Coal Age Service Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 572 (N.L.R.B. 1993)

572
312 NLRB No. 96
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Cases 14–CA–20381, 14–CA–20535, and 14–CA–20621, JD–53–
91 (March 1, 1991); adopted, absent exceptions, by the Board on
April 11, 1991.
2 Willis testified that he does not know whether he bids against the
companies on the list. His only information on the point was that
some of the companies have received contracts for jobs on which
he has bid.
3 The Respondent has not excepted to the judge’s findings that: (1)
it violated Sec. 8(a)(1), (3), and (4) of the Act by laying off em-
ployee Neal Heflin, a discriminatee in the prior case, because he
supported the Union and testified at the prior Board proceeding; (2)
it violated Sec. 8(a)(1), (3), and (4) by issuing warning letters to em-
ployee Murray Buckingham and placing him on probation, because
he supported the Union and testified at the prior Board proceeding;
(3) it violated Sec. 8(a)(5) by unilaterally creating a new bargaining
unit position without affording the Union notice or an opportunity
to bargain; and (4) it violated Sec. 8(a)(5) by refusing to bargain
over the terms and conditions of employment for the newly created
bargaining unit position.
Coal Age Service Corporation and International
Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers and Helpers, Local
483, AFL–CIO. Cases 14–CA–21090, 14–CA–
21347, 14–CA–21461, and 14–CA–21612
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 19, 1992, Administrative Law Judge
Harold Bernard Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed limited exceptions and
an answering brief.
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 rul-
ings, findings, and conclusions to the extent consistent
with this decision, and to adopt the recommended
Order as modified.
1. The judge found, inter alia, that the Respondent
violated Section 8(a)(5) of the Act by failing to bar-
gain in good faith with the Union during the course of
the parties’ negotiations between May 16, 1991, and
February 17, 1992. The Respondent has excepted. For
the reasons that follow, we agree with the judge that
the Respondent engaged in bad-faith bargaining in vio-
lation of Section 8(a)(5) of the Act.
The parties had engaged in extensive bargaining
from May 1988 through April 1990. The Respondent
sought concessions from the Union. The Board found
that the Respondent bargained in bad faith and com-
mitted a variety of other unfair labor practices during
that time period. Coal Age Service Corp.1 The finding
of bad-faith bargaining was based, in part, on the Re-
spondent’s failure to document its claim that its com-
petitors’ labor costs were lower than those of the Re-
spondent.
Subsequent to the the Board’s Order, the parties re-
sumed bargaining. The Respondent continued to insist
that it needed wage-and-benefit concessions from the
Union in order to remain competitive with companies
in the area. Prompted by what the Respondent’s presi-
dent, Earl Willis, conceded was the need ‘‘to justify
the concessions [we] were asking for at the bargaining
table,’’ in this round of negotiations the Respondent
provided the Union with a so-called wage-and-benefit
‘‘survey’’ listing the names of 10 companies on one
side of the paper, and wage-and-benefit data on the
other side. According to this ‘‘survey,’’ the Respond-
ent appeared to have the highest wage-and-benefit
costs.
Willis testified, however, that he was not fully fa-
miliar with the work these companies did nor was he
sure that he regularly bids against them.2 Willis also
admitted that he made no attempt to determine the ex-
tent to which the companies surveyed were true com-
petitors or whether the Respondent was actually losing
work to them. Furthermore, Willis testified that, in
compiling the survey, he inquired only about the com-
panies’ lowest and highest wage rates. Willis had no
information on how many employees were at any
given company, what classifications of employees ex-
isted, or how many employees were paid at the vary-
ing wage rates within a company.
Based on Willis’ own testimony, the conclusion is
inescapable that the Respondent did not make a good-
faith effort to investigate the wages and benefits re-
ceived by employees in comparable classifications em-
ployed by companies that could fairly be characterized
as the Respondent’s competitors. What the Respondent
termed a ‘‘survey’’ was actually a sham manufactured
to make it appear that the Respondent’s uncom-
petitiveness claim had some basis in reality.
The Respondent’s deceptive conduct did not concern
some peripheral topic. Rather, as the judge found, the
Respondent’s ‘‘list was the very core of the Respond-
ent’s position’’ that it needed wage-and-benefit reduc-
tions in any contract with the Union in order to stay
competitive. Introducing into the negotiations a sham
survey on a crucial bargaining issue is simply not the
conduct of an employer negotiating in good faith with
a sincere intent to reach agreement.
It is well established that in determining whether a
party is bargaining in bad faith, the Board looks to the
totality of the circumstances in which the bargaining
took place. E.g., Hedaya Bros., 277 NLRB 942, 944
(1985). Therefore, in considering its actions in this
case, we also take into account the Respondent’s ac-
knowledged, contemporaneous unfair labor practices.3
These ongoing unfair labor practices demonstrate the
Respondent’s desire to undermine the Union’s support
573COAL AGE SERVICE CORP.
4 We shall revise par. 1(b) of the judge’s recommended Order to
reflect the bad-faith bargaining violation we find and the 8(a)(5) vio-
lations to which there are no exceptions.
5 The Respondent’s creation and use of the sham ‘‘survey’’ to de-
ceive the Union are the basis of the general failure to bargain in
good faith found above.
among unit members and to unilaterally determine em-
ployee terms and conditions of employment. We be-
lieve this conduct bolsters our finding that the Re-
spondent was not negotiating in good faith.
