Brimar Corp.

National Labor Relations Board - Board Decisions

Aug 10, 2001

334 N.L.R.B. 1035 (N.L.R.B. 2001)

BRIMAR CORP. 1035
Brimar Corporation and Shopmen’s Local 508, In-
ternational Association of Bridge, Structural,
Ornamental and Reinforcing Iron Workers,
AFL–CIO. Case 7–CA–39903
August 10, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On August 7, 1998, Administrative Law Judge Robert
T. Wallace issued the attached decision. The Respondent
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
only to the extent consistent with this Decision and Order
and to adopt the recommended Order, as modified.
We agree with the judge that the Respondent violated
Section 8(a)(5) of the Act by its promulgation and im-
plementation of new “workstation forms” without giving
the Union timely notice and an opportunity to bargain
concerning the forms, and by dealing directly with its
employees by requiring them to sign the new forms. As
discussed by the judge, the Respondent, in October 1996,
without notice to the Union, began to require that em-
ployees sign a “workstation form” that, among other
things, set forth certain production requirements. The
form also recited that by signing the form the employee
acknowledged that he or she understood what was ex-
pected of them regarding production.

1 We agree with the judge that Sec. 10(b) of the Act does not bar the
complaint’s allegations. We adopt the judge’s finding that Union Stew-
ard Robbie McCaskill’s November 1996 knowledge of the Respon-
dent’s newly implemented “Workstation Form” is not imputed to the
Union for the purpose of triggering the 6-month period prescribed in
Sec. 10(b) of the Act for the timely filing of unfair labor practice
charges. In doing so, we agree with the judge’s finding that McCaskill,
although a steward, had no role in matters relating to bargaining, and
the Respondent had no reason to believe otherwise. See Catalina Pa-
cific Concrete Co., 330 NLRB 144 (1999); cf. Baytown Sun, 255
NLRB 154, 160 (1981) (union steward’s knowledge imputed to union
for purposes of determining the charge was not timely filed under Sec.
10(b) where the steward in question was found to be more than a stew-
ard in that she was closely tied to the union, she was a member of the
union’s negotiating committee, and had attended all of the 25 or 30
negotiating sessions between the respondent and the union.)
Chairman Hurtgen assumes arguendo that the charge was timely
filed. He finds it unnecessary to pass on the 10(b) issue in this case
because he would not find the violations alleged, as discussed in his
dissent. He notes, however, that in Catalina, supra, the steward in ques-
tion was considered by the respondent there to be one of its supervisors,
and it could not be reasonably believed that notice to that person of
unilateral changes was an acceptable method of communicating with
the union concerning those changes.
Contrary to our dissenting colleague, we find that the
unilateral introduction of the forms was a material, sub-
stantial, and significant change in terms and conditions
of employment. See generally Civil Service Employees
Assn., 311 NLRB 6 (1993) (applying test). Requiring a
represented employee individually to acknowledge, in
writing, the standards that apply to him is different than
simply setting those standards and communicating them.
It holds employees accountable. Surely this is why the
forms were introduced in the first place, as a means of
establishing an employee’s knowledge and assent. Either
element could pose an issue for employees who were
unaware of the standards or unwilling to assent to them,
especially without some indication that their union had
endorsed the initiative. The Respondent may well have
wanted the proof represented by the form in connection
with the ISO 9001 certification the Respondent sought.
But once proof was obtained, it would certainly be avail-
able in other contexts: for example, to support the impo-
sition of individual discipline or to show the union’s
agreement to the standards, should some dispute arise.
Under the circumstances, it is not surprising that two
employees here refused to sign the form. Their refusal, in
turn, confirms the significance of the Respondent’s uni-
lateral action.
Goren Printing, 280 NLRB 1120 (1986), relied on by
our dissenting colleague, is distinguishable. There, the
employer merely changed the method by which employ-
ees were required to inform management that they were
leaving work early (from an oral communication to a
written note). There was no change in the underlying
existing condition of employment requiring employees to
notify management of their early departure. As a result,
in finding no violation, the Board said:

[T]he note requirement is merely a more dependable
method of enforcing [the] Respondent’s rule that its
employees must give notice if they leave work early.
The rule itself remains intact and the procedural change
has an inconsequential impact on those employees who
complied with the earlier notice requirement.

