlawful conduct in the instant cases, that would not
necessarily tend to establish that it engaged in contumacious conduct in
some future case.
/4/ 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."
302 NLRB No. 161
D--1993
Columbus and
Canton, OH;
Ashland, KY;
Roanoke, VA;
Fort Wayne, IN;
Kingsport, TN;
and Three River, MI
AMERICAN ELECTRIC POWER COMPANY AND ITS SUBSIDIARY COLUMBUS SOUTHERN
POWER COMPANY, FORMERLY KNOWN AS COLUMBUS & SOUTHERN OHIO ELECTRIC
COMPANY and LOCAL UNION NO. 1466, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL--CIO--CLC AMERICAN ELECTRIC POWER COMPANY AND
ITS SUBSIDIARY KENTUCKY POWER COMPANY AMERICAN ELECTRIC POWER COMPANY
AND ITS SUBSIDIARY APPALACHIAN POWER COMPANY and LOCAL UNION NO. 978,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL--CIO--CLC AMERICAN
ELECTRIC POWER COMPANY AND ITS SUBSIDIARY INDIANA MICHIGAN POWER
COMPANY, FORMERLY KNOWN AS INDIANA & MICHIGAN ELECTRIC COMPANY and LOCAL
UNION NO. 1392, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL--CIO--CLC AMERICAN ELECTRIC POWER COMPANY AND ITS SUBSIDIARY KINGS
PORT POWER COMPANY and LOCAL UNION NO. 934, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL--CIO--CLC AMERICAN ELECTRIC POWER COMPANY AND
ITS SUBSIDIARY MICHIGAN POWER COMPANY and LOCAL UNION NO. 876,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL--CIO--CLC AMERICAN
ELECTRIC POWER COMPANY AND ITS SUBSIDIARY OHIO POWER COMPANY and LOCAL
UNION NO. 981, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL--CIO--CLC
Cases 9--CA--15654-1, 9--CA--15654-2, 9--CA--15654-3, 9--CA--15654-4,
9--CA--15654-5, 9--CA--15654-6, 9--CA--15654-7
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER
On April 10, 1989, Administrative Law Judge Martin J. Linsky issued
the attached decision. The Respondents filed exceptions and a supporting
brief, and the General Counsel filed limited exceptions and a supporting
brief. The Charging Parties filed cross-exceptions and a brief in
support of their cross-exceptions and in opposition to the Respondents'
exceptions.
The National Labor Relations Board has considered the decision and
the record in light of the exceptions and briefs and has decided to
affirm the judge's rulings, findings, /1/ and conclusions as modified
and to adopt the recommended Order as modified.
1. The judge, applying the Board's decision in Peerless Publications,
283 NLRB 334 (1987), on remand from the D.C. Circuit sub nom. Newspaper
Guild Local 10 v. NLRB, 636 F.2d 550 (1980), found that the Respondents
violated Section 8(a) (5) and (1) of the Act by unilaterally issuing a
Corporate Code of Ethics in February 1980 and certain provisions of a
revised Corporate Code of Ethics in January 1987 without first giving
the Unions notice and an opportunity to bargain. /2/ We agree, with the
modifications set forth below, that the Respondents violated the Act as
alleged.
The issue in Peerless Publications was whether the respondent, a
publisher of a newspaper, was obligated to bargain with the union before
issuing its General Office Rules and Code of Ethics. There the Board
held that, although rules or codes of conduct governing employee
behavior with constituent penalties for their breach constitute "terms
and conditions of employment," an employer may, under certain
circumstances, overcome the presumption of mandatory bargainability and
impose such terms and conditions of employment without prior bargaining.
In this regard, the Board held that in order to overcome this
presumption:
(I)t is clear initially that the subject matter sought to be
addressed by the employer must go to the "protection of the core
purposes of the enterprise." When that is the case, the rule must
on its face be (1) narrowly tailored in terms of substance, to
meet with particularity only the employer's legitimate and
necessary objectives, without being overly broad, vague, or
ambiguous; and (2) appropriately limited in its applicability to
affected employees to accomplish the necessarily limited
objectives. (Id. at 335.)
The concept of a "core purpose" is derived from the circuit court's
citation in Peerless Publications to Justice Stewart's concurring
opinion in Fibreboard Corp. v. NLRB, 379 U.S. 203, 217 (1964). /3/ The
court in Peerless Publications rejected the union's contention that
every matter touching in any way upon conditions of employment is
mandatorily bargainable under the Act. The court cited Justice
Stewart's Fibreboard concurrence for the proposition that the language
of Section 8(d) of the Act, while sweeping, must be construed to exclude
various kinds of management decisions from the scope of the duty to
bargain if the principle of management control over basic decisions
concerning the enterprise is to be preserved. The court explained that
such decisions "lie at the core of entrepreneurial control . . . are
fundamental to the basic direction of a corporate enterprise . . . or
concern its basic scope . . . ." 636 F.2d at 559--560. /4/
On remand from the court, the Board, although reaffirming the view
that protection of the editorial integrity of a newspaper lies at the
core of publishing control, found it unnecessary to decide which, if
any, of the ethics code provisions were restricted to subject matter
necessary to the protection of the core purposes of the enterprise. The
Board found that even assuming that the provisions were so restricted,
the provisions did not withstand scrutiny because they were overly
broad, open-ended, vague, and ambiguous.
In the instant case, the judge, applying the Peerless Publications
balancing test to the Respondents' Corporate Codes of Ethics, first
found that the provisions of the Codes constitute terms and conditions
of employment because violations of the provisions could subject the
violator to a penalty. Next examining the content of the provisions of
the Codes, the judge found that the original Corporate Code of Ethics
was overly broad in its entirety because it applied not only to
employees but also to the families of employees and to "entities in
which the employee had an interest." Regarding the revised Corporate
Code of Ethics, the judge found that only paragraphs 5 through 9 and
paragraph 10 as it applies to employees "address a subject
matter---integrity and lawful behavior---that go to the protect ion of
the core purposes of the enterprise." /5/ Finally, the judge found that
the remaining provisions of the revised Corporate Code of Ethics
suffered variously from vagueness, ambiguity, and overbreadth.
As a threshold matter, we agree with the judge, for the reasons set
forth in his decision, that the provisions of the Codes constitute terms
and conditions of employment. Contrary to the judge, we find, however,
that as a matter of proof the Respondents have failed to demonstrate
that the subject matter addressed in any of the provisions of the Codes
goes to the "protection of the core purposes of the enterprise."
The Respondents contend that the core purpose of their business is
"maintaining integrity," and that the provisions of the Codes protect
this core purpose. On the other hand, the Unions contend that "ethical
conduct" is not a core purpose of an enterprise whose primary function
is the generation and transmission of electricity.
In support of their position regarding the enterprise's core purpose,
the Respondents cite the testimony of Joseph Vipperman, executive vice
president of operations of American Electric Power Service Corporation
(AEP Service Corporation). /6/ Vipperman testified that the original
Corporate Code of Ethics was issued as a result of a recommendation from
AEP's outside auditors that was based on passage of the Foreign Corrupt
Practices Act of 1977. An internal memorandum to Vipperman that
accompanied a draft of the Code also referred to "a recent SEC ruling
requiring a statement by management on internal control to be filed in
annual reports." According to Vipperman, the auditors did not recommend
any specific provisions to be included in the Code and suggested only
that any Code formulated should at a minimum apply to managerial
employees. In this regard, Vipperman stated that he suggested the
substantive provisions of the Code based on documents that already
existed within the Company such as employee handbooks and decided to
broaden its coverage to all employees. On cross-examination by the
Respondents' counsel, Vipperman indicated that the Respondent operating
companies are subject to "fairly pervasive regulation" by the state and
Federal governments. Finally, when questioned by the Respondents'
counsel regarding the relationship between the Codes and "the integrity
of the operating companies," Vipperman responded:
(B)ecause we're regulated, most of our customers don't have
another opportunity to go some place else if they don't like the
way we conduct business. And I think it's more important for us
then to behave in an ethical manner maybe even than some other
company that might.
We recognize that "integrity"---the subject matter of the
Respondents' Corporate Codes of Ethics---is an important aspect of the
operation of any business, including an electric power company. From
this general perspective, the Respondents' Codes therefore address
desirable standards of behavior to be encouraged among employees. In the
context, however, of the limited exception to the rule of mandatory
bargainability set forth in Peerless Publications, we find that the
evidence does not demonstrate that integrity goes to the protection of
the core purposes of the Respondents' enterprise.
The employee handbooks of the Respondent operating companies state,
"Our job is generating electricity and getting it to where it's used,
and to do both with maximum efficiency and minimum impact on the
environment." Although Vipperman testified that in the performance of
these duties the Respondents are subject to pervasive regulation, there
is no evidence in the record to suggest that specific provisions of the
Codes were intended to meet state or Federal licensing or reporting
requirements. In this regard, despite Vipperman's conclusory testimony
that the original Code was promulgated because of the passage of the
Foreign Corrupt Practices Act, it appears that the Code was mainly a
compilation of preexisting company documents rather than a response
targeted to specific Governmental regulations governing the production
of electricity. Further, the Respondents have not demonstrated why the
nature of their Government regulation requires that all the many
categories of production and maintenance employees included in their
bargaining agreements with the Unions were subject to the Codes'
provisions.
For the above reasons, we find that the Respondents have not shown
that the subject matter of their Corporate Codes of Ethics is necessary
for the protection of the core purposes of the Respondents'
enterprise---the generation and transmission of electricity. See
Peerless Publications, supra, 283 NLRB at 335. The fact that the
Respondents operate within a regulated industry does not prove that the
subject matter of the Codes constitutes the sort of "entrepreneurial"
decision that can be exempt from the scope of the duty to bargain.