In sum, after reviewing the Respondent’s behavior at
the bargaining table and away from the table, it is
clear to us that the Respondent was merely continuing
the same course of bad-faith bargaining it had been
found guilty of in the prior Board proceeding. We rec-
ognize that the negotiations resulted in movement and
agreement on some subjects, but the totality of cir-
cumstances convinces us that the Respondent was not
negotiating in good faith with a view toward reaching
complete agreement with the Union.4
2. The judge also found that the Respondent violated
Section 8(a)(5) of the Act by refusing to furnish the
Union with information necessary to perform its col-
lective-bargaining duties. In presenting its ‘‘survey’’ to
the Union, the Respondent provided only an
uncorrelated version of the data it gathered. The Re-
spondent gave the Union the names of the ‘‘competi-
tors’’ and the wage-and-benefit information gathered,
but refused the Union’s requests to advise it which
‘‘competitor’’ paid which level of wages and benefits.
The judge concluded that the Respondent violated the
Act by providing the Union with only a ‘‘scrambled’’
copy of the ‘‘survey,’’ i.e., by failing to correlate the
name of each company with the data alleged to have
been secured from it. We disagree for the reasons that
follow.
An employer must provide a union, on request, with
relevant information necessary to perform its collec-
tive-bargaining duties. NLRB v. Acme Industrial Co.,
385 U.S. 432, 435–436 (1967); Detroit Edison Co. v.
NLRB, 440 U.S. 301 (1979). As we have found above,
the ‘‘survey’’ was a sham creation, and the Respond-
ent did not rely on the information contained in the
‘‘survey’’ in determining its bargaining position. It
would be inconsistent to find that information com-
piled to deceive is necessary and relevant for intel-
ligent bargaining and would assist the parties in their
negotiations.5 Accordingly, we conclude the ‘‘survey’’
was not relevant information, and we find the Re-
spondent had no obligation to provide the sham docu-
ment to the Union. Therefore, we dismiss the refusal-
to-provide-information complaint allegation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Coal
Age Service Corporation, West Frankford, Illinois, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Refusing to bargain in good faith with its em-
ployees’ designated bargaining agent for the appro-
priate unit of employees; unilaterally creating a new
job position in the unit without notice to or oppor-
tunity for bargaining with the designated bargaining
agent; and refusing to bargain in good faith over the
terms and conditions of employment for the newly cre-
ated bargaining unit position.’’
2. Delete paragraph 1(c) and reletter the subsequent
paragraph.
3. Substitute the attached notice for that of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that the certification year
be extended 12 full months from the first bargaining
session at which good-faith bargaining commences.
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.
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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discriminate against our employees
because of their activities on behalf of International
Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, Local 483, AFL–
CIO or any other labor organization by laying them
off, issuing them warning letters, placing them on pro-
bation, or by any other adverse action with respect to
their wages, hours of employment, or other terms and
conditions of employment.
WE WILL NOT refuse to bargain in good faith with
our employees’ designated bargaining agent for the ap-
propriate unit of employees; WE WILL NOT unilaterally
create a new job position in the unit without notice to
or opportunity for bargaining with the designated bar-
gaining agent; and WE WILL NOT refuse to bargain in
574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
good faith over the terms and conditions of employ-
ment for the newly created bargaining unit position.
WE WILL NOT in any 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 Neal Heflin, whom we have
recalled to work from unlawful layoffs, for any loss of
earnings due him, plus interest.
WE WILL remove from the personnel files of Murray
Buckingham and Neal Heflin any record of their warn-
ing letters, probation, and layoffs found to have been
unlawful and notify them each in writing that no ad-
verse personnel action will be taken against them in
the future based on such records.
WE WILL, on the Union’s request, rescind the job
classification of inventory control clerk and bargain
with the Union concerning terms and conditions of em-
ployment of such position until either agreement or im-
passe in bargaining before reestablishing such unit po-
sition.
WE WILL recognize and, on request, bargain in good
faith with International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Helpers,
Local 483, AFL–CIO, as the designated exclusive bar-
gaining representative of the employees in the follow-
ing appropriate unit concerning wages, hours, terms,
and conditions of employment and, if an understanding
is reached, embody that understanding in a signed
agreement:
All full-time and regular part-time production and
maintenance employees, including the inventory
control clerk and truckdriver employed by the
Employer at its West Frankford, Illinois facility,
EXCLUDING office clerical employees, profes-
sional employees, guards, and supervisors as de-
fined in the Act.
COAL AGE SERVICE CORPORATION
Mary J. Tobey, Esq., for the General Counsel.
Michael J. Bobroff, Esq., of St. Louis, Missouri, for the Re-
spondent.
David M. Daniel, of East Alton, Illinois, for the Charging
Party.
DECISION
HAROLD BERNARD JR., Administrative Law Judge. I heard
these cases in St. Louis, Missouri, on February 24 and 25,
1992, following charges filed in November and December
1990, and in April, May, June, July, September, and Novem-
ber 1991 pursuant to which complaint issued November 13,
1991, alleging Respondent discriminatorily issued warning
letters, placed an employee on probation, and laid off an em-
ployee because of employees’ protected concerted and union
activities, and because employees testified at a Board hear-
ing; refused to bargain with the Union over the inventory
control clerk as an included category in the bargaining unit,
refused to furnish the Union with information requested by
the Union which is relevant to the Union’s representational
duties, and in the course of the parties’ collective bargaining
that the Respondent insisted on regressive wage and other
benefit proposals and failed to make meaningful concessions
thereby manifesting a settled intention not to reach any
agreement, thus failing to bargain in good faith, the above
conduct violating Section 8(a)(1), (3), (4), and (5) of the Act.