280 NLRB at 1120 (footnote omitted). Here, on the other
hand, the change is not simply procedural. While produc-
tion quotas existed, the written-acknowledgement require-
ment was brand new. Thus, before there was no condition
of employment requiring employees affirmatively to ac-
knowledge (either orally or in writing) that they: were aware
of the expected number of units to be produced per hour on
a particular workstation, had been trained for that specific
workstation, fully understood their workstation assignment,
334 NLRB No. 127
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1036
and fully understood what was “expected” of them. Thus,
the Respondent unilaterally imposed a new substantive con-
dition of employment on the employees, and it did so by
dealing directly with the employees themselves. Both ac-
tions were in derogation of the obligation to deal with the
Union about terms and conditions of employment.2
We do not agree, however, with the judge that the Re-
spondent’s 5-day suspension and subsequent discharge of
employee Anthony Bolden violated Section 8(a)(5) of
the Act.3 As set forth by the judge, the Respondent,
some months after its implementation of its requirement
of workstation forms, suspended and later discharged
Bolden. The judge concluded that the Respondent’s
unlawful actions regarding its workstation forms were a
factor in Bolden’s suspension and discharge. The judge
noted that Plant Manager Edward Drabek, prior to sus-
pending and later discharging Bolden, reviewed Bolden’s
production figures. Thus, in the judge’s view, Drabek’s
decisions on discipline were, in part, based on Bolden’s
failure to make his production quota. We disagree with
the judge’s reasoning.
In Great Western Produce Inc., 299 NLRB 1004
(1990), the Board held that if an employer’s unlawfully
imposed rules were a factor in the discharge of an em-
ployee, then the discharge violates Section 8(a)(5) of the
Act. The Board also noted that an employer could raise
at the compliance stage defenses to the reinstatement and
backpay remedy for employees discharged in violation of
Section 8(a)(5).4
Here, although we have found that the Respondent’s
promulgation and implementation of the new workstation
forms was a violation of the Act, the General Counsel
has not established that the unlawfully imposed changes
were a factor in the decision to suspend and later dis-
charge Bolden. Rather, it is clear that discipline was not