Accordingly, we find that the Respondents have not overcome the initial
presumption of mandatory bargainability under Peerless Publications. See
GHR Energy Corp., 294 NLRB No. 76, slip op. at 5--6 (June 13, 1989),
enfd. mem. 924 F.2d 1055 (5th Cir. 1991), in which the Board, applying
Peerless Publications, above, found that the respondent petrochemical
company violated Section 8(a) (5) and (1) of the Act by unilaterally
issuing a "Policy Statement' on Disloyalty" which it intended to enforce
with disciplinary sanctions.
Moreover, we find that even if the Respondents had overcome this
presumption, the provisions of the Codes are deficient in other
respects. In this regard, we agree with the judge that the original
Corporate Code of Ethics is overly broad in view of paragraph 14, /7/
and that it should be rescinded in its entirety. Additionally, we agree
with the judge's analysis regarding paragraphs 1 through 4, 10 (as it
applies to employees' families), and 11 through 13 of the revised
Corporate Code of Ethics, and with his findings that these provisions
suffer variously from vagueness, ambiguity, and overbreadth. We find,
however, contrary to the judge, and in agreement with the Unions'
exceptions, that paragraphs 5 through 9 and paragraph 10 (as it applies
to employees) are also deficient because, at the least, they are not
appropriately limited to affected employees as required by Peerless
Publications, above. Accordingly, we find that the revised Corporate
Code of Ethics should also be rescinded in its entirety. In light of the
above findings, we shall amend the judge's Conclusions of Law and Order
and issue a new notice.
2. We agree with the judge that Respondent American Electric Power
Company (AEP) is a proper party to this proceeding. In so finding, we
rely on the "direct participation" theory of intercorporate liability as
discussed in Esmark, Inc. v. NLRB, 887 F.2d 739, 752--760 (7th Cir.
1989), remanding sub nom. Swift Independent Corp., 289 NLRB 423 (1988).
Pursuant to Esmark, when a parent corporation disregards the separate
legal personality of its subsidiary (and the subsidiary's own
decision-making "paraphernalia") and exercises direct control over a
specific transaction, derivative liability for the subsidiary's unfair
labor practices will be imposed on the parent. Id. at 757. In the
instant case, in 1979, Vipperman, who was then the controller of AEP
Service Corporation, directed AEP Service Corporation personnel to draft
a Corporate Code of Ethics based on certain documents that existed
within the Company. The resulting Code was drafted without input from or
consultation with the operating companies. Vipperman sent the completed
draft to W. S. White, chairman of the board and chief executive officer
of AEP, AEP Service Corporation, and each of the operating companies,
for his approval. In February 1980, the Code was distributed to
employees of AEP Service Corporation and AEP's existing operating
companies with a cover letter from White. The letter requested that
employees read the Code and stated that, inter alia, "all questions
concerning the administration of the policy should be directed to J. H.
Vipperman, controller." Vipperman testified that the Code is reviewed
annually by the controller's office at AEP Service Corporation to
determine if revisions are necessary.
In view of the above, we find that AEP's conduct with respect to the
promulgation and administration of the Code went beyond active
participation in the affairs of its subsidiaries through the normal
decisionmaking channels and constituted impermissible "direct" control
in disregard of the subsidiaries' corporate forms. We therefore find
that under Esmark, above, Respondent AEP is liable for the unfair labor
practices committed by its operating companies with respect to the
Corporate Codes of Ethics.
Amended Conclusions of Law
Substitute the following for Conclusion of Law 3.
"3. The Respondents violated Section 8(a)(5) and (1) of the Act by
issuing a Corporate Code of Ethics in February 1980 and a revised
Corporate Code of Ethics in January 1987 without first giving prior
notice and opportunity to bargain to the Unions."
ORDER
The National Labor Relations Board adopts the recommended Order of
the administrative law judge as modified below and orders that the
Respondents, American Electric Power Company, Columbus, Ohio; Columbus
Southern Power Company, Columbus, Ohio; Kentucky Power Company,
Ashland, Kentucky; Appalachian Power Company, Roanoke, Virginia;
Indiana Michigan Power Company, Fort Wayne, Indiana; Kingsport Power
Company, Kingsport, Tennessee; Michigan Power Company, Three River,
Michigan; and Ohio Power Company, Canton, Ohio, their officers, agents,
successors, and assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(a).
"(a) Rescind in writing the original Corporate Code of Ethics issued
in February 1980 in its entirety and the revised Corporate Code of
Ethics issued in January 1987 in its entirety, to the extent they
pertain to bargaining unit employees represented by Local Union Nos.
1466, 978, 1392, 934, 876, and 981 of the International Brotherhood of
Electrical Workers, AFL--CLO--CLC."
2. Substitute the attached notice for that of the administrative law
judge.
Dated, Washington, D.C. May 17, 1991
Mary Miller Cracraft, Member
Dennis M. Devaney, Member
Clifford R. Oviatt, Jr., Member
NATIONAL LABOR RELATIONS BOARD
CHAIRMAN STEPHENS, concurring.
I join my colleagues' opinion because I regard it as a correct and
reasonable application of existing law to the facts of this case and
because I would not favor changing the law in any way that would produce
a different result. I write separately to express my view that the
Board's decision in Peerless Publications, 283 NLRB 334 (1987), on
remand from sub nom. Newspaper Guild Local 10 v. NLRB, 636 F.2d 550
(D.C. Cir. 1980), reflected the special nature of the employer involved
there---a newspaper---and that its rationale is not well suited to
determining mandatory subjects of bargaining in other industries. I an
uncomfortable in particular with such concepts as "overbreadth" and
"vagueness," which make it appear as if we are trying to determine
whether an employer's rules would pass muster under the first amendment.
/1/
Formulating a code of ethics applicable to the conduct of employees
is not an "entrepreneurial" act in any ordinary sense of the word. I
would not treat such a code differently from any other set of rules of
conduct that an employer might seek to apply to its employees. Such
rules are presumptively mandatory subjects of bargaining, and exceptions
would be rare. /2/ Finding that such rules are mandatory subjects means
only that the respondent must bargain with the union about them, not
that it must change them to make them less vague.
Of course vagueness in a rule might be something a
collective-bargaining representative would wish to bargain about.
Paragraph 7 of the Code is a case in point. It provides:
No false or artificial entries shall directly or indirectly be
made to any books or records of the Company or any subsidiary for
any reason. Employees shall not directly or indirectly engage in
any arrangements that result in such a prohibited act.
The judge excluded this paragraph from those which he found were
mandatory subjects of bargaining because he regarded it as a "quite
reasonable" rule that simply tells employees that they should obey the
law. He believed this went to the "credibility of the business" and
thus involved a "core purpose" over which the Respondent should not have
to bargain. I agree with the majority opinion's reasoning that upright
employee behavior is not a core purpose of a utility company in the same
sense that avoiding conduct that compromises a reputation for unbiased
journalism might be a core purpose of a newspaper. The holding of
Peerless_Publications thus does not dictate a finding that this
provision reflects a strictly entrepreneurial concern. But I would focus
rather on the fact that employees might reasonably be concerned to know,
for example, what the Respondent thought constituted an "artificial
entry" and whether an employee who mistakenly misrecorded his arrival
time on a sign-in log was guilty of violating that rule. In other words,
the Union would not be bargaining for the right of employees to be
dishonest or disobey the law, but more likely would be bargaining to
establish the parameters of the Code of Ethics as it affected the unit
employees.
In sum, it is no interest of ours whether the Respondent wishes to
embody broad or vague rules governing employee conduct in a Code of
Ethics. To the extent the Respondent plans to apply its Code of Ethics
to the unit employees, however, it must negotiate with their
collective-bargaining representative about them.
Dated, Washington, D.C. May 17, 1991
James M. Stephens, Chairman
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 refuse to bargain collectively with Local Unions Nos.
1466, 978, 1392, 934, 876, and 981, International Brotherhood of
Electrical Workers, AFL--CIO--CLC, respectively, on request, about terms
and conditions of employment embodied in the Corporate Code of Ethics.
WE WILL NOT unilaterally promulgate Corporate Codes of Ethics
affecting terms and conditions of employment, or enforce such
unilaterally promulgated Corporate Codes of Ethics, without giving the
Unions prior notice and opportunity to bargain.
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 rescind in writing the original Corporate Code of
Ethics in its entirety, and the revised Corporate Code of Ethics in its
entirety, to the extent they pertain to bargaining unit employees
represented by the Unions.
WE WILL, on request, bargain with the Unions concerning terms and
conditions of employment to be contained in any new Corporate Code of
Ethics and, if agreement is reached, embody it in a signed agreement.
AMERICAN ELECTRIC POWER
COMPANY AND ITS SUBSIDIARIES
COLUMBUS SOUTHERN POWER
COMPANY, KENTUCKY POWER
COMPANY, APPALACHIAN POWER
COMPANY, INDIANA MICHIGAN
POWER COMPANY, KINGS PORT
POWER COMPANY, MICHIGAN
POWER COMPANY, AND OHIO
POWER COMPANY
(Employers)
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, 550 Main Street, Room
3003, Cincinnati, Ohio 45202-3721, Telephone 513--684--3663.