Based on the entire record, including briefs filed by coun-
sel for the General Counsel (General Counsel) and Respond-
ent, as well as the witnesses’ demeanor on the stand, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent does nonretail service and repair of coal min-
ing and related equipment at its location in West Frankford,
Illinois, for which services it receives over $50,000 annually
from business enterprises located in Illinois, each of which
satisfy other than a solely indirect standard for the assertion
of Board jurisdiction. I find as admitted that Respondent is
an employer engaged in interstate commerce as defined in
the Act, and that the Union is a labor organization as defined
therein.
II. THE UNFAIR LABOR PRACTICES
Absent the filing of exceptions thereto, the Board adopted
the decision by Administrative Law Judge Thomas R. Wilks
issued on March 1, 1991, that Respondent failed to bargain
in good faith with the Union since July 16, 1989, ‘‘by engag-
ing in regressive bargaining . . . for the purpose of avoiding
a collective bargaining agreement’’ thereby violating Section
8(a)(5) of the Act. Coal Age Service Corp., Cases 14–CA–
20381, 14–CA–20535, and 14–CA–20621, JD–53–91. That
decision found that Respondent also violated the Act by the
discriminatory and unilateral reduction of an employee’s
wage rate and by laying off employee Neal Heflin because
of his activities on behalf of the Union (supra ALJD pp. 21–
22). The present case arises with the above findings serving
where appropriate as a background for viewing the latest
complaint allegations.
Layoffs of Neal Heflin
The prior case held Respondent laid off Heflin unlawfully
on November 17, 1988, until March 21, 1988, because of his
activities on behalf of the Union. Respondent had also laid
Heflin off on two prior occasions which actions both led to
unfair labor practice charges which settled, and, as Judge
Wilks observed, as to those two cases ‘‘no unlawful past
conduct can now be inferred.’’ (Supra, p. 9.) At the hearing
before me the General Counsel alleged in her complaint that
Respondent laid Heflin off on December 7, 1990, recalled
him in January 1991, and then laid him off again on April
9, 1991, only to recall him yet again on April 22, 1991; and
that Respondent took this action, ‘‘because employee Heflin
was a discriminatee in previous Board cases, gave testimony
to the Board in the form of affidavits and testified at an un-
fair labor practice hearing in Cases 14–CA–20381 and 14–
CA–20535.’’ (G.C. Exh. 1(jj) par. 5(J).) She specifically al-
leges in this complaint at paragraph 10 that by the described
575COAL AGE SERVICE CORP.
conduct Respondent violated Section 8(a)(1), (3), and (4) of
the Act. Respondent amended its answer at the hearing be-
fore me to admit as being true all these complaint allegations
regarding employee Heflin and I therefore find such viola-
tions established.
The Warning Letter and Probation Given to Employee
Murray Buckingham
The complaint alleges Respondent also violated Section
8(a)(1), (3), and (4) of the Act by issuing employee Murray
Buckingham a warning letter and placing him on probation
on October 31, 1990, as well as by issuing him a second
warning letter on March 25, 1991, based on alleged defi-
ciencies in his work performance. Respondent stipulated at
this hearing that the above-disciplinary action against Buck-
ingham, its most senior bargaining unit employee with 10
years of service, was the result of observation and not
records and documents.
Buckingham’s work is welding in repair or fabrication of
mining equipment. He started working for Respondent 1
month after the business opened in 1980. He has served as
a union shop steward and a member on the Union’s bargain-
ing committee since mid-1988, and was present as a witness
at the 1988 unfair labor practice hearing then, although not
testifying. At the next hearing in May 1990, Buckingham sat
at the General Counsel’s table—the sole employee there—for
the entire week, and was a main witness called by her to
support the allegation in the complaint therein concerning
Respondent’s unlawful layoff of Neal Heflin. Judge Wilkins’
decision noted inter alia: ‘‘It is Buckingham’s uncontradicted
testimony that Willis (Respondent’s president and chief oper-
ating officer, Earl Willis) without even inspecting those
welds, admonished Buckingham for allowing Heflin to weld
and, out of hand, rejected Buckingham’s attempted expla-
nation that Heflin was capable to perform welding tasks.’’
(Supra, JD slip op. at 10, pars. 46–48.) This testimony clear-
ly contributed to the decision against Respondent on this
issue and was against Respondent’s interest, tending to show
a motive for Respondent’s later action against Buckingham.
In mid-September 1990 Earl Willis, Respondent’s presi-
dent and chief operating officer, met Buckingham in the Re-
spondent’s shop and talked to him alone, telling Buckingham
his intention to recall an employee, Duane Grogan, back to
work. Bearing in mind a union–respondent agreement on lay-
offs and recalls, as well as longstanding practice wherein se-
niority qualifications governed, Buckingham said that was
fine so long as all the welders on layoff were recalled, and
Willis responded that he planned on calling back Gene
Mayes and Jose Mendoza, but did not mention Carl Leber,
a member with Buckingham on the union bargaining com-
mittee whom Buckingham considered to be a welder. When
Willis said that Leber was not a welder Buckingham pointed
out that Willis had him on the seniority list as a welder, paid
him as a welder, and Leber welded daily prior to his layoff.
The subject changed then, when Willis said, ‘‘You know . . .
you’ve cost me thousands and thousands of dollars over this
union business.’’ (Emphasis added.) Buckingham recalls Wil-
lis then said, ‘‘this conversation never existed between you
and I and he said I run this place and don’t you ever forget
it, [and] I said fine.’’ Buckingham then said he had not cost
the company money and that if it was losing any money it
wasn’t his fault—that his only concern has been to see the
company prosper, whereupon Willis told him he didn’t be-
lieve him.
