Adair Standish Corp.

National Labor Relations Board - Board Decisions

Feb 8, 1989

292 N.L.R.B. 890 (N.L.R.B. 1989)

890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Adair Standish Corporation and Flint Local 282-C,
Graphic Communications International Union,
AFL-CIO. Case 7-CA-26685
February 8, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 23, 1988, Administrative Law
Judge Irwin H. Socoloff issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed 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' 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, Adair
Standish Corporation, Standish, Michigan, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
' The Respondent argues that because of its past practice of instituting
economic layoffs due to lack of work, it had no obligation to bargain
with the Union over such layoffs . However, because of the intervention
of the bargaining representative , the Respondent could no longer contin-
ue unilaterally to exercise its discretion with respect to layoffs. See, e.g.,
Ladies Garment Workers Local 512 v. NLRB, 795 F.2d 705 (9th Cit.
1986). Instead , the Respondent was obligated to bargain with the Union
over the layoffs, which are mandatory subjects of bargaining . Lapeer
Foundry do Machine, 289 NLRB 952 (1988). Accordingly , we agree with
the judge that the Respondent violated Sec. 8(a)(5) and (1) of the Act by
failing to bargain with the Union over the layoffs.
Alternatively, the Respondent argues that even if an 8(a)(5) violation is
found , a make-whole remedy is not warranted, citing Hanes Corp., 260
NLRB 557 (1982). Under Lapeer, however, the appropriate remedy for
such a violation is reinstatement with backpay. See also Adair Standish
Corp., 290 NLRB 317 (1988). We overrule Hanes to the extent it is incon-
sistent with Lapeer, Adair Standish , and Flex Products, 278 NLRB 417
(1986), cited by the judge, and our decision today.
Ellen Rosenthal, Esq., for the General Counsel.
Francis T Coleman and Thomas Murphy, Esqs., Washing-
ton, D.C., for the Respondent.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. On a
charge filed on February 24, 1987, by Flint Local 282-C,
Graphic Communications International Union, AFL-
CIO (the Union), against Adair Standish Corporation
(Respondent), the General Counsel of the National
292 NLRB No. 101
Labor Relations Board, by the Regional Director for
Region 7, issued a complaint dated March 27, 1987, al-
leging violations by Respondent of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor Rela-
tions Act (the Act). Respondent, by its answer, denied
the commission of any unfair labor practices.
Pursuant to notice, trial was held before me in Mid-
land, Michigan, on January 14, 1988, at which the Gen-
eral Counsel and the Respondent were represented by
counsel and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce
evidence. Thereafter, the parties filed briefs which have
been duly considered.
On the entire record in this case, and from my obser-
vations of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Michigan corporation, has an office and
place of business in Standish, Michigan (the Standish
plant), where it is engaged in the manufacture, nonretail
sale, and distribution of printed products. Annually, Re-
spondent, in the course and conduct of its business oper-
ations, manufactures, sells and distributes, at its Standish,
Michigan plant, products valued in excess of $100,000, of
which products valued in excess of $50,000 are shipped
from the plant directly to points located outside the State
of Michigan. I find that Respondent is an employer en-
gaged in 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. THE UNFAIR LABOR PRACTICES
A. Background
Pursuant to a petition filed by the Union on July 15,
1985, and a stipulation for certification on consent elec-
tion approved by the Regional Director for Region 7 on
August 9, 1985, an election was held among Respond-
ent's production and maintenance employees working at
the Standish, plant, on September 11, 1985. The Union
won the election and, on May 27, 1986, the Board issued
a Decision and Certification of Representative.'
To test the certification, Respondent refused to recog-
nize and bargain with the Union and, on June 26, 1986,
the Union filed "refusal to bargain" charges with the
Board. On April 17, 1987, the Board found that Re-
spondent violated Section 8(a)(5) and (1) of the Act by
refusing, since June 6, 1986, to recognize and bargain
with the Union and to supply it with requested informa-
tion.2
On July 29, 1988, the Board issued its decision3 in an-
other postelection unfair labor practice case brought
I Case 7-RC-17730.
2 283 NLRB 668.
3 290 NLRB 317.
ADAIR STANDISH CORP
against Respondent by the Regional Director for Region
7 In that case, the Board found that Respondent en
gaged in violations of Section 8(a)(1), (3), and (5) of the
Act Among the violations of Section 8(a)(5), the Board
concluded that Respondent had unlawfully failed to bar
gain about economic layoffs and, to remedy that viola
tion, it issued a make whole order
In the instant case, the General Counsel contends, and
Respondent denies that Respondent, beginning in
August 1986 and thereafter, violated Section 8(a)(5) of
the Act when it, unilaterally, and without giving the
Charging Party notice and an opportunity to bargain, in
stituted formalized break periods, consolidated the morn
ing and afternoon shifts, changed from five 8 hour shifts
to four 10 hour shifts and back again, granted employees
a new paid holiday on Christmas Eve and laid off unit
employees for economic reasons It is undisputed that
Respondent has continuously refused to accede to the
Union s repeated requests for recognition and bargaining
B Facts4
Prior to the middle of September 1986, the employees
in Respondents bindery department generally took their
breaks, as a group, on request Thus, when one or more
employees asked for a break, the machinery would be
shut down and the employees took break periods of 5 to
7 minutes' duration Although breaks were not always
taken at the same time of day, and work requirements of
fected both the number and the timing of daily breaks,
the bindery department employees usually received one
morning and one afternoon break In addition, an em
ployee needing to use the bathroom was free to do so at
any time, after first notifying a supervisor who would
then find a person temporarily to relieve the absent em
ployee
In mid September 1986, Respondents plant manager,
Dennis Adair announced to the bindery department em
ployees that thereafter, they would receive two 10
minute breaks each day, one in the morning and one in
the afternoon Since that time the bindery department
employees have enjoyed 10 minute breaks each day, at
9 30 am and 2 p in The employees have retained the
right to visit the bathroom at other times, after informing
their supervisor
Respondents operations are normally carved on with
a single day shift However, during periods of heavy
workload, it adds a second shift or night shift and expe
nenced employees, selected by Adair are transferred
from the first shift to the second shift When necessary
temporary employees also are hired to help staff the
second shift Second shifts, generally involving the press
department only, last for periods of days or months
When such shifts are ended employees who had been
transferred are returned to the day shift
Prior to the beginning of October 1986, Respondent
had operated a night shift in the press department for
some 9 weeks At that time, it ended the night shift and
* The factfindmgs contained in this section are based on a composite of
the documentary and testimonial evidence introduced at trial The record
is generally free of significant evidentiary conflict
891
the employees who worked on that shift were returned
to the day shift
Press department employees normally have worked 8
hours per day, 5 days per week Early in October 1986,
Respondent instituted a new 10 hour day, 4 day week
schedule, for those employees That schedule remained
in effect for some 3 months, at which time Respondent
returned the press department employees to their former
schedule Plant Manager Adair testified that he instituted
the schedule change, in October 1986, after certain em
ployees requested it The new schedule was abandoned,
3 months later, when, Adair testified the employees had
tired of it
Before 1986 Respondent gave its employees a paid hol
iday on Christmas day, and it also gave each employee a
turkey Employees worked at least one half day on
Christmas Eve and then were permitted, either to attend
a party held at the plant, or to go home They were paid
for a full day In 1986, Respondent ceased giving turkeys
to employees, and it did not have a Christmas party In
stead, for the first time, Respondent gave the unit em
ployees a paid holiday for the entire day before Christ
mas
Prior to August 25, 1986 Respondent would, at times,
temporarily lay off unit employees for lack of work In
selecting employees for layoff Plant Manager Adair con
sidered, only, his judgments concerning employees abili
ties Seniority was not a factor Beginning August 25,
1986, and at various times, Respondent has temporarily
laid off unit employees for economic reasons In deciding
who to layoff, Adair has considered ability and not se
nionty
It is undisputed that Respondent took each of the ac
tions without giving prior notice to the Union The
Union learned of those actions, after the fact when ad
vised by employees
C Conclusions
Once a majority of employees in an appropriate bar
gaining unit have selected a union to represent them
their employer is obligated to bargain with the union and
the employer may not, unilaterally alter the terms and
conditions of employment of the unit employees How
ever, not every unilateral change in work rules consti
tutes a breach of the bargaining obligation The Act is
violated only if the change unilaterally imposed is 'a ma
tenal substantial and a significant one 5
With respect to the allegation that Respondent violat
ed the Act by unilaterally instituting formalized break
periods, the record evidence shows that the change was
not material, substantial or significant Under the new
formalized" break system, the bindery department em
ployees received, essentially the same number of breaks
at the same times and for similar duration as they had
and they were permitted to use the break periods for the
same purposes I find and conclude that Respondent, by
formalizing the times at which breaks were to be taken
did not violate Section 8(a)(5) of the Act 6
s Peerless Food Products 236 NLRB 161 (1978)
6 See LaMousse Inc 259 NLRB 37 (1981)
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As shown in the statement of facts beginning in
August 1986, and thereafter, Respondent, unilaterally,
and without giving the Union notice and an opportunity
to bargain, consolidated its morning and afternoon work
shifts, changed the work schedule of the press depart
ment employees from five 8 hour shifts to four 10 hour
shifts and back again, granted employees a new paid hol
iday and laid off unit employees for economic reasons In
so doing, Respondent effected unilateral changes in the
wages, hours and working conditions of the unit em
ployees which, assuredly, were material, substantial, and
significant Further, I reject Respondent's argument that
it was privileged unilaterally to lay off unit employees
for economic reasons because, prior to the certification
of the Union, it had effected, from time to time, eco
nomically motivated layoffs 7 I find and conclude that
Respondent violated Section 8(a)(5) of the Act by engag
ing in the foregoing unilateral actions I further conclude
that, as a remedy for the unlawful layoffs, a make whole
order is required 8
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de
scribed in section I, above , have a close , intimate, and
substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor dis
putes burdening and obstructing commerce and the free
flow of commerce
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practice conduct in violation of Section
8(a)(5) and (1) of the Act, I shall recommend that it be
ordered to cease and desist and to take certain affirma
tive action designed to effectuate the policies of the Act
CONCLUSIONS OF LAW
1 Adair Standish Corporation is an employer engaged
in commerce and in operations affecting commerce
within the meaning of Section 2(2), (6) and (7) of the
Act
2 Flint Local 282-C Graphic Communications Inter
national Union AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act
3 All full time and regular part time production and
maintenance employees employed by Respondent at its
Standish Michigan facility excluding office clerical em
ployees, guards and supervisors as defined in the Act
constitute a unit appropriate for the purposes of collec
tive bargaining within the meaning of Section 9(b) of the
Act
4 At all times material the Union has been and is
now, the exclusive representative of all employees in the
bargaining unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act
Gulf States Mfrs 261 NLRB 852 (1982)
8 Flex Products 278 NLRB 417 (1986)
5 By changing employee shifts and work hours insti
luting a new paid holiday and laying off employees,
without affording the Union an opportunity to negotiate
and bargain concerning those acts and the effects Re
spondent refused to bargain in good faith with the
Union, as exclusive representative of the bargaining unit
employees, concerning rates of pay wages hours and
other terms and conditions of employment, and engaged
in unfair labor practice conduct within the meaning of
Section 8(a)(5) of the Act
6 The unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed9
ORDER
Respondent, Adair Standish Corporation, Standish,
Michigan, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Refusing to bargain in good faith concerning rates
of pay, wages, hours, and other terms and conditions of
employment with the Union as the exclusive bargaining
representative of its employees in the appropriate unit
(b) Laying off bargaining unit employees, or making
changes in their rates of pay, wages, hours, and other
terms and conditions of empoyment, without first giving
adequate and timely notice to the Union and affording it
an opportunity to engage in collective bargaining regard
ing these changes
(c) In any like or related manner interfering with re
straining, 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 in good faith with the Union as
the exclusive representative of all employees in the ap
propriate unit with respect to rates of pay wages hours
and other terms and conditions of employment
(b) Offer employees immediate and full reinstatement
to their former jobs or if those jobs no longer exist to
substantially equivalent positions without prejudice to
their seniority or any other rights or privileges previous
ly enjoyed and make them whole for any loss of earn
ings and other benefits suffered as a result of the discrim
ination against them, in the manner set forth in the
remedy section of the decision
(c) Make whole the employees unilaterally laid off on
and after August 25, 1986, for any loss of earnings and
other benefits suffered as a result of the unilateral layoffs
Backpay shall be computed as prescribed in F W Wool
worth Co 90 NLRB 289 (1950), with interest as comput
8 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 pur
poses
ADAIR STANDISH CORP
ed in New Horizons for the Retarded, 283 NLRB 1173
(1987) 10
(d) Remove from its files any reference to the unlaw
ful discharges and notify the employees in writing that
this has been done and that the discharges will not be
used against them in any way
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay
roll records, social security payment records timecards,
personnel records and reports, and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(f) Post at its Standish, Michigan facility, copies of the
attached notice marked Appendix I i Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondents author
ized representative, shall be posted by the Respondent
immediately on receipt and maintained for 60 consecu
tive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable 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 Re
spondent has taken to comply
10 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 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)
11 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 Nation
al 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
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
893
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
WE WILL NOT refuse to bargain collectively concern
ing rates of pay wages, hours and other terms and con
ditions of employment with Flint Local 282 C, Graphic
Communications International Union, AFL-CIO as the
exclusive bargaining representative of our employees, in
the appropraite bargaining unit
WE WILL NOT lay off bargaining unit employees, or
make changes in their rates of pay, wages, hours, and
other terms and conditions of employment, without first
giving adequate and timely notice to the Union and of
fording it an opportunity to engage in collective bargain
ing with respect thereto
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 employees unilaterally laid off on and
after August 25, 1986 immediate and full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previous
ly enjoyed and WE WILL make them whole for any loss
of earnings and other benefits resulting from their dis
charge less any net interim earnings, plus interest
WE WILL remove from our files any reference to the
layoffs and notify the effected employees, in writing, that
this has been done
ADAIR STANDISH CORPORATION