'Footnotes to the Decision and Order'
/1/ In agreeing with the judge that the complaint was properly
amended at the hearing to allege the application of the Corporate Code
of Ethics to Columbus Southern Power Company (CSP) in December 1985 and
the issuance of the revised Corporate Code of Ethics in January 1987, we
note that the Board can add new allegations to a complaint based on
events that occur after a charge is filed if the allegations are related
to the conduct alleged in the timely charge and developed from that
conduct while the charge was pending before the Board. See Davis
Electrical Constructors, 291 NLRB No. 17, slip op. at 6 (Sept. 30, 1988)
(citing NLRB v. Fant Milling Co., 360 U.S. 301, 307 (1959)).
/2/ Respondent American Electric Power Company (AEP) and its
subsidiaries generate and transmit electrical power. The Unions
represent various classifications of the Respondents' production and
maintenance employees.
/3/ In Fibreboard, the Supreme Court held that an employer was
required to bargain about its decision to subcontract certain
maintenance work previously performed by unionized employees.
/4/ We note that the court in Peerless Publications, in addressing
the union's contention that the rationale of the Fibreboard concurrence
should be limited to the commitment of capital investment and similar
subjects, found that integrity lies at the core of publishing control
and that "(i)n a very real sense, that characteristic is to a newspaper
or magazine what machinery is to a manufacturer." 636 F.2d at 560.
/5/ These provisions pertain generally to the employees' duty to obey
the law, the use of company funds, and the prohibition of bribes and
kickbacks.
/6/ AEP Service Corporation provides management and technical
services to AEP and its operating companies.
/7/ Par. 14 states: "The foregoing guidelines apply not only to each
employee as an individual but also to his/her family and to entities in
which he/she has an interest." Par. 14 was deleted in the revised Code.
'Footnotes for the Concurrence'
/1/ Such concepts are relevant, of course, when rules applying to
activities protected by Sec. 7 are involved, because vague restrictions
on such activities as union solicitation could chill the exercise of
those protected rights. In GHR Energy Corp., 294 NLRB No. 76, slip op.
5--6 (June 13, 1989), enfd. mem. 924 F.2d 1055 (5th Cir. 1991), we
applied the Peerless Publications vagueness test to a "Policy Statement
on Disloyalty," but it had special relevance there because the
respondent had such a broad and vague prohibition against "disloyal"
actions or statements that employees could reasonably have felt
intimidated from exercising rights under Sec. 7.
/2/ The Code was clearly more than a list of purely precatory
statements, and thus functioned like work rules, even though many of the
rules seemed more relevant to employees in the executive ranks than to
production and maintenance employees. The judge found, with adequate
support in the record, that violating provisions of the code could
subject employees to discipline.
Vyrone Cravannas, Esq., of Cincinnati, OH for the General Counsel.
John A. McGuinn, Esq., of Washington, DC and
Frederick L. Sagan, Esq., of Columbus, OH for Respondents.
Robert D. Kurnick, Esq., of Washington, DC for the Charging Parties.
DECISION
Statement of the Case
MARTIN J. LINSKY, Administrative Law Judge. On 5 August 1980 charges
were tiled by IBEW Locals 1466, 978, 1392, 934, 876, and 981 against
American Electric Power Company and its subsidiaries Columbus Southern
Power Company (formerly known as Columbus and Southern Ohio Electric
Company), Kentucky Power Company, Appalachian Power Company, Indiana
Michigan Power Company (formerly known as Indiana and Michigan Electric
Company), Kingsport Power Company, Michigan Power Company, and Ohio
Power Company, Respondents herein.
The charges allege that Respondents violated Section 8(a)(l) and (5)
when they issued a Corporate Code of Ethics without first giving notice
and opportunity to bargain to the Union.
The Board stayed further proceedings regarding these charges pending
the outcome of litigation in a case which raised similar issues. On 13
August 1980 the US Court of Appeals for the District of Columbia Circuit
issued its decision in that case. Newspaper Guild Local 10 (Peerless
Publications) v. NLRB, 636 F.2d 550 (DC Cir. 1980). The Court remanded
the case to the Board to reconsider its earlier decision in the same
case in light of the Court's decision. The Board did so in a decision
which issued on 26 March 1987. Peerless Publications, Inc., 283 NLRB
No. 54 (1987). Thereafter, on 24 March 1988, the National Labor
Relations Board, by the Regional Director for Region 9, issued a
Consolidated Complaint, which as later amended at the hearing, alleges
that Respondents violated Section 8(a) (l) and (5) of the Act when it
issued a Corporate Code of Ethics and when it issued a revised Corporate
Code of Ethics thereafter. Respondents deny they violated the Act in
any way.
A hearing was held before me in Columbus, Ohio, on 28 June 1988 and
26 July 1988.
Upon the entire record in this case, to include post-hearing briefs
submitted on behalf of the General Counsel, Respondents, and, Charging
Parties, and upon my observation of the demeanor of the witnesses, /1/ I
make the following:
I. Findings of Fact
At all times material herein, Respondent American Electric Power,
herein AEP, a corporation, through its various subsidiaries, has been
engaged in the purchase, production, transmission, storage and
non-retail sale and distribution of electricity.
During the past 12 months, a representative period, Respondent AEP,
in the course and conduct of its business operations described above,
purchased and received at its various facilities goods, materials and
products valued in excess of $50,000 directly from states other than the
states in which those facilities are located.
Respondent AEP is now, and has been at all times material herein, an
employer engaged in commerce within the meaning of Section 2(2), (6) and
(7) of the Act.
At all times material herein, Respondent Columbus Southern, a
corporation with an office and place of business in Columbus, Ohio,
herein called Respondent Columbus Southern's facility, has been engaged
in the purchase, production, transmission, storage and the non-retail
sale and distribution of electricity.
During the past 12 months, a representative period, Respondent
Columbus Southern, in the course and conduct of its business operations
described above purchased and received at its Columbus, Ohio facility
products, goods and materials valued in excess of $50,000 directly from
points outside the State of Ohio.
Respondent Columbus Southern is now, and has been at all times
material herein, an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
At all times material herein, Respondent Kentucky Power, a
corporation with an office and place of business in Ashland, Kentucky,
herein called Respondent Kentucky Power's facility, has been engaged in
the purchase, production, transmission, storage and the non-retail sale
and distribution of electricity.
During the past 12 months, a representative period, Respondent
Kentucky Power, in the course and conduct of its business operations
described above purchased and received at its Ashland, Kentucky facility
products, goods and materials valued in excess of $50,000 directly from
points outside the State of Kentucky.
Respondent Kentucky Power is now, and has been at all times material
herein, an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
At all times material herein, Respondent Appalachian Power, a
corporation with an office and place of business in Roanoke, Virginia,
herein called Respondent Appalachian Power's facility, has been engaged
in the purchase, production, transmission, storage and the non-retail
sale and distribution of electricity.
During the past 12 months, a representative period, Respondent
Appalachian Power, in the course and conduct of its business operations
described above purchased and received at its Roanoke, Virginia facility
products, goods and materials valued in excess of $50,000 directly from
points outside the State of Virginia.
Respondent Appalachian Power is now, and has been at all times
material herein, an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
At all times material herein, Respondent Indiana Michigan, a
corporation with an office and place of business in Fort Wayne, Indiana,
herein called Respondent Indiana Michigan's facility, has been engaged
in the purchase, production, transmission, storage and the non-retail
sale and distribution of electricity.
During the past 12 months, a representative period, Respondent
Indiana Michigan, in the course and conduct of its business operations
described above purchased and received at its Fort Wayne, Indiana
facility products, goods and materials valued in excess of $50,000
directly from points outside the State of Indiana.
Respondent Indiana Michigan is now, has been at all times material
herein, an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
At all times material herein, Respondent Kingsport Power, a
corporation with an office and place of business in Kingsport,
Tennessee, herein called Respondent Kingsport Power's facility, has been
engaged in the purchase, production, transmission, storage and the
non-retail sale and distribution of electricity.
During the past 12 months, a representative period, Respondent
Kingsport Power, in the course and conduct of its business operations
described above purchased and received at its Kingsport, Tennessee
facility products, goods and materials valued in excess of $50,000
directly from points outside the State of Tennessee.
Respondent Kingsport Power is now, has been at all times material
herein, an employer engaged in commerce within the meaning of Section
2(2), (b) and (7) of the Act.
At all times material herein, Respondent Michigan Power, a
corporation with an office and place of business in Three River,
Michigan, herein called Respondent Michigan Power's facility, has been
engaged in the purchase, production, transmission, storage and the
non-retail sale and distribution of electricity.
During the past 12 months, a representative period, Respondent
Michigan Power, in the course and conduct of its business operations
described above purchased and received at its Three River Michigan
facility products, goods and materials valued in excess of $50,000
directly from points outside the State of Michigan.
Respondent Michigan Power is now, and has been at all times material
herein, an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
At all times material herein, Respondent Ohio Power, a corporation
with an office and place of business in Canton, Ohio, herein called
Respondent Ohio Power's facility, has been engaged in the purchase,
production, transmission, storage and the non-retail sale and
distribution of electricity.
During the past 12 months, a representative period, Respondent Ohio
Power, in the course and conduct of its business operations described
above purchased and received at its Canton, Ohio facility products,
goods and materials valued in excess of $50,000 directly from points
outside the State of Ohio.
Respondent Ohio Power is now, has been at all times material herein,
an employer engaged in commerce within the meaning of Section 2(2), (6)
and (7) of the Act.
II. Labor Organizations Involved
Respondent admits, and I find, that Local 1466, Local 978, Local
1392, Local 394, Local 876 and Local 981, all of which are affiliated
locals of the International Brotherhood of Electrical Workers,
AFL-CIO-CLC, are now, and have been at all times material herein, labor
organizations within the meaning of Section 2(5) of the Act.