On October 31, 1990, without prior warning Respondent
summoned Buckingham to a meeting with President Earl
Willis, Plant Manager Wayne Willmore, and Foreman Dave
Johns and Jeff Warren. Willis said, ‘‘We need to talk to you
about your work performance and your attitude. He said
we’ve been watching you now for the last two years and your
work performance is just not what it should be.’’ (Emphasis
added.) Willis went on to say, ‘‘the other guys in the shop
are busting their butts and you’re just taking your sweet old
time,’’ and that Buckingham was taking entirely too much
time to do the jobs assigned to him so that other guys in the
shop were complaining and felt Buckingham should have to
carry his load the way they do. Willis denied Buckingham’s
request to identify the employees who complained and went
on to say that ‘‘they’’ accused Buckingham of deliberately
taking more time than was required to do his work. When
Buckingham attempted to offer an explanation as to the time
required on a pillow block job Willis brushed aside the ex-
planation merely commenting the employee would have to
do better, and gave him a warning letter already prepared
placing Buckingham on probation, accusing him of cheating
on Respondent, warning him against a recurrence, and de-
scribing two jobs as specific examples in support of the ac-
tion: work on a pillow block, and on mounting brackets.
(G.C. Exh. 14.)
At this hearing Buckingham described without contradic-
tion how the pillow block job required extra time ‘‘a good
hour’’ to perform because of the need to first clean the shaft
and seals before putting it on, unlike the usual situation when
the shaft is clean enough to be used at once. He testified fur-
ther to a specific job, in November 1, 1990, he identified by
job order number on a pillow block where the work was
being done by an employee named Ed Clanahan wherein the
shaft was already cleaned, yet the job took 2 hours and 15
minutes on 1 block—whereas he had installed 2 blocks in 3
hours. Had the other employee taken 2 hours and 15 minutes
to install the other block it would have taken 4-1/2 hours.
Regarding the mounting bracket assignment Buckingham
also testified without contradiction that Respondent was out
of necessary parts of the correct size, requiring their fabrica-
tion by him and doubling the time consumed to complete the
work beyond that normally involved. Employee Barry Mar-
quis, a welder, testified, also without contradiction, that it
normally took 1-1/2 hours to install a pillow block average,
depending on its condition—that an unclean shaft, old or
used, or one needing welding particles scraped off could take
3-1/2 hours, as he had sometimes required, to do such job
without being warned about slowness. After being removed
from probation on December 19, 1990, Willis told Bucking-
ham he had improved immensely and the latter replied he
hadn’t been working any differently.
The Second Warning Letter
On March 25, 1991, Respondent issued another warning
letter, again referring to Buckingham deliberately taking too
much time on four job assignments. Yet at this hearing
Buckingham credibly testified to extenuating circumstances
that persuasively explain why the work took longer than Re-
spondent says—in only purely general terms—it should have.
The first alleged ‘‘slow work’’ occurred on a railcar job
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which Buckingham worked on in November and December
during the very period on probation wherein Willis paradox-
ically told him his work had improved immensely. Further,
the Respondent, in assessing his work on the railcar in ques-
tion compared it with another railcar job where the work
needed to be done was not comparable work and thus not
a reliable standard by which to compare Buckingham’s
elapsed working time. Moreover, though other employees
were involved in the repair of the so-called unsatisfactorily
long job completion, Respondent only disciplined Bucking-
ham.
Revealingly, Respondent’s second alleged ‘‘slow work,’’
welding on a motor mount, wasn’t even performed by Buck-
ingham; whose preparatory work burning off some parts was
approved by supervision the day in question, Foreman Jeff
Warren granting permission for Buckingham to burn off the
parts one at a time since the parts were so large. The third
alleged ‘‘slow work’’ took the time it did, according to
Buckingham, because faster dual shield machines were al-
ready in use, he had to fabricate a guard for the fan and a
set of covers; and had to lay out the installation without ben-
efit of any blueprints. Respondent does not contest the truth
of this explanation. Regarding the EICO tracks, the fourth
example Respondent gave, it was Buckingham’s first experi-
ence doing this sort of work and he admitted this caused
some delay. Respondent’s letter states it took him 5 hours to
weld three such tracks whereas the letter stated, it takes 35
minutes each to weld them. (G.C. Exh. 16.) Buckingham’s
testimony shows that the wire on the welding machine ran
out when he started work; that when he changed the wire the
spool slipped and the wire punctured the vein in his wrist re-
quiring medical attention at the hospital. The following day,
slowed by the injury, he also confronted blocks on the tracks
requiring more welding time than usual. Employee witness
Marquis testified it takes him from between 50 minutes to
an hour to do such welding per track excluding extra time
if it is necessary to prepare the welder and cut the steel.
Once again Respondent did not refute or question the plau-
sible reasons for the employee’s elapsed working time either
to him or during its opportunity to do so at this hearing.