2 See Garney Morris, Inc., 313 NLRB 101, 112–113, 119–120
(1993), enfd. mem. 47 F.3d 1161 (3d Cir. 1995) (unilateral implement-
tation of new, more detailed disciplinary warning form and new re-
quirement that employees sign it); Central Cartage, Inc., 236 NLRB
1232, 1237–1239, 1258 (1978), enfd. mem. 607 F.2d 1007 (7th Cir.
1979) (unilateral implementation of requirement that employees sign
revised job descriptions and affirmatively acknowledge that they under-
stand their duties and responsibilities); and Nathan Littauer Hospital
Assn., 229 NLRB 1122, 1124–1125 (1977) (unilateral implementation
of new requirement that full-time registered nurses record their regular
time, using timeclock, in addition to existing requirement of manually
signing out for overtime credit).
3 The judge recommended dismissal of the complaint’s allegations
that the Respondent’s 5-day suspension and discharge of Bolden vio-
lated Sec. 8(a)(3) of the Act. No party excepted to the judge’s findings
regarding the 8(a)(3) allegations.
4 See also Consec Security, 328 NLRB 1201 (1999) (employer’s dis-
charge of employee violated Sec. 8(a)(5) where the employee’s breach
of an unlawfully imposed rule was most significant factor in decision to
discharge).
imposed for Bolden’s failure to sign the forms or to ac-
knowledge that work quotas existed on the work being
done. Rather, the Respondent suspended and discharged
Bolden because he wasted time on the job and therefore
fell far short of expected production.
A Great Western analysis of an alleged 8(a)(5) dis-
charge differs from a Wright Line analysis of an alleged
8(a)(3) discharge. Nonetheless, the judge’s factual find-
ings in his 8(a)(3) analysis regarding Bolden’s discipline
cannot be ignored in our 8(a)(5) analysis. Thus, the
judge found, in regard to Bolden’s 5-day suspension and
subsequent discharge, that Bolden had in fact been idle
and wasted time. The judge found, as a fact, that Bolden
ignored verbal warnings and continued to waste time. In
light of these factual findings, we cannot conclude that
the Respondent’s promulgation and implementation of its
workstation forms was a factor in the Respondent’s deci-
sion to suspend and discharge Bolden.
The fact that Plant Manager Drabek may have re-
viewed Bolden’s production figures does not change our
conclusion. In our view, Drabek merely confirmed his
foreman’s reports that Bolden had wasted time. The new
workstation forms did not alter the Respondent’s long-
standing prohibitions against wasting time. The Respon-
dent’s disciplinary actions were not based on any failure
by Bolden to recognize and acknowledge the production
quotas set forth in the workstation form. Rather, the Re-
spondent suspended and discharged Bolden because of
his deliberate acts of ignoring verbal warnings and re-
peatedly wasting time. The discipline thus had no direct
link to the workstation form. Because the General Coun-
sel failed to establish the requisite nexus between the
Respondent’s unilateral promulgation and implementa-
tion of the workstation forms and the subsequent suspen-
sion and discharge of Bolden, we will dismiss the com-
plaint in this regard.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, Brimar Corpo-
ration, Detroit, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the Order, as
modified.
5 Chairman Hurtgen concludes in his dissent that the promulgation
and implementation of the workstation forms were not violative of Sec.
8(a)(5). However, Chairman Hurtgen agrees that even if this conduct
were unlawful under Sec. 8(a)(5), the discipline of Bolden was not
because of the forms.
Chairman Hurtgen does not pass on whether discipline is unlawful if
it is based in part on an unlawful requirement but Respondent can show
that the discipline would have been imposed in any event because of
another (lawful) requirement.
BRIMAR CORP. 1037
1. Delete paragraphs 1(c) and 2(b), (c), and (d).
2. Substitute the attached notice for that of the admin-
istrative law judge.

CHAIRMAN HURTGEN, concurring in part and dissent-
ing in part.
I agree with the majority in all respects except as fol-
lows. I do not agree that the Respondent violated the Act
by its 1996 promulgation and implementation of its
workstation forms or by requiring its employees to sign
the forms to acknowledge that they were aware of the
production quotas.
It is clear that an employer violates Section 8(a)(5) and
(1) of the Act by unilaterally implementing, without no-
tice to the union, changes in terms and conditions of its
employees. NLRB v. Katz, 369 U.S. 736 (1962). How-
ever, in order for such a modification to violate the Act,
it must involve a change that is material, substantial, and
significant, affecting the terms and conditions of em-
ployment of bargaining unit employees. Carrier Corp.,
319 NLRB 184, 193 (1995), and cases cited therein. I
would not find that the promulgation and implementation
of the workstation forms constituted a material, substan-
tial, or significant change in the employees’ terms and
condition of employment necessitating bargaining. As
found by the judge, the Respondent, since 1985, has in-
formed its employees of the expected hourly production
quota. In addition, this quota was prominently stamped
on parts used in production. In October 1996, the Re-
spondent simply put these preexisting quotas in writing,
and required the employees to sign the forms to show
that they had been apprised of the expected hourly quota.
This was done in order to conform to internationally ac-
cepted standards (the “ISO 9001” standard), and to
thereby qualify for a “certification” from Ford Motor
Company. The use of the forms only memorialized in
print what had been a standard practice for at least 11
years. It did not increase or decrease the quotas, or im-
pose any new or increased production requirements on
the employees. The quotas, and the employees’ knowl-
edge thereof, remained the same. See Goren Printing
Co., 280 NLRB 1120 (1986).1
My colleagues say that the form establishes employee
knowledge and consent. However, the quota has been in