III. The Alleged Unfair Labor Practices
It was stipulated that Respondents' Corporate Code of Ethics was
issued and distributed to the employees of Kentucky Power Company,
Appalachian Power Company, Indiana Michigan Power Company, Kingsport
Power Company, Michigan Power Company, and Ohio Power Company in or
about February 1980 without Respondent giving prior notice or
opportunity to bargain to the Union.
The Charging Party IBEW Locals represent bargaining unit employees in
each of the aforementioned Power Companies which are subsidiaries of
AEP, which is a holding company. /2/
The record further reflects that the Corporate Code of Ethics was
issued in late December 1985 to bargaining unit employees at Columbus
Southern Power Company without giving prior notice and opportunity to
bargain to the Union. The bargaining unit employees at Columbus
Southern Power Company are represented by Local 1466, IBEW.
The Chairman and Chief Executive officer of AEP and all its
subsidiaries is N.S. White, Jr. It was the decision of W.S. White,
Jr., to issue the Corporate Code of Ethics in February 1980 and,
thereafter, in January 1987, to issue a revised Corporate Code of
Ethics.
All of the subsidiaries involved in this case are admitted by counsel
for Respondents to be employers within the meaning of the Act. Section
2(2) of the Act defines employer as including any person "acting as an
agent of an employer, directly or indirectly . . . ." Ergo, Respondent
AEP can remain in this case as a party Respondent along with the seven
operating companies even though it is a holding company with no
employees as such.
In late 1985 employees at Columbus Southern Power Company were
informed that the Corporate Code of Ethics applied to them. In February
1980 when the Corporate Code of Ethics was first issued Columbus
Southern Power Company was not part of the AEP System. It became part
of that system when it was purchased by AEP in May 1980. Respondent's
counsel objects to Columbus Southern Power Company being a part of this
litigation on the grounds that the charge filed by Local 1466, IBEW,
alleges that the Corporate Code of Ethics was implemented in February
1980 but it was not until May 1980 that Columbus Southern Power Company
even became part of the AEP System. The charge was filed in August
1980. However, while the testimony at the hearing establishes that
bargaining unit employees at Columbus Southern were first told the
Corporate Code of Ethics applied to them in late 1985 the first page of
the Code issued in February 1980 and the Chairman of the Board's cover
letter indicated it applied to all employees of AEP's operating
companies, of which Columbus Southern was one at the time the charge was
filed against it in August 1980.
In January 1987 a revised Corporate Code of Ethics was issued. It
differs in some respects from the one issued in February 1980. The
Corporate Code of Ethics, which issued in February 1980, provides as
follows:
1. Every effort must be made to reach all decisions solely on
the basis of merit in those matters affecting employees,
customers, investors, suppliers, government, or others doing
business with the Company.
2. Company information not generally available to the public
shall not be used by employees, directly or indirectly, for their
own personal gain, nor shall it be provided for the use of others.
3. Employees shall not seek or accept favors, gifts,
entertainment, or the equivalent. This does not apply to the
receipt of business gifts of a nominal nature; however,
acceptance of these gifts should be held to a minimum. Providing
and receiving normal business entertainment, such a lunches and
dinners, is allowed provided such activities are not frequent or
lavish.
4. Employees will report, through their immediate supervisor,
any financial interest in any business (1) which directly competes
with the Company or (2) which supplies the Company. with a
substantial amount of goods or services or (3) which sells to the
Company a substantial part of its output. This does not apply to
an interest as a security holder in companies whose securities are
listed on any national securities exchange or traded over the
counter by members of the National Association of Securities
Dealers, unless it exceeds approximately 5- of voting control.
This applies to the employee or any member of his/her immediate
family.
5. The Company shall not knowingly use any funds or other
assets, or provide any services, for any purpose which is unlawful
under the laws of the United States, any state thereof, or any
jurisdiction, foreign or domestic.
6. The Company or any subsidiary shall not establish any
undisclosed or unrecorded funds or assets for any purpose.
7. No false or artificial entries shall directly or indirectly
be made to any books or records of the Company or any subsidiary
for any reason. Employees shall not directly or indirectly engage
in any arrangements that result in such a prohibited act.
8. No payment on behalf of the Company or any subsidiary shall
directly or indirectly be approved or made with the intention or
understanding that part or all of such payment is to be used for
any purpose other than that described by the properly approved
document supporting the payment.
9. The Company has a legally organized Political Action
Committee (PAC). This Committee may receive voluntary
contributions from management personnel and contribute funds to
domestic political campaigns. No Company funds or services will
be contributed, directly or indirectly, to any political party or
to the campaign of any person seeking political office or expended
in support of or opposition to such party or person.
10. Employees should not enter into any agreement, arrangement
or device by way of fee, rebate, loan, advance, consultant
agreement, legal representation or otherwise, designed or intended
to reward or remunerate, directly or indirectly, any governmental
agency or employee, official or representative, or any officer,
director, employee, or shareholder of any private customer for
decisions or actions favorable to AEP. In short, nothing in the
nature of a bribe, payoff, or kickback should be or accepted to
secure or maintain business.
11. Employees shall not accept additional outside employment
if it is judged to interfere with the efficient performance of the
employee's duties with the Company.
12. All supervisors are responsible for enforcement of and
compliance with this policy, as well as to ensure employees'
knowledge and compliance therewith.
13. Any employee having information or knowledge of any
violation of this code of ethics must report such information or
knowledge promptly to the Controller of the AEP Service
Corporation.
14. The foregoing guidelines apply not only to each employee
as an individual but also to his/her family and to entities in
which he/she has an interest.
The revised Corporate Code of Ethics issued on l January 1987 and
differs from the Code issued in February 1980 in the following respects:
1. Paragraph 14 is deleted completely.
2. Paragraphs 3, 5, 6, 9, 10, 11, and 13 are worded
differently from the original Code. The Revised Code with respect
to those paragraphs reads as follows:
3. Employees or members of their immediate families shall not
seek or accept favors, gifts, entertainment, or the equivalent.
This does not apply to the receipt of business gifts of a nominal
nature; however, acceptance of these gifts should be held to a
minimum. Providing and receiving normal business entertainment,
such as lunches and dinners, is allowed provided such activities
are not frequent or lavish.
5. Employees shall not knowingly cause the Company to use
funds or other assets, or provide any services, for any purpose
which is unlawful under the laws of the United States, any state
thereof, or any jurisdiction, foreign or domestic.
6. Employees of the Company or any subsidiary shall not use
Company funds to create any undisclosed or unrecorded Company
assets for any purpose.
9. No Company funds or services will be contributed, directly
or indirectly, to any political campaign of any person seeking
political office or expended in support of or opposition to such
party or person except to the extent that Company resources
(including time of employees) may be utilized to maintain the
operation of legally organized political action committee as
permitted by applicable law.
10. Employees or members of their immediate families should
not enter into any agreement, arrangement or device by way of fee,
rebate, loan, advance, consultant agreement, legal representation
or otherwise, designed or intended to reward or remunerate,
directly or indirectly, any governmental agency or employee,
official or representative, or any officer, director, employee, or
shareholder of any private customer for decision or actions
favorable to AEP. In short, nothing in the nature of a bribe,
payoff, of kickback should be paid or accepted to secure or
maintain business.
11. An employee shall not accept additional outside employment
if it is judged to interfere with the efficient performance of the
employee's duties with the Company or to result in a conflict of
interest.
13. Any employee having information of any violation of this
Code of Ethics must report such information or knowledge promptly
to the appropriate level of management within that employee's
company or to the Controller of the AEP Service Corporation.
Suffice it to say Respondent is at liberty to issue a Corporate Code
of Ethics as to all its employees who are not represented by a Union.
As to those employees who are represented by a Union the issue is
whether or not the Corporate Code of Ethics contains mandatory subjects
of collective bargaining, i.e., such terms or conditions of employment,
that Respondent, before implementing such a Code, must give prior notice
and opportunity to bargain to the Union.
As noted above the key to the answer lies in the Board's decision in
Peerless Publications, Inc., 283 NLRB No. 54 (1987).
As noted from a reading of both the original Corporate Code of Ethics
and the revised Corporate Code of Ethics there is not contained therein
any penalty provisions for violation of the Code. The evidence at the
hearing reflects quite conclusively, however, that violations of the
Code could subject the violator to a penalty. According to Respondents'
own witness penalty for a violation of the Code will be decided on a
case by case basis giving due consideration to the particulars of the
violation. As the Board said in Peerless Publications, supra, it is the
attachment of express or implied penalties for breach of the Code that
will transform rules or codes of conduct from mere expressions of
opinion or aspiration into terms and conditions of employment.
However, no employee has ever been disciplined for violating the
Corporate Code of Ethics. One employee, Terry Giese, was told that his
involvement with a consumer group violated the Code but he was not
disciplined. Another employee, Al Jones, was told that his outside job
violated the Code.
Alan Goddard, then business agent for Local 1392, IBEW, who
represented employees at Indiana Michigan Power Company, made a timely
request in July 1980 to bargain over the Corporate Code of Ethics and
Respondent Indiana Michigan refused to do so. Local 981, IBEW, also
requested Respondent Michigan Power Company to bargain about the
Corporate Code of Ethics with the same result. There was obviously no
clear and unmistakable waiver by the Union of its right to bargain
concerning the Code. Metropolitan Edison Co. v. NLRB, 460 US 693, 708
(1983).
Respondents implemented the Code on the orders of W.S. White, Jr.,
Chief Executive Officer of AEP and all its subsidiaries, because of a
recommendation to do so which came from its outside auditing firm,
Deloitte, Haskins and Sells. Evidently, following passage of the
Foreign Corrupt Practices Act, the auditing firm felt that its client,
AEP, should promulgate a Corporate Code of Ethics applicable to at least
all its management officials. Respondent AEP went further and
promulgated a Code applicable to all its employees, and not just
management officials. It is clear to me that this was done not because
AEP is anti-union or wanted to undercut the Unions but because it
thought it appropriate to do so.