Respondent had never issued any warnings to Buckingham
or placed him or any employee on probation for production-
related reasons prior to the employee’s well-known involve-
ment with the Union as a shop steward, member on its bar-
gaining committee and as a main witness for the General
Counsel at a Board hearing concerning unfair labor practice
allegations against Respondent wherein Buckingham gave
testimony damaging to Respondent and in particular Re-
spondent’s president, Earl Willis. Only after such activity,
well known by Willis, is Buckingham told by Willis that he
has cost Respondent ‘‘thousands and thousands of dollars
over this union business.’’ A statement reasonably interpreted
to include within the purview of the terms ‘‘union business’’
both Buckingham’s open support for the Union as steward
and on the bargaining committee as well as his support for
the Union’s charges as a witness in the hearing on the com-
plaint arising form the Union’s charges. Willis, of course,
made no differentiation per se but, since there were no new
‘‘costs’’ to Respondent from any collective-bargaining agree-
ment—based on increased employee wages or other benefits,
at that time it would be surmisable that Willis was referring,
at least, in part, to the ‘‘costs’’ of defending in litigation be-
fore the Board the complaint allegation that Buckingham’s
testimony supported.
The evidence of Respondent’s knowledge of Bucking-
ham’s activities in both these regards, and its animus toward
the employee based thereon, is augmented by the clearly un-
founded, and unpersuasive reasons it advances for the two
warning letters and unprecedented allegedly work-related
probation of the employee as detailed above. Respondent
brushed aside compelling justifiable circumstances as well as
just plain error by its own supervision behind each of its ac-
cusations against Buckingham for alleged ‘‘slow-work.’’ To
inform the employee that Respondent had been watching him
for 2 years, a period of time coinciding with Buckingham’s
protected activities confirms Respondent’s animus further.
This statement to Buckingham thus is either an exaggeration
way beyond truth casting grave doubts on Respondent’s bona
fides behind the action against the employee or a significant
indication that its reasons for such actions were based on un-
lawful considerations.
I conclude the General Counsel has established sufficient
evidence, a prima facie case, that Respondent unlawfully
warned and placed on probation this employee for the imper-
missible reasons noted above his protected activities. Since
Respondent, I find, has failed to carry its resulting burden of
proof that it would have acted against him as described even
apart from such activities, I find Respondent violated Section
8(a)(1), (3), and (4) of the Act. Wright Line, 251 NLRB
1083 (1980).
The Inventory Control Clerk
The Union became certified bargaining representative on
April 10, 1989, for a unit of:
All full-time and regular part-time production and
maintenance employees and truckdrivers employed by
respondent at its Whittington, Illinois facility, excluding
office clerical and professional employees, guards and
supervisors as defined in the Act.
The parties stipulated that following its move from
Whittington to a new location 20 to 25 miles away in West
Frankford, Illinois, in 1990 the Respondent voluntarily con-
tinued to recognize the Union as the bargaining representa-
tive of its employees.
After making the move, Respondent’s president, Earl Wil-
lis, created the position of inventory control clerk, designated
laborer employee Stewart Hungate for the position, and draft-
ed a job description outlining his duties on September 13,
1990. (R. Exh. 2.)
While a laborer employee at Whittington and West
Frankford, Hungate was included in the bargaining unit. The
new job description involves responsibility for keeping track
of parts and supplies out in the plant under the shop super-
visor. Hungate is hourly paid, punches a timeclock, shares
the same benefits as other unit employees, works under the
same supervision as other employees in the unit, and spends
20 to 50 percent of his time performing production and
maintenance duties when not in the plant parts office or
warehouse. His job description requires him to check with
the shop supervisor on what supplies are needed before giv-
ing the purchasing agent a list of items. There is no evidence
that he has any supervisory or managerial duties whatsoever
577COAL AGE SERVICE CORP.
and the testimony of employee witnesses makes clear that
they regularly pick up parts they need in Hungate’s absence
from the vicinity of the parts area or his office when, as reg-
ularly occurs he is performing production and maintenance
work. I find that Hungate’s duties and benefits are akin to
those of a plant clerical employee sharing a community of
employment interests with the production and maintenance
employees and that the job classification of inventory control
clerk is an accretion to the unit in which Hungate was at all
material times included. Weyerhauser Co., 173 NLRB 1170
(1968); and Armour & Co., 119 NLRB 623 (1957).
During a bargaining session on May 21, 1991, shop stew-
ard and bargaining committee member Murray Buckingham
noticed that Hungate’s name was missing from a seniority
list the parties were discussing, in a context of bargaining for
a new contract, and asked why. Respondent’s chief nego-
tiator, a labor consultant, Kenneth Carroll answered because
Hungate was not in the bargaining unit. Union business rep-
resentative and the local union’s president, David Daniel, tes-
tified without denial or any countervailing evidence whatso-
ever that this was the first time he had heard about Hungate
and indicated at this hearing he only learned about Hungate’s
clerking position for the first time on May 21, 1991. It was
Respondent’s duty under established Board law to inform the
Union as collective-bargaining representative of its employ-
ees concerning its decision to create a new bargaining unit
classification in advance of the decision and implementation
of same so as to accord the Union notice and an opportunity
to bargain about the decision and its impact on unit employ-
ees. This the Respondent did not do, and I find that Re-
spondent thereby violated Section 8(a)(5) of the Act.
Although he took the stand and testified concerning other
matters, Carroll never denied the corroborated testimony by
Buckingham and Daniel that Respondent refused to bargain
over Hungate’s terms and conditions of employment by tak-
ing the position that Hungate was not included in the bar-
gaining unit during negotiations on May 21, 1991. By doing
so, Respondent compounded its unlawful conduct in creating
the inventory control clerk position unilaterally to begin with
and further violated its duty to bargain over employment
conditions for unit employees in contravention of Section
8(a)(5) of the Act.