1 In Goren, the Board found no 8(a)(5) violation in regard to an em-
ployer’s unilaterally imposed requirement that employees provide a
note, rather than an oral report, if the employee needed to leave work
early. The Board found that the written requirement would be a more
“dependable” method of insuring that an employee would meet the
existing requirement of reporting an early departure. Similarly, here,
the Respondent’s workstation form would be a more dependable way to
insure compliance with the “ISO 9001” standard needed for a “certifi-
cation’ from Ford Motor Company.
existence for a long period, and Respondent has told em-
ployees of it. By continuing to work, employees impli-
edly consented to the quota. The written form of
“knowledge and consent” was simply a means of elimi-
nating any possible doubt as to existence of these two
factors. As in Goren, it was “a more dependable method
of enforcing the Respondent’s rule.”
The judge and my colleagues note that the workstation
forms could be used in a disciplinary proceeding. How-
ever, this represents no real change. Any discipline for an
employee’s failure to meet production quotas would have
to be established in one way or another—i.e., by work-
station forms, by supervisor-generated documents, or by
statements. Prior to and after the “change” involved
here, an employee could be disciplined for the same fail-
ure to meet a quota. The proof of the failure may now
differ, but the quota and the discipline remain the same.2
I would therefore find no change as to which the Re-
spondent was required to bargain.

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 or-
dered us to post and abide by this notice.

WE WILL NOT promulgate workstation forms con-
taining production “expectations” without giving Shop-
men’s Local 508, International Association of Bridge,
Structural, Ornamental and Reinforcing Iron Workers,
AFL–CIO timely notice and opportunity to bargain.
WE WILL NOT require you to sign the workstation
forms without first giving the union timely notice and
opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain in good faith with
Shopmen’s Local 508, International Association of
Bridge, Structural, Ornamental and Reinforcing Iron
Workers, AFL–CIO as the exclusive representative of the
employees in the unit specified in the applicable collec-
tive-- bargaining agreement.

BRIMAR CORPORATION
2 My colleagues suggest that Respondent placed “new emphasis” on
achieving the quotas. There is insufficient evidence that Respondent
enforced the quota more strictly.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1038
Richard F. Chubaj, Esq., for the General Counsel.
Lawrence J. BeBrincat, Esq. (Brian M. Smith & Associates), of
Troy, Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. This
case was tried in Detroit, Michigan, on March 12, 1998. The
charge was filed by the above-named Union on June 6, 1997,1
and the complaint was issued on September 30.
The complaint alleges that Respondent (a) unilaterally im-
plemented production standards, (b) dealt directly with unit
members, (c) threatened them with discipline if they did not
acknowledge the standards, and (d) suspended and later dis-
charged employee Anthony Bolden for failure to meet them—
all in violation of Section 8(a)(5) and (1) of the National Labor
Relations Act. Also, the actions in (d) are alleged to be dis-
criminatory in violation of Section 8(a)(5), (3), and (1) of the
Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with approximately 56 production
workers, fabricates materials handling racks for the automotive
industry at a facility in Detroit where it annually receives in
excess of $50,000 in revenues and from which it sells and ships
goods valued in excess of $50,000 to major automobile manu-
facturers directly engaged in interstate commerce. It admits and
I find that it 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. ALLEGED BARGAINING FAILURE
Since its inception in 1985 Respondent has trained employ-
ees in proper techniques for making different kinds of automo-
tive racks, and in connection with that training employees are
routinely given an “expected” hourly production rate for each
type of rack. In addition, the rate is prominently stamped on
parts used in making the different racks.
The current collective-bargaining agreement between Re-
spondent and the Union extends from June 17, 1996, to June
16, 1999. During the spring of 1996, while negotiations for that
agreement were in progress, Respondent’s president, Brian
Sullivan, mentioned to Union Business Agent (and negotiator)
Joseph Lyscas that the Company was attempting to conform its
processes and procedures to internationally accepted (“ISO
9001”) standards, thereby to obtain a “certification” from Ford
Motor Company. He also told Lyscas that the effort would
entail documenting some policies and practices.
In October 1996 and without advising any union bargaining
representative, Respondent began to require employees to sign
a new “Workstation Form” that, among other things, contained