Respondents objected to my permitting the General Counsel to amend
the Complaint at the hearing on 28 June 1988 to allege that Respondents
violated the Act when it issued the Revised Corporate Code of Ethics in
January 1987 since the Union's charges only addressed the issuance of
the original Code in February 1980. It seems obvious to me that the
issue of the unilateral promulgation of the Code was properly in the
Complaint and changes to the Code could be alleged as violative of the
Act by the General Counsel without the filing of new charges. I told
Respondents' counsel that I would give them more time to prepare to
defend against the Complaint, as amended. They took me up on that and
the hearing was adjourned on 28 June 1988 to 26 July 1988 at
Respondents' request. I note that the General Counsel can include in a
Complaint allegations about events occurring after the charge is filed
without the necessity of new charges. National Licorice Co. v. NLRB,
309 US 350 (1940). Section 10(b) of the Act doesn't relate to conduct
subsequent to the filing of the charges. NLRB v. Fant Milling Co., 360
US 301 (1959).
As the Board stated in Peerless Publications, Inc., supra:
"The concept of 'terms and conditions of employment' is itself a
broad one--and deliberately so, for Congress intended it to be broad.
Thus, rules or ides of conduct governing employee behavior with
constituent penalty provisions for breach necessarily fall well within
the definitional boundaries of 'terms and conditions' of employment. In
determining whether an employer may nevertheless impose such a term and
condition of employment without prior bargaining, we begin with the
principle that 'labor law presumes that a matter which affects the terms
and conditions of employment will be a subject of mandatory bargaining.'
In order to overcome this presumption, therefore, it is clear initially
that the subject matter sought to be addressed by the employer must go
to the 'protection of the core purposes of the enterprise.' Where that
is the case, the rule must on its face be (1) narrowly tailored in terms
of substance, to meet with particularity only the employer's legitimate
and necessary objectives, without being overly broad, vague, or
ambiguous; and (2) appropriately limited in its applicability to
affected employees to accomplish the necessarily limited objectives."
(Footnotes omitted). (pg. 4-5 of slip opinion).
In light of the Board's decision Respondents are free to establish
and promulgate a Corporate Code of Ethics applicable to bargaining unit
employees without first giving prior notice and opportunity to bargain
to the Union if the contents of such a Code are necessary to the
credibility of the business and/or the quality of its product, the
provisions of the Code are narrowly tailored, unambiguous, and designate
the category of employees to whom applicable.
Viewing the Code and the revised Code in light of the Board's
decision it is clear to me that Respondent must rescind the Code in part
in so far as it is applicable to the bargaining unit employees. The
original Code, which was replaced by the revised Code in January 1987,
is overly broad in its entirely since it applied not only to employees
but also to the families of employees and to entities in which the
employee had an interest.
Respondents argue that many but not all of the provisions of the Code
are the same or virtually the same as rules in its employee handbooks
which everyone concedes already bind the employees, ergo, how can it
violate anyone's rights if these same provisions are recorded in another
document. This is a pretty good argument but the language in the Code
is not precisely the same as that in the handbooks and are subject
therefore to a different interpretation. From a practical point of view
Respondents' interest in making sure its bargaining unit employees do
not violate provisions of the handbook doesn't require promulgating the
Code since the "rule" is already memorialized in the handbook.
In addition, the provisions of the handbook do not apply to the
members of an employee's family in any way whereas all the provisions of
the original and Corporate Code of Ethics and many of the provisions of
the revised Corporate Code of Ethics do.
I will examine the provisions of the revised Code separately. With
respect to paragraph 1 of the Code, which is the same in both the
original and revised versions it fails to meet the Peerless Publications
test since it is clearly ambiguous. On its face it would appear to
conflict with the seniority clauses in collective bargaining agreements.
Paragraph 2 is also ambiguous, e.g., can an employee disclose his
salary to a lending institution to assist the employee in securing a
loan on a piece of investment property. Paragraph 2 is considerably
broader than the Patent and Confidential Information Statement signed by
each employee when hired. That document would appear to adequately
protect Respondents' proprietary interests.
Paragraph 3 appears to be overly broad and vague. How does it
protect the core purposes of the AEP system to prevent an employee's
wife, son, or daughter from accepting a favor or gift and it doesn't
appear that this prohibition on receiving gifts is dependent in any way
on the identity of the gift - given.
Does paragraph 4 require an employee to report what his son makes as
an employee for a company which does a lot of business with AEP or one
of its operating companies? This paragraph is also vague and doesn't
appear to protect the core purposes of the AEP system.
Paragraphs 5, 6, 7, 8, and 9 appear to be quite reasonable and
essentially say to the employees that they should obey the law. They go
to the core purposes of the enterprise. AEP and its operating companies
can unilaterally demand that their employees obey the law. Bargaining
about this would not make a lot of sense because compromise is out of
.the question. It would be contrary to public policy, e.g., for the
parties to agree that employees will obey only the law east of the
Mississippi and not the law west of the Mississippi. A heavily
regulated public utility (or for that matter any other employer) has the
right to unilaterally tell its employees to obey the law without running
afoul of the National Labor Relations Act.
Paragraph 10 is reasonable in so far as it applies to the employees
themselves. It is overly broad when it informs employees, implicitly,
that they can be disciplined for actions by members of their families in
the absence of evidence that employees directed or caused members of
their immediate family to violate this paragraph's prohibition against
bribery, kickbacks, etc.
Paragraph 11 prohibits an employee from accepting additional outside
employment if it is judged to interfere with the efficient performance
of the employee's duties with the company or to result in a conflict of
interest. This subject matter is covered in more detail and with
slightly different language in Employee Handbooks introduced into
evidence at the hearing. Having item 11 in the Corporate Code of Ethics
can only lead to confusion and ambiguity since it is not exactly like
the language in the Handbook.
Paragraph 12 is vague. Does the word "supervisor" in the paragraph
refer to that term as defined in the National Labor Relations Act? Does
it include employees presently in bargaining units represented by one of
the charging parties?
Paragraph 13 is vague and ambiguous. If prior paragraphs of the Code
are vague - which I find they are - then it is equally vague to require
employees to report violations of vague provisions of a Code by other
employees. Indeed to even require employees to report violations of
vague provisions committed by the wives, sons, and daughters of fellow
employees.
Only paragraphs 5, 6, 7, 8, and 9 or less than half the Code address
a subject matter - integrity and lawful behavior - that go to the
protection of the core purposes of the enterprise.
In light of all of the above Respondents may well be on the right
track in following the advise of their outside auditor to publish a
Corporate Code of Ethics. They can do so unilaterally as regards
management officials and employees not represented by a Union but as
regards represented bargaining unit employees Respondents should give
prior notice and opportunity to bargain to the Union involved before
issuing a Corporate Code of Ethics applicable to bargaining unit
employees that covers employees families as the original Code did or one
that contains language the same as Paragraphs 1, 2, 3, 4, 10 (only in so
far as it applies to an employee's family), 11, 12, and 13 of the
revised Corporate Code of Ethics.
Their failure to do so in this case constitutes a violation of
Section 8(a) (1) and (5) of the Act.
Conclusions of Law
1. Respondents are employers engaged in commerce and in operations
affecting commerce, within the meaning of Section 2(2), (6) and (7) of
the Act.
2. The Unions are labor organizations within the meaning of Section
2(5) of the Act
3. Respondents violated Section 8(a) (1) and (5) of the Act when it
issued its Corporate Code of Ethics, in February 1980 and December 1985
and when it issued the revised Corporate Code of Ethics in January 1987
with paragraphs 1, 2, 3, 4, 10 (insofar as it applies to families of
employees), 11, 12, and 13 without first giving prior notice and
opportunity to bargain to the Unions.
4. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, and conclusions of law, and
pursuant to Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER /3/
Respondents, American Electric Power Company and its subsidiaries
Columbus Southern Power Company, formerly known as Columbus and Southern
Ohio Electric Company, Kentucky Power Company, Appalachian Power
Company, Indiana Michigan Power Company, formerly known as Indiana and
Michigan Electric Company, Kingsport Power Company, Michigan Power
Company, and Ohio Power Company, and their officers, agents, successors,
and assigns shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union, on request,
about terms and conditions of the employment embodied in the
Respondents' Corporate Code of Ethics.
(b) Unilaterally promulgating or modifying Corporate Codes of Ethics
which affect terms and conditions of employment, or enforcing such
unilaterally promulgated or modified Corporate Codes of Ethics without
giving prior notice and opportunity to bargain to the Union.
(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 which is necessary to
effectuate the policies of the Act:
(a) Rescind in writing the original Corporate Code of Ethics issued
in February 1980 and paragraphs 1, 2, 3, 4, 10 (only in as far as it
applies to the families of bargaining unit employees), 11, 12. and 13 of
the revised Corporate Code of Ethics issued in January 1987 as to
bargaining unit employees represented by Locals 1466, 978, 1392, 934,
876, and 981, IBEW.
(b) On request, bargain with the Union concerning terms and
conditions of employment to be contained in any revised Corporate Code
of Ethics, and, if an agreement is reached, embody it in a signed
agreement.
(c) Post at its place of business /4/ copies of the appropriate
attached notice marked "Appendix." /5/ Copies of the notice, on forms
provided by the Regional director for Region 9, after being signed by
the Respondents' authorized representatives, shall be posted by the
Respondents 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 Respondents to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 9, in writing, within 20
days from the date of this Order what steps the Respondent have taken to
comply herewith.