Respondent’s Refusal to Provide Information
During the course of the parties’ bargaining for an agree-
ment Respondent, according to its president and chief operat-
ing officer, Earl Willis, took the position that it had to secure
a reduction in the current wages and benefits paid to its em-
ployees in order to remain competitive. Willis made this de-
cision on the Union’s becoming certified, he said, out of con-
cern that Respondent would become locked into (a contract
established wage and benefit cost) with no opportunity to re-
duce such costs if required by competition, which competi-
tion he testified he checked, and found that Respondent
‘‘paid more’’ than they did therefore requiring a reduction in
Respondent’s employees benefits. Prompted by what he
termed the need ‘‘to justify our requested concessions,’’ Re-
spondent surveyed 10 alleged competitors and compiled a list
containing benefits paid to such companies’ employees under
circumstances allegedly requiring that the identity of the
companies remain confidential.
At the parties’ bargaining session on May 16, 1991, Union
Business Manager David Daniel recalled that there had been
talk at that time of Respondent getting a competitive position
and (its) need for a reduction in wages. Daniel and Respond-
ent’s labor consultant, Ken Carroll, discussed who the com-
petitors were and Carroll promised a list would be provided
at the next meeting with the companies’ wages and benefits,
etc. that would pertain to negotiating a contract with Re-
spondent. The Union’s International representative, Charles
Fuchs, asked for various items to be included on the list such
as he would like to see the wages, their benefits, and things
that would pertain to the parties’ negotiations, including open
items—that would be affected by a list of that nature.
On May 21, 1991, Carrol presented the list to the Union
as its response to the Union’s earlier request on May 16.
(G.C. Exh. 7.) The list contained itemized wage and benefit
data concerning 10 companies on one side of the paper, and
the names of the companies on the other side with no con-
nective correlation between the two, so that the information
contained as to wages and benefits could not be attributed to
its source company. Fuchs complained over the scrambled
information arising from the inadequate identification of
companies, and Carroll said Respondent did not have to give
the Union the competitors as such; and further, that it was
confidential between the Company and those firms. There
was talk and disagreement over why a company like Joy
Technology was left off the list, a company the Union had
a contract with and believed was also a competitor to Re-
spondent, and questions were raised by the Union regarding
the competitive positions of some companies on the list.
Fuchs asked the Company to give the Union, ‘‘something in
order [connected to each company] so the Union could un-
derstand the list’’ and whether Respondent was going to
make a serious offer. Carroll replied he’d make one that was
competitive as the Company wanted to get with a competi-
tive mode, a concern he repeated during the parties’ meeting
on August 6, 1991, when Respondent proposed a 50-cent-an-
hour wage cut Carroll justified by the remark that it was for
competitive reasons.
As has been stated and quoted before,
It is well settled that an employer has a statutory
duty to provide a union, on request, with relevant infor-
mation the union needs for the proper performance of
its duties as a collective-bargaining representative.
NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436
(1967); Detroit Edison Co. v. NLRB, 440 U.S. 301
(1979). In determining whether an employer is obli-
gated to supply particular information the question is
only whether there is a ‘‘probability that the desired in-
formation is relevant, and that it would be of use to the
union in carrying out its statutory duties and respon-
sibilities.’’ NLRB v. Acme Industrial Co., supra at 437.
As the Supreme Court has stated, the disclosure obliga-
tion is measured by a liberal ‘‘discovery-type stand-
ard,’’ not a trial-type standard, of relevance. Ibid.
Where the requested information deals with information
pertaining to employees in the unit which goes to the
core of the employer-employee relationship, said infor-
mation is ‘‘presumptively relevant.’’ Shell Development
Co. v. NLRB, 441 F.2d 880 (9th Cir. 1971). Where the
information is presumptively relevant, the employer has
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the burden of proving lack of relevance. Prudential In-
surance Co. [v. NLRB], 412 F.2d 77 (2d Cir. 1969).
‘‘But where the request is for information with respect
to matters occurring outside the unit, the standard is
somewhat narrower . . . and relevance is required to be
somewhat more precise. . . . The obligation is not un-
limited. Thus, where the information is plainly irrele-
vant to any dispute there is no duty to provide it.’’
Ohio Power Co., 216 NLRB 987, 991 (1975); Doubarn
Sheet Metal, 243 NLRB 821, 823 (1979). Thus, where
the requested information deals with matters outside the
bargaining unit, the union must establish the relevancy
and necessity of its request for information. San Diego
Newspaper Guild Local 95 v. NLRB, 548 F.2d 863 (9th
Cir. 1977).
In General Electric Co., 188 NLRB 920 (1971), the
Board held that the employer was obligated to furnish
the union with all the information requested upon
which the employer relied including a comparative
wage survey of the employer’s competitors. See 188
NLRB at 921.
Mobil Exploration & Production, 295 NLRB 1179, 1180
(1989).
It is clear that given Respondent’s admitted reliance on the
survey of its competition demonstrating, it alleged, that it
needed wage and benefit reductions in any contract with the
Union in order to stay competitive, that such information was
clearly relevant to the Union’s proper performance of its du-
ties as a collective-bargaining representative. This list was
the very core of the Respondent’s position as admitted by its
president. Respondent therefore was obligated to provide suf-
ficient information on this subject, which it secured in the
form of a written survey, pursuant to the Union’s request. It
is readily apparent that the information given to the Union
in the form of a scrambled survey withholding the identity
of the company from the data alleged to have been secured
from it prevented the Union from verifying its accuracy and
was therefore incomplete and inadequate to the Union’s per-
formance of its bargaining duties. The issue of identification
was closely related as well to the issue of whether the data
was or was not germane, that is whether the companies
shown were fairly reflective or representative of the Re-
spondent’s operation, composition of its work force, and the
type of work performed. Further, the parties became em-
broiled in dispute over the nature of the companies—whether
they were truly competitive or not; and whether more compa-
nies should have been on the list. These issues could have
been reconciled to the betterment of the parties bargaining
efforts had Respondent provided that nexus information.