1 All dates are 1997 unless otherwise indicated.
an expected number of units to be produced per hour. The form
also recited:

By signing the form, you are stating that you were trained for
a specific workstation assignment. You are also stating that
you fully under this workstation/assignment and what is ex-
pected on you.2

On the morning of May 7, a newly designated chief union
steward and an assistant steward (Bolden and Ron Gardner,
respectively) refused to sign forms containing an expected
hourly rate.3 Shortly thereafter Company President Sullivan
complained to Union Representative Lyscas about the refusal.
Lyscas supported the stewards.
I find a violation of Respondent’s obligation to bargain.
Introducing the form was more than a simple memorializa-
tion of a past practice The expressed purpose of the form was to
place new emphasis on achieving production quotas; and by
signing, employees admitted awareness of management’s “ex-
pectations” for specific items. In addition, the document would
be readily available for use in disciplinary proceedings. This
clearly impacts on “terms and conditions of employment” with
sufficient significance as to constitute a matter that should have
been brought to the attention of the bargaining representative
prior to implementation,4 i.e., it entails a mandatory subject of
bargaining.5
Respondent does not claim otherwise in its brief. Instead, it
argues that the charged bargaining violation is time barred by
Section 10(b) of the Act. In this regard, it argues that the Union
had knowledge of the new form prior to the 6-month period
immediately preceding filing of the charge on June 6 and par-
ticularly on November 14, 1996, when then Chief Shop Stew-
ard McCaskill signed a form containing an expected production
rate.
The statement of Respondent’s president, Brian Sullivan, to
Union Negotiator Joseph Lyscas in the spring of 1996 while
negotiations for a new contract were in progress (i.e., that in
efforts to obtain “ISO 9001” certification the Company would
begin to document some of its current policies and practices) is
far too vague to constitute proper notice. Further, there is no
evidence that employees (including Chief Steward McCaskill)
understood prior to May 7 the import of the new workstation
form or brought it to the attention of union officials.
There remains to be considered Respondent’s argument that
since a chief steward knew of the new form on November 14,
his knowledge should be attributed to the Union. The three
cases cited in support of that contention are inapposite.6 All
2 The Workstation Form was revised in minor respects from time to
time. On at least two occasions (on November 14 and 18, 1996) the
form with an “expected rate per hour” was signed by then Chief Union
Steward Robbie McCaskill.
3 There is no credible evidence that the forms ever reflected an in-
crease in the prior expected production rate for particular items.
4 New York Telephone Co., 304 NLRB 183 (1991); Venture Packag-
ing, 294 NLRB 544 (1989).
5 NLRB v. Katz, 369 U.S. 736 (1962).
6 Iron Workers Local 433 (United Steel), 280 NLRB 1325 (1986);
Carpenters Local 296 (Acrom Construction), 305 NLRB 822 (1991);
and Plumbers Local 250 (Murphy Bros.), 311 NLRB 491 (1993).
BRIMAR CORP. 1039
involve situations where unions were found responsible for
misconduct by shop stewards. It is axiomatic, however, that a
person may be an agent for one purpose but not for another.
Here, Steward McCaskill was an ordinary production worker
with no role in matters relating to bargaining subjects, and Re-
spondent had no reason to believe otherwise.7
I find the charge is not barred by Section 10(b). Also, I find a
failure to bargain as well as direct dealing with employees by
asking them to sign forms bearing the unilaterally imposed
production norms, both in violation of Section 8(a) (5) and (1),
as alleged in the complaint. However, there is no evidence of
any threat to punish employees for not signing and that allega-
tion will be dismissed.
III. DISCIPLINE AND DISCHARGE OF BOLDEN
On May 7, Welding Shop Foreman Bobbie Perkins un-
sucessfully urged Stewards Bolden and Gardner to sign the
forms, pointing out that the “expectation” listed on the form for
the item (# 4048) they were working on that day (25 per hour or
200 per 8-hour day) was realistic and had been achieved by
other employees.8 Later that day he observed them “goofing
around . . . taking their time . . . talking to each other . . . not
trying” and he told them they needed to pick up the pace “to
make their counts.” He reported the situation to Plant Manager
Edward Drabek who, after reviewing their production data for the
day,9 decided to and did issue them written warnings at the be-
ginning of the morning shift on the next day.
Both warnings were for “wasting time.”10 Bolden received a
5-day suspension without pay, the warning indicating that his
was a second offense under the Company’s progressive disci-
plinary rules.”11 His prior written warning, also for wasting
time, was issued by Perkins for conduct occurring on April
18.12 Shortly thereafter, on Friday, April 25, Bolden almost
received another written warning. On that day he and Gardner
had spent 3-1/2 hours working together and had produced only
3 units of an item with a two-man expectation of 14 over an 8-
hour period. Perkins called them into the office, showed them a
write up for wasting time he had prepared for each and offered