Dated, Washington, D.C. 10 April 1989.
Martin J. Linsky
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 refuse to bargain collectively with the Union,
on request, about terms and conditions of employment embodied in the
Corporate Code of Ethics.
WE WILL NOT unilaterally promulgate Corporate Codes of Ethics
affecting terms and conditions of employment, or enforce such
unilaterally promulgated Corporate Codes of Ethics, without giving the
Union prior notice and opportunity to bargain.
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, or interfere with the Union's efforts to bargain
collectively with us.
WE WILL rescind in writing the original Corporate Code of Ethics in
its entirety and paragraphs l, 2, 3, 4, 10 (only insofar as it applies
to family members of employees), 11, 12, and 13 of the revised Corporate
Code of Ethics in so far as it is applicable to bargaining unit
employees represented by the Union.
WE WILL, on request, bargain with the Union concerning terms and
conditions of employment to be contained in any new Corporate Code of
Ethics, and, if agreement is reached, embody it in a signed agreement.
AMERICAN ELECTRIC POWER
COMPANY and its Subsidiary
COLUMBUS SOUTHERN POWER
COMPANY
(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 posted 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, 550 Main St - Room
3003, Cincinnati, OR 45202-3721, (Telephone No. (513) 684-3663).
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 refuse to bargain collectively with the Union, on
request, about terms and conditions of employment embodied in the
Corporate Code of Ethics. WE WILL NOT unilaterally promulgate Corporate
Codes of Ethics affecting terms and conditions of employment, or enforce
such unilaterally promulgated Corporate Codes of Ethics, without giving
the Union prior notice and opportunity to bargain. 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, or
interfere with the Union's efforts to bargain collectively with us. WE
WILL rescind in writing the original Corporate Code of Ethics in its
entirety and paragraphs 1, 2, 3, 4, 10 (only insofar as it applies to
family members of employees), 11, 12, and 13 of the revised Corporate
Code of Ethics insofar as it is applicable to bargaining unit employees
represented by the Union. WE WILL, on request, bargain with the Union
concerning terms and conditions of employment to be contained in any new
Corporate Code of Ethics, and, if agreement is reached, embody it in a
signed agreement.
AMERICAN ELECTRIC POWER COMPANY
and its Subsidiary
APPALACHIAN POWER COMPANY
(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 posted and must not be altered, defaced, or covered by any other
material. Any questions concerning this notice or compliance with its
provisions all directed to the Board's Office, 550 Main St. - Room 3003,
Cincinnati, OH 45202-3721, (Telephone No. (513) 684-3663).
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 refuse to bargain collectively with the Union, on
request, about terms and conditions of employment embodied in the
Corporate Code of Ethics.
WE WILL NOT unilaterally promulgate Corporate Codes of Ethics
affecting terms and conditions of employment, or enforce such
unilaterally promulgated Corporate Codes of Ethics, without giving the
Union prior notice and opportunity to bargain.
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, or interfere with the Union's efforts to bargain
collectively with us.
WE WILL rescind in writing the original Corporate Code of Ethics in
its entirety and paragraphs 1, 2, 3, 4, 10 (only insofar as it applies
to family members of employees), 11, 12, and 13 of the revised Corporate
Code of Ethics in so far as it is applicable to bargaining unit
employees represented by the Union.
WE WILL, on request, bargain with the Union concerning terms and
conditions of employment to be contained in any new Corporate Code of
Ethics, and, if agreement is reached, embody it in a signed agreement.
AMERICAN ELECTRIC POKER COMPANY
and its subsidiary
INDIANA MICHIGAN POWER COMPANY
(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 posted 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, 550 Main St - Room
3003, Cincinnati, OH 45202-3721, (Telephone No. (513) 684-3663).
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 refuse to bargain collectively with the Union, on
request, about terms and conditions of employment embodied in the
Corporate Code of Ethics.
WE WILL NOT unilaterally promulgate Corporate Codes of Ethics
affecting terms and conditions of employment, or enforce such
unilaterally promulgated Corporate Codes of Ethics, without giving the
Union prior notice and opportunity to bargain.
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, or interfere with the Union's efforts to bargain
collectively with us.
WE WILL rescind in writing the original Corporate Code of Ethics in
its entirety and paragraphs 1, 2, 3, 4, 10 (only insofar as it applies
to family members of employees), 11, 12, and 13 of the revised Corporate
Code of Ethics in so far as it is applicable to bargaining unit
employees represented by the Union.
WE WILL, on request, bargain with the Union concerning terms and
conditions of employment to be contained in any new Corporate Code of
Ethics, and, if agreement is reached, embody it in a signed agreement.
AMERICAN ELECTRIC POWER COMPANY
and its subsidiary
MICHIGAN POWER COMPANY
(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 posted 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, 550 Main St - Room
3003, Cincinnati, OH 45202-3721, (Telephone No; (513) 684-3663).
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 refuse to bargain collectively with the Union, on
request, about terms and conditions of employment embodied in the
Corporate Code of Ethics.
WE WILL NOT unilaterally promulgate Corporate Codes of Ethics
affecting terms and conditions of employment, or enforce such
unilaterally promulgated Corporate Codes of Ethics, without giving the
Union prior notice and opportunity to bargain.
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, or interfere with the Union's efforts to bargain
collectively with us.
WE WILL rescind in writing the original Corporate Code of Ethics in
its entirety and paragraphs 1, 2, 3, 4, 10 (only insofar as it applies
to family members of employees), 11, 12, and 13 of the revised Corporate
Code of Ethics in so far as it is applicable to bargaining unit
employees represented by the Union.
WE WILL, on request, bargain with the Union concerning terms and
conditions of employment to be contained in any new Corporate Code of
Ethics, and, if agreement is reached, embody it in a signed agreement.
AMERICAN ELECTRIC POWER COMPANY
and its subsidiary
KENTUCKY POWER COMPANY
(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 posted 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, 550 Main St - Room
3003, Cincinnati, OH 45202-3721, (Telephone No. (513) 684-3663).
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 refuse to bargain collectively with the Union, on
request, about terms and conditions of employment embodied in the
Corporate Code of Ethics.
WE WILL NOT unilaterally promulgate Corporate Codes of Ethics
affecting terms and conditions of employment, or enforce such
unilaterally promulgated Corporate Codes of Ethics, without giving the
Union prior notice and opportunity to bargain.
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, or interfere with the Union's efforts to bargain
collectively with us.
WE WILL rescind in writing the original Corporate Code of Ethics in
its entirety and paragraphs 1, 2, 3, 4, 10 (only insofar as it applies
to family members of employees), 11, 12, and 13 of the revised Corporate
Code of Ethics in so far as it is applicable to bargaining unit
employees represented by the Union.
WE WILL, on request, bargain with the Union concerning terms and
conditions of employment to De contained in any new Corporate Code of
Ethics, and, if agreement is reached, embody it in a signed agreement.
AMERICAN ELECTRIC POWER COMPANY
and its subsidiary
KINGSPORT POWER COMPANY
(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 posted 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, 550 Main St - Room
3003, Cincinnati, OH 45202-3721, (Telephone No. (513) 684-3663).
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 refuse to bargain collectively with the Union, on
request, about terms and conditions of employment embodied in the
Corporate Code of Ethics.
WE WILL NOT unilaterally promulgate Corporate Codes of Ethics
affecting terms and conditions of employment, or enforce such
unilaterally promulgated Corporate Codes of Ethics, without giving the
Union prior notice and opportunity to bargain.
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, or interfere with the Union's efforts to bargain
collectively with us.
WE WILL rescind in writing the original Corporate Code of Ethics in
its entirety and paragraphs 1, 2, 3, 4, 10 (only insofar as it applies
to family members of employees), 11, 12, and 13 of the revised Corporate
Code of Ethics in so far as it is applicable to bargaining unit
employees represented by the Union.
WE WILL, on request, bargain with the Union concerning terms and
conditions of employment to be contained in any new Corporate Code of
Ethics, and, if agreement is reached, embody it in a signed agreement.
AMERICAN ELECTRIC POWER COMPANY
and its subsidiary
OHIO POWER COMPANY
(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 posted 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, 550 Main St - Room
3003, Cincinnati, OH 45202-3721, (Telephone No. (513) 684-3663).
'Footnotes to the Decision'
/1/ Based on demeanor and the reasonableness of their testimony and
giving due consideration to whether the witnesses were corroborated or
not I concluded that all witnesses in this case testified truthfully.
/2/ Local 978, IBEW, represents employees at Kentucky Power Company
and Appalachian Power Company. Local 1392, IBEW, represents employees
at Indiana Michigan Power Company. Local 934, IBEW, represents
employees at Kingsport Power Company. Local 876, IBEW, represents
employees at Michigan Power Company. Local 981, IBEW, represents
employees at the Ohio Power Company.
/3/ If no exceptions are filed as provided by Section 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Section 102.48 of the Rules and
Regulations, be adopted by the Board and become its findings,
conclusions, and Order and all objections shall be deemed waived for all
purposes.
/4/ Respondent Columbus Southern should post the notice at its
facility in Columbus, Ohio, Kentucky Power in Ashland, Kentucky,
Appalachian Power in Roanoke, Virginia, Indiana Michigan in Fort Wayne,
Indiana, Kingsport Power in Kingsport, Tennessee, Michigan Power in
Three River, Michigan, and Ohio Power in Canton, Ohio.
/5/ In the event that the Board's 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 be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD."