Regarding the Respondent’s claim of confidentiality, the
evidence in support of this contention was purely hearsay at-
tributions by Respondent witnesses as to what the alleged
competitor company officials said to them and under what
circumstances those conversations occurred. Since such hear-
say testimony was offered by Respondent to prove its own
defense I consider it unreliable hearsay untested by cross-ex-
amination and do not rely on it. Respondent failed to estab-
lish that it promised anonymity to the companies on the list
or attempted to accommodate its concerns and its bargaining
obligation even if it did. Fairmont Hotel, 304 NLRB 746 fn.
3 (1991). In any event, the parties may bargain regarding the
conditions under which the information may be protected
from unauthorized viewers. Mobil Exploration & Production,
supra at 1181; E. I. Dupont & Co., 276 NLRB 335, 336
(1985). I find that Respondent violated Section 8(a)(5) of the
Act by refusing the Union’s request for information regard-
ing the identity of the competitors matched with the data in
Respondent’s wage and benefit survey. A.M.F. Bowling Co.,
303 NLRB 167, 169 (1991), wherein the Board stated, ‘‘the
Board has consistently required employees to provide any
wage surveys on which they have relied in the formulation
of the bargaining proposals when the Union requests such in-
formation.’’ Respondent’s production of a wage survey in
scrambled and insufficient form does not in my view satisfy
its obligation under Board law for the reasons stated.
Respondent’s Failure to Bargain in Good Faith
In his March 1991 decision adopted by the Board cited
above, Judge Wilks concluded, inter alia, that during some
30 contract bargaining sessions attended by the Union and
Respondent and held between May 2, 1988, and April 13,
1990, ‘‘[this] Respondent violated Section 8(a)(1) and (5) of
the Act by taking an intransigent position in bargaining for
regression in the employees’ existing wage benefits structure
for the purpose of frustrating a collective bargaining agree-
ment.’’ Supra at 168.
The complaint before me alleges that during the later ensu-
ing period between May 16, 1991, and during nine more
contract bargaining sessions between the same parties, the
last on February 17, 1992, Respondent continued its failure
to bargain in good faith by still further insistence on reduc-
tion in employees’ wages and benefits, elimination of certain
benefits and by refusing to make meaningful concessions re-
garding union contract proposals, the conduct being designed
to frustrate negotiations and preclude reaching an agreement
with the Union.
The record fully supports these allegations, for it shows
that Respondent was undeterred by the Board’s Order fol-
lowing the earlier decision and continued a clear identical
pattern of conduct in bargaining for regression in the em-
ployees’ existing wage and benefit structure in the latest set
of negotiations between May 1991 and February 1992 now
under judicial scrutiny.
The parties met on June 13, 1990, where the Respondent
rejected the Union’s proposal for union security and checkoff
prompting a counter by the Union to allow current employ-
ees to come under such clauses while new employees would
have their choice. Respondent still rejected the offer of any
such proposal, its representative stating it did not believe the
Union had enough support to warrant the clause, without
making any counterproposal. On May 16, 1991, Respondent
proposed extending the employee probationary period from
45 to 180 days and withdrew its agreement with the Union,
reached on the same topic on May 21, 1991, allowing greater
rights to employees to avoid overtime assignments based on
seniority proposing instead a more involuntary system for
such assignments. Respondent, also during the meeting,
talked about securing wage reductions to remain competitive.
On May 21, 1991, Respondent sought to restrict employee
holiday pay benefits by requiring employees to work both
the day before and after such holidays to be eligible for pay-
ment, while under the existing benefit there was only a re-
quirement of working either the day before or after. At the
579COAL AGE SERVICE CORP.
1 NLRB v. Herman Sausage Co., 275 F.2d 229, 231 (5th Cir.
1960).
2 NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (1st Cir.
1953), cert. denied 346 U.S. 887 (1953).
3 Id. at 135.
meeting on June 11, 1991 (corrected by witness Daniel to
July 2, 1991), Respondent continued to maintain a regressive
posture, proposing that employee medical care insurance ben-
efits be substantially cut by eliminating any employee de-
pendent care coverage from the employer-funded plan then
in existence, so that employees would have to pay for such
coverage themselves. Since Labor Consultant Carroll based
such proposal on what he termed rising costs, the Union
countered with a proposal that the parties stay with the
present coverage but the Union would pay any increase in
the cost of such benefits arising in the future. Unaccountably
Carroll rejected the proposal. Later on February 17, 1992, the
Respondent, with the Union’s agreement put a policy in
force with dependent coverage due to savings for Respondent
over the costs of the present plan. However, again raising a
serious question about its bona fides in these negotiations,
Respondent Attorney Michael Bobroff, with witness Daniel,
union business agent on the stand concurring in his under-
standing, stated that as far as any new contract with the
Union was concerned Respondent’s position was the same,
that is, that Respondent wants the employees to pay for de-
pendent coverage. The fact that Respondent found a plan
with dependent coverage—other than the existing plan—at a
savings to Respondent, yet insisted that any new contract
with the Union exclude the employees’ existing benefit of
dependent care coverage belies any real concern over costs,
casts suspicion over its outright rejection of the Union’s offer
to shoulder increased costs for such coverage, and suggests
a regressive bargaining designed to frustrate, in one more of
many ways, the reaching of an agreement with the Union.
On July 2, 1991, Respondent proposed stripping employ-
ees’ rights to file grievances concerning Respondent’s deter-
mination of qualifications for layoff and recall purposes con-
trary to an earlier understanding with the Union. (G.C. Exh.
9.) While dropping its proposal later, the regressive proposal
necessarily detracted from efforts by the Union to secure an
agreement and Respondent’s proposal throughout the ses-
sions made no mention of an employee pension plan.
It is clearly the case that Respondent never made any offer
concerning the wage rates to be included in a contract other
than to propose reductions in employee current wages. Labor
Consultant Carroll testified that from the beginning, after the
Union proposed 50-cent-an-hour increases for each of 3
years, then dropped its proposals to zero, 50 cents, 50 cents,
the Respondent’s only proposals have been to reduce the ex-
isting employee wages, from $2-an-hour decreases, then
$1.50, then in April 1990 to $1, and most recently to a 50-
cent-an-hour decrease proposal in August 6, 1991. The
Union even proposed that it would agree that Respondent
could set whatever starting wage rate it wanted for new em-
ployees and that current wage rates would remain the same
but Carroll refused the offer citing the need to remain com-
petitive.
Employee Buckingham testified without denial there had
never been a general wage cut in the history of the Com-
pany. Significantly, it was Respondent’s professed need to
remain competitive which served as the basis for its continu-
ing insistence on reducing employee wages and benefits, yet
Respondent failed to support such claim by the wage survey
it purportedly relied on to justify such posture in negotiations
with the Union, a survey which Respondent’s owner admit-
ted contained the names of companies he was not even sure
were Respondent’s competitors.
The General Counsel aptly notes in brief the following ap-
propriate summary of Board law set forth in Atlanta Hilton
& Tower, 271 NLRB 1600, 1603 (1984), and quoted in
Brannan Sand & Gravel Co., 289 NLRB 1492, 1500 (1988):
The Board has summarized certain general require-
ments of good-faith bargaining in Atlanta Hilton &
Tower, 271 NLRB 1600, 1603 (1984), as follows:
Under Section 8(d) of the Act, an employer and
its employees’ representative are mutually required
to ‘‘meet at reasonable times and confer in good
faith with respect to wages, hours, and other terms
and conditions of employment . . . but such obliga-
tion does not compel either party to agree to a pro-
posal or require the making of concession.’’ Both the
employer and the union have a duty to negotiate
with a ‘‘sincere purpose to find a basis of agree-
ment,’’1 but ‘‘the Board cannot force an employer to
make of a concession’’ on any specific issue or to
adopt any particular position.’’2 The employer is,
nonetheless, ‘‘obliged to make some reasonable ef-
fort in some direction to compose his differences
with the union, if (a)(5) is to be read as imposing
any substantial obligation at all.’’3
The administrative law judge, whose decision in Brannan
was adopted by the Board further stated as follows:
The foregoing clearly enunciates the Board’s role in
cases of this nature, namely, to ascertain whether the
parties are making a sincere effort to find a basis of
agreement by making some reasonable effort in some
direction to resolve their differences. Any rational em-
ployer must necessarily understand that its refusal to
agree to an increase in wages or benefits operates as an
impediment to the culmination of an agreement; that its
insistence on reducing those wages or benefits that the
employees have previously enjoyed makes the negotia-
tion of an agreement highly unlikely unless the em-
ployer can convincingly demonstrate that economic ne-
cessity mandates such reduction to provide continued
employment; that, absent economic necessity, its with-
drawal of significant terms and conditions of employ-
ment, which the employees have enjoyed and relied on
over extended periods of time, and which provide for
job security during their employment and economic se-
curity thereafter, virtually mandates that no agreement
will be reached; and that its total negation of each and
every significant contract provision and its insistence
that it maintain total control over each aspect of the
employment relationship absolutely precludes, beyond a
shadow of a doubt, the reaching of an agreement, as no
self-respecting union will execute such a document.
Thus it is crystal clear that the Respondent, from the
very inception of bargaining, could not have harbored
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
the slightest hope that its initial contract proposals,
from which it did not deviate in any significant respects
throughout the entire course of bargaining, would ever
be acceptable to the Union.
It is evident from Respondent’s regressive bargaining to
reduce employee wages and benefits, water down their rights
in any future contract, eliminate benefits currently enjoyed,
failure to make concessions, commission of contemporary
unfair labor practices discriminating against employees be-
cause of their union activities and testimony at Board hear-
ings—as well as unlawful unilateral changes in their employ-
ment conditions, refusal to provide relevant information to
the Union, and unlawful refusal to bargain about a unit em-
ployees’ terms of employment that Respondent was bent on
a course of conduct, when viewed in its totality, which clear-
ly violated its duty to negotiate with a sincere purpose to
find a basis for agreement and was aimed instead at avoiding
any contractual relationships with the Union.
Accordingly, I find Respondent failed to bargain in good
faith with the Union for the reasons noted above, thereby
violating Section 8(a)(5) of the Act. Harrah’s Marina Hotel
& Casino, 296 NLRB 1116 (1989); Mooresville IGA
Foodliner, 284 NLRB 1055 (1987); Palestine Bottling Co.,
269 NLRB 639 (1984); and Hedaya Bros., 277 NLRB 942
(1985).
CONCLUSIONS OF LAW
1. The following employees of Respondent (the unit) con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(c) of the Act:
All full-time and regular part-time production and
maintenance employees, including the inventory control