7 See dicta in Wagner Distribution Services, 262 NLRB 764, 774
and fn. 2 (1982).
8 Perkins cites, for example, the work of a new employee (Sinceria
Loving) who produced 224 units of the item over an 8-hour period on
May 8.
9 Drabek noted from the data that over the 8-hour workday, Bolden
produced 145 items and Gardner’s total was 105. In his testimony
Drabek states that on “going over those [the data . . . I also found that
during his wasting time . . . [Bolden] wasn't getting production out
either.” For his part, Bolden testified that he could not recall how many
items he had produced that day; and he claims that any idleness on his
part was due to a foreman’s 20-minute delay in responding to his com-
plaint that “the parts did not fit” and that he so advised Perkins at the
time.
10 Gardner’s warning is not alleged to have been discriminatorially
issued. Perkins states that after May 7 Gardner consistently met and
often exceeded production quotas.
11 The rules call for a 1-day suspension for a first offense, 5 days for
the second, and discharge for the third.
12 This warning contains a notation that Bolden had received an ear-
lier verbal warning for the same offense.
an alternative: Go back and work hard, in which case no warn-
ing would issue. Gardner opted to accept the warning and went
home for the day. Bolden returned to the job and before the
shift was over produced an additional five units working alone.
On June 18 and after checking production data, Drabek gave
Bolden a third written warning and termination notice for wast-
ing time on June 17. The item he had been working on for sev-
eral weeks had an expected production rate of 32 per hour. He
had achieved a high of 28 per hour on June 3 but his output
steadily declined from day to day. On June 17 Perkins warned
him several times to stop talking with other employees and pay
attention to production. Notwithstanding, he averaged only 23
items per hour over a 5-hour period on that day. At trial,
Bolden asserted that the warning was unfair because he did not
work a full day on June 17, having received permission to leave
for the day at noon “to go to the clinic.” He did not explain
how that circumstance had any effect on his hourly production
rate however.13
Other than Bolden and Gardner, no other employees were
were disciplined for “wasting time” during the first 6 months of
1997. One employee (D. Bush) was terminated for a third of-
fense on October 17, 1996, and another (C. Frazier) received a
firstt warning and 1-day suspension on January 23, 1996.
Two issues are presented: The first is whether the previously
found unilaterally and unlawfully imposed production stan-
dards played a significant part in Bolden’s suspension and dis-
charge. If so, each of those disciplines constitute additional
violations of Section 8(a)(5) and (1) in derogation of the Un-
ion’s status as bargaining representative of unit employees.14
I find violations.
In connection with the warning and 5-day suspension issued
on May 8, it is clear from Plant Manager Drabek’s testimony
that his decision to issue a warning and suspension was based
in part on his review of data leading him to conclude that in
addition to wasting time Bolden “wasn't getting production out
either.” The same is true with regard to his decision to issue
the third warning and termination notice to Bolden on June 18.
He testified that before deciding to issue it he verified Foreman
Perkins’ claim that Bolden was “not doing his production.”
Accordingly, and as an appropriate and approved15 remedy
for these 8(a) (5) violations, I will order Bolden reinstated with
backpay.
The remaining issue is whether the disciplinary actions were
also discriminatory in violation of Section 8(a)(3) and (1).
I find this not to be the case.
While there is a likelihood that Bolden’s refusal on May 7 to
sign a form bearing an expected hourly production rate was a
factor in the decision to give him a written warning and suspen-
sion for “wasting time” on that date, I am persuaded that Re-
13 Although Bolden testified that his clinic appointment was for re-
moval of a piece of steel in his eye, there is no indication he made that
fact known to Perkins or any other supervisor in requesting leave or in
explanation for his low hourly production rate when he received verbal
warnings on June 17 and the written warning on June 18.
14 Great Western Produce, 299 NLRB 1004, 1005 (1990), and cases
cited in fn. 11.
15 Sygma Network Corp., 317 NLRB 411 (1995); Kysor Industrial
Corp., 307 NLRB 598, 603 (1992).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1040
spondent has met its Wright Line16 burden by showing that he
would have received that discipline (as well as the warning and
termination notice issued on June 18) in any event.
First, the weight of evidence shows that on May 7 Bolden
was idling and otherwise wasting time, that he had been ver-
bally cautioned earlier during the day, and that he had received
numerous warnings about the matter well prior to any protected
act on his part. Yet. despite the “2nd written warning” on May 7
and his awareness that a third could result in termination under
company rules, on June 17 he again ignored verbal warnings to
stop wasting time and was terminated. His discharge—a culmi-
nation of the numerous prior warnings for the same offense—
was not unprecedented. Another employee had been terminated
for the same pattern of conduct 8 months earlier and others
have been given written and verbal warnings.
Second, there is no showing of antiunion animus on the part
of Respondent. Indeed, another union steward (Gardner) suc-
ceeded in averting a third warning by conscientiously avoiding
idleness after May 7.
The 8(a)(3) allegation will be dismissed.
CONCLUSION OF LAW
Respondent violated the Act in the particulars and for the
reasons stated above; and its violations have affected, and
unless permanently enjoined will continue to affect, commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Among other things, Respondent will be ordered to compen-
sate Anthony Bolden in full for loss of pay and benefits during
his unlawful 5-day suspension in May 1997 and to offer him
reinstatement and make him whole for any loss of earnings and
other benefits resulting from his unlawful termination on June
18, with losses to be computed on a quarterly basis from date of
discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17