302 NLRB No. 160
D--1992
Dixon, IL
DIXON COMMERCIAL ELECTRIC INC. and INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL--CIO, LOCAL UNION 364
Case 33--CA--8259
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER
On a charge filed on February 24, 1988, by International Brotherhood
of Electrical Workers, AFL--CIO, Local Union 364 (Union), the General
Counsel of the National Labor Relations Board by the Regional Director
for Region 33 issued a complaint on June 8, 1988, against the
Respondent, Dixon Commercial Electric Inc., alleging that it violated
Section 8(a) (5) and (1) of the National Labor Relations Act. The
Respondent filed a timely answer admitting in part and denying in part
the allegations of the complaint.
On September 20, 1989, the Respondent, the Union, and counsel for the
General Counsel filed with the Board a stipulation of facts, with
exhibits attached, and a motion to have the proceeding transferred to
the Board. The parties agreed that the stipulation of facts (with
attached exhibits), charge, complaint and notice of hearing, and answer,
would constitute the entire record in this case, and that no oral
testimony was necessary or desired by any of the parties. The parties
waived a hearing and the issuance of an administrative law judge's
decision and agreed to submit the case directly to the Board for
findings of fact, conclusions of law, and a Decision and Order. On
November 1, 1989, the Board issued an order granting the motion,
approving the stipulation and transferring the proceeding to the Board.
Thereafter, the General Counsel and the Respondent filed briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
On the entire record in this proceeding, the Board makes the
following
Findings of Fact
I. Jurisdiction
Dixon Commercial Electric Inc., an Illinois corporation with an
office and place of business at Dixon, Illinois, is an electrical
contractor and performs electrical construction work on both residential
and commercial construction projects. During the 12 months preceding the
issuance of the complaint, a representative period, the Respondent
provided services valued in excess of $50,000 to several enterprises
located within the State of Illinois, which enterprises are engaged in
interstate commerce and meet the Board's jurisdictional standards for
other than indirect inflow or outflow of goods and services.
Accordingly, in agreement with the stipulation of the parties, we find
that the Respondent is an employer engaged in commerce within the
meaning of Section 2(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.
II. The Alleged Unfair Labor Practices
A. The Facts
During relevant periods, the Respondent was a member of the Northern
Illinois Chapter of the National Electrical Contractors Association
(NECA), which in turn had negotiated a series of master
collective-bargaining agreements with the Union covering electrical work
in connection with residential construction projects (Residential
Agreement) and a series of agreements covering work on nonresidential
construction projects, including commercial electrical construction
(Inside Agreement). On June 1, 1976, the Respondent signed a Letter of
Assent---A (Inside Agreement) which bound it to the master Inside
Agreement negotiated between the Union and NECA, and on December 1,
1976, the Respondent signed a Letter of Assent---A (Residential
Agreement) which bound it to the Respondent-NECA master Residential
Agreement. The letters of assent, which were valid 8(f) prehire
agreements, by their terms bound the employers until they gave written
notice to NECA and the Union at least 150 days before the anniversary
date of the respective agreement---May 31 in the case of Inside
Agreements and November 30 in the case of Residential Agreements. /1/
On September 23, 1983, the Respondent sent a letter of withdrawal to
NECA, and its membership terminated as of October 25, 1983. Thereafter,
on December 21, 1984, the Respondent sent the Union a notice of its
intent to terminate its contract with Local 364 "on its anniversary date
of May 31, 1985." The Respondent complied with the terms and conditions
of the Inside and Residential Agreements until May 31, 1985, but ceased
to do so after that date. /2/
Thereafter, in a June 12, 1985 letter to the Respondent, the Union
protested the Respondent's failure at a commercial construction project
in Whiteside County, Illinois, to meet the prevailing wages and
conditions in that geographic area. In declaring the limited purpose of
this protest, the letter stated that the Union did not "desire
recognition."
On December 1, 1986, the Union filed a grievance under the
Residential Agreement claiming that on November 7, 1986, the Respondent
failed to pay the wages and make benefit payments as set forth in the
Residential Agreement. In correspondence between the parties in December
1986, the Respondent took the position that its withdrawal letter of
December 21, 1984, severed its relationship with the Union, including
the application of the Residential Agreement. The Union argued that the
Respondent remained bound to both the Inside and Residential Agreements.
Then, on December 30, 1986, the Respondent's attorney wrote to the Union
stating, inter alia, that "Dixon Commercial Electric will vehemently
resist any attempt by your union to claim any rights over it, nor will
(it) attend any grievance scheduled by you since it is not bound by the
terms of any agreements." /3/
Thereafter, the Respondent refused to respond to the Union's request,
in January 1987, for certain information relevant to contract compliance
(concerning the Residential Agreement). In telephone conversations
between April and June 1987 the Union's attorney spoke of possibly
taking legal action against the Respondent, and the Respondent's
attorney responded that the Respondent was in a precarious financial
position and might go out of business if the Union took such action. In
response to the Union's request for a written statement about the
Respondent's financial difficulties, the Respondent's attorney wrote on
June 15 that the Respondent "intends to liquidate . . . . " However, the
Respondent thereafter decided not to liquidate, and the Union obtained
information on or about August 18, 1987, indicating that the Respondent
was still performing electrical work. On or about September 8, 1987, the
Union was notified that the Respondent had not liquidated. In January
1988, the Union made another written demand for information regarding
the Respondent's performance of residential construction work. That
demand triggered more letters of position from both parties and resulted
in the Union's filing of the instant unfair labor practice charge on
February 24, 1988. In the complaint which issued on June 8, 1988, the
General Counsel alleges that the Respondent violated Section 8(a) (5)
and (l) by failing and refusing to furnish the Union with the
information requested in January 1988 and since on or about August 24,
1987 (6 months before the charge), refusing to abide by the relevant
Residential Agreement and withdrawing recognition from the Union during
the term of that agreement.
B. Contentions of the Parties
The Respondent contends that the complaint is barred by Section 10(b)
of the Act which provides that, "(N)o complaint shall issue based upon
any unfair labor practice occurring more than six months prior to the
filing of the charge with the Board . . . ." It argues that there can be
no dispute that the Union had clear and unequivocal notice of the
repudiation on May 31, 1985, of the Residential Agreement by its letter
of December 21, 1984, and that the Union acquiesced in this repudiation
by its statement in a June 15, 1985 letter that the Union was not
seeking recognition. The Respondent further argues that the Union
received additional notice of the repudiation on December 30, 1986, but
failed to file any charge with the Board until over 1 year later, on
February 24, 1988. /4/
The General Counsel contends that the complaint is not barred by
Section 10(b) because the Respondent's attorney did not state
categorically in December 1986 that the Respondent had repudiated the
Residential Agreement, and acted equivocally in later communications by
asking the Union's attorney to contact him before instituting legal
action, asking what the Union would do if the Respondent went out of
business, and inducing the Union not to file charges by misleading it
into believing that the Respondent was liquidating its business and
thereafter concealing the fact that it was continuing to perform
electrical contracting work.
C. Discussion
The stipulated facts show that the Respondent's December 30, 1986
letter notified the Union that the Respondent would resist the Union's
claim to "any rights over it" and denied being "bound by the terms of
any agreements." This letter amounted to a clear and unequivocal
repudiation of the bargaining relationship between the Respondent and
the Union as reflected in the expired Residential Agreement, or for that
matter, of any contractual or bargaining relationship between those
parties that may have existed as of the date of the letter. /5/ It is
further evident that there then was no pending master
collective-bargaining residential agreement, inasmuch as the successor
agreement to the one which had expired November 30, 1986, was not agreed
to or signed until February 9, 1987. The record is devoid of any
evidence that the Respondent, subsequent to its December 30, 1986
repudiation letter, reentered into a bargaining relationship of any kind
with the Union. On the basis of these facts, we find that the General
Counsel is barred by the provisions of Section 10(b) from alleging that
the Respondent violated Section 8(a) (5) and (1), as described above,
based on an unfair labor practice charge filed February 24, 1988, almost
14 months after the Respondent had clearly and unequivocally repudiated
its contractual and bargaining relationship with the Union. /6/ A & L
Underground, supra.
We reject the General Counsel's argument that the Union did not have
unequivocal notice of the Respondent's repudiation of the Residential
Agreement in December 1986, and that the statements by the Respondent's
attorney, on and after April 23, 1987 concerning the Respondent's going
out of business, caused a tolling of the 10(b) period such that the
unfair labor practice charge in this case was timely filed. The General
Counsel correctly points out that Section 10(b) is subject to equitable
principles and may be tolled where the Respondent has fraudulently
concealed its unlawful conduct. /7/ We find, however, that these
principles are inapplicable here because this record shows no attempt by
the Respondent to conceal its repudiation of its contractual and
bargaining relationship concerning residential work. /8/
The General Counsel's argument is flawed in two respects. First, it
relies on a December 11, 1986 letter that the Respondent's attorney
wrote to the Union disputing the merits of the latter's December 1
grievance. That letter, however, is not the basis for the Respondent's
assertion that the Union had sufficient notice of the Respondent's
termination of its bargaining relationship with that labor organization.
Second, and most significantly, the General Counsel has failed to note
the Respondent's December 30, 1986 letter and to take into account the
explicit message it conveyed, namely, repudiation of any contractual and
bargaining relationship that existed with the Union. Consequently,
because the 10(b) period commenced on December 30, 1986, /9/ the
Respondent's subsequent statements relating to its possible liquidation
did not serve to conceal the Respondent's repudiation or toll the
running of the 10(b) period. In the latter regard, the liquidation
statements did not have the effect of rescinding the Respondent's act of
repudiation and, hence, the Union cannot excuse its failure to file
charges on the ground that it relied on such statements to its
detriment.
Accordingly, because the instant unfair labor practice charge
alleging violations of Section 8(a) (5) and (1) was filed more than 6
months after the Union's actual notice of the Respondent's repudiation
of its contractual and bargaining relationship, the entire complaint is
barred by Section 10(b). /10/ Therefore, we shall dismiss the complaint.
/11/
ORDER
The complaint is dismissed.
Dated, Washington, D.C. May 14, 1991
James M. Stephens, Chairman
Mary Miller Cracraft, Member
Dennis M. Devaney, Member
NATIONAL LABOR RELATIONS BOARD
'Footnotes to the Decision and Order'
/1/ The master agreements, in effect at the time the Respondent
signed the above letters of assent, were for terms of 1 year.
Subsequently, the master agreements were negotiated for terms of either
1 or 2 years. Irrespective of the length of these master agreements,
their expiration dates were always May 31 for the Inside Agreement and
November 30 for the Residential Agreement.
/2/ After May 31, 1985, the Respondent neither received report forms
from nor submitted monthly fringe benefits and contribution reports to
the designated collection agency, AMCOR Bank. There is no evidence that
the Union was aware of the discontinued use of the report forms.
/3/ Negotiations for the Residential Agreement between NECA and the
Union for the term December 1, 1986, to November 31, 1988, began in
August 1986 and continued through February 9, 1987, the date an
agreement was agreed on and signed.
/4/ In light of our disposition of this case on procedural grounds,
we find it unnecessary to resolve the parties' positions on the merits.
See fn. 6, infra.
/5/ We find no merit in the Respondent's claim that it had clearly
and unequivocally given notice of its repudiation of the Residential
Agreement in its letter to the Union on December 21, 1984, and that the
Union acquiesced to this in a letter dated June 12, 1985, stating that
it did not desire recognition. The Respondent's December 21 letter
providing notice of its intent to terminate its contract with the Union
"on its anniversary date of May 31, 1985," directly referred only to the
Inside Agreement for commercial construction, which expired as of that
date. Further, the Union's June 12, 1985 disclaimer of a recognitional
objective was made in relation to a protest at a commercial construction
site. In neither of these letters was the Residential Agreement clearly
implicated.
/6/ Although the General Counsel does not claim there was any
contract in effect when the Respondent sent the December 30, 1986
letter, she argues that the Respondent was barred under the doctrine of
Retail Associates, 120 NLRB 388 (1958), from repudiating its bargaining
obligation on December 30, 1986. In particular, she argues that
multiemployer bargaining was then underway and the Respondent had not,
before this, timely revoked its grant of bargaining authority to the
multiemployer association. But all of the operative facts to prove this
contention are, as noted above, outside the 10(b) period, so that
argument is not properly before us. The General Counsel therefore
cannot logically rely on Farmingdale Iron Works, 249 NLRB 98 (1980),
enfd. mem. 661 F.2d 910 (2d Cir. 1981), for the proposition that, even
if the Union was aware of the Respondent's repudiation more than 6
months prior to the filing of its charge, the General Counsel would
still be entitled to an order, but one limited to recovery for contract
noncompliance during the 6 months preceding the filing of the charge. In
Farmingdale, the Board considered the applicability of Sec. 10(b) to
two separate kinds of contract repudiations. First, it found there had
been no unequivocal expression of an intent to repudiate the entire
collective-bargaining agreement outside the 10(b) period; second, with
respect to allegations that the employer had failed to pay contractually
required benefits, the Board held that these failures were "separate and
distinct" violations and that therefore those occurring within 6 months
of the filing of the charge were not barred by Sec. 10(b). Here, as
shown above, the Respondent clearly manifested an intent to repudiate
outside the 10(b) period, so we do not reach the question of contractual
noncompliance even for a 6-month period. A & L Underground, 302 NLRB No.
76 (Apr. 10, 1991).
/7/ Typical of situations in which such tolling occurs are cases
where employers conceal their nonunion operations from the bargaining
representative of their union employees, and the 10(b) period commences
on the union's becoming aware of the nonunion activity. See, e.g.,
Burgess Construction, 227 NLRB 765 (1977), enfd. 596 F.2d 378 (9th Cir.
1979), cert. denied 444 U.S. 940 (1979).
/8/ There should not have been any doubt in the minds of the parties
that the repudiation pertained to residential work and any related
agreement. By then, the parties' bargaining relationship concerning
commercial work and the Inside Agreement had long been terminated, as is
evident from the Respondent's December 21, 1984 letter referred to
previously, and the Union's disclaimer in June 1985 of a recognitional
object in picketing one of the Respondent's commercial sites.
/9/ See Drukker Communications, 258 NLRB 734 (1981).
/10/ Machinists Local 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411 (1960).
/11/ Member Devaney agrees with his colleagues that the complaint in
this case is barred by Sec. 10(b). The critical events which gave rise
to the instant dispute arose in December 1986, prior to the date the
multiemployer association and the Union reached an agreement on the
terms of a successor agreement to the 1984--1986 Residential Agreement.
As the General Counsel must rely on evidence of pre-10(b) events to
establish the violation, the complaint is time-barred. See Machinists
Local 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411 (1960); A & L
Underground, 302 NLRB No. 76 (Apr. 10, 1991). (Member Devaney's
dissenting opinion).
302 NLRB No. 159
D--1991
Kernersville, NC
ROADWAY PACKAGE SYSTEM, INC. and CHAUFFEURS, TEAMSTERS AND HELPERS
LOCAL 391, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL--CIO
Cases 11--CA--13077, 11--CA--13195, 11--CA--13277
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER
On August 30, 1990, Administrative Law Judge J. Pargen Robertson
issued the attached decision. The General Counsel and Respondent filed
exceptions and supporting briefs, and the Respondent 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, /1/ and conclusions /2/ as modified and to adopt the
recommended Order as modified.
1. The judge found that the Respondent's alleged surveillance of the
employees' union activities violated Section 8(a)(1). The evidence shows
that prounion employees began handbilling activities in late January.
The complaint alleged and the judge found that, on April 6, 1989, the
Respondent's sort manager Butch Riggleman stood for 30 minutes by the
guardhouse. He was visible to all employees arriving to and departing
from the plant, and he observed the handbillers' efforts to distribute
prounion literature. The judge concluded that "Riggleman's conduct had
the obvious and foreseeable result of tending to interfere with the
employees' protected activities." We disagree. By the time of the
incident, the employees had openly engaged in handbilling activity for
approximately 2-1/2 months. It is well settled that where, as here,
employees are conducting their activities openly on or near company
premises, open observation of such activities by an employer is not
unlawful. Southwire Co., 277 NLRB 377, 378 (1985); Porta Systems Co.,
238 NLRB 192 (1978). Therefore, we dismiss this allegation.
2. In adopting the judge's finding that the Respondent violated
Section 8(a) (1) through its threat to call the police in response to
protected employee handbilling activities, we rely on clear Board
precedent. All American Gourmet, 292 NLRB No. 128, slip op. at 2 fn. 2
(Feb. 14, 1989). We do not agree with our dissenting colleague that
because the Respondent did not seek to have the police actually arrest
the handbillers, its unlawful act of threatening to call the police in
the first place was rendered lawful. /3/
Amended Conclusions of Law
1. Substitute the following for paragraph 3.
"3. Respondent by threatening to close its facility if its employees
selected Chauffeurs, Teamsters and Helpers Local 391, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL--CIO, as their collective-bargaining
representative; by promulgating and attempting to enforce a
no-solicitation, no-distribution rule which prohibited employees from
soliciting or distributing union literature during nonwork times in
nonwork areas; by threatening to call the police to its employees
unless the employees stopped their handbilling activities on behalf of
the Union; and by threatening to evict its employees because of their
handbilling activities on behalf of the Union engaged in conduct
violative of Section 8(a)(1) of the Act."
ORDER
The National Labor Relations Board adopts the recommended Order of
the administrative law judge as modified below and orders that the
Respondent, Roadway Package System, Inc., Kernersville, North Carolina,
its officers, agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following as paragraph 1(a).
"(a) Engaging in conduct violative of Section 8(a)(1) of the Act by
threatening to close its facility if its employees selected Chauffeurs,
Teamsters and Helpers Local 391, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL--CIO, or any other labor organization, as their
collective-bargaining representative; by promulgating and attempting to
enforce a no-solicitation, no-distribution rule which prohibits
employees from soliciting or distributing union literature during
nonwork times in nonwork areas; by threatening to call the police to
its employees unless the employees stop their handbilling activities on
behalf of the Union; and by threatening to evict its employees because
of their handbilling activities on behalf of the Union
2. Substitute the attached notice for that of the administrative law
judge.
Dated, Washington, D.C. May 15, 1991
James M. Stephens, Chairman
Dennis M. Devaney, Member
John N. Raudabaugh, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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.
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.
WE WILL NOT threaten to close our facility if our employees select
Chauffeurs, Teamsters and Helpers Local 391, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL--CIO, or any other labor organization, as their
collective-bargaining representative.
WE WILL NOT promulgate and attempt to enforce a no-solicitation,
no-distribution rule which prohibits employees from soliciting or
distributing union literature during nonwork times in nonwork areas.
WE WILL NOT threaten to call the police to our employees unless the
employees stop their handbilling activities on behalf of the Union.
WE WILL NOT threaten to evict our employees because of their
handbilling activities on behalf of the Union.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
ROADWAY PACKAGE SYSTEM, 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, 251 North Main Street,
Room 447, Winston-Salem, North Carolina 27101-3986, Telephone
919--631--3212.
'Footnotes to the Decision and Order'