ORDER
The Respondent, Brimar Corporation, Detroit, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
16 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
(a) Promulgating workstation forms containing production
“expectations” without giving Shopmen’s Local 508, Interna-
tional Association of Bridge, Structural, Ornamental and Rein-
forcing Iron Workers, AFL–CIO timely notice and opportunity
to bargain.
(b) Dealing directly with employees by requiring them to
sign the workstation forms.
(c) Warning, suspending, or otherwise disciplining employ-
ees for not signing the forms.
(d) 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 effec-
tuate the policies of the Act.
(a) On request, bargain in good faith with Shopmen’s Local
508, International Association of Bridge, Structural, Ornamen-
tal and Reinforcing Iron Workers, AFL–CIO as the exclusive
representative of the employees in the unit specified in the ap-
plicable collective bargaining agreement.
(b) Compensate Anthony Bolden in full for loss of pay and
benefits during his unlawful 5-day suspension in May 1997
and, within 14 days from the date of this Order, offer him rein-
statement and make him whole for any loss of earnings and
other benefits resulting from his unlawful termination on June
18, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspension and discharge
and within 3 days thereafter notify Anthony Bolden in writing
that this has been done and that the suspension and discharge
will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Detroit, Michigan, copies of the attached notice
marked “Appendix.”18 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. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
18 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
BRIMAR CORP. 1041
ployees and former employees employed by the Respondent at
any time since May 7, 1997.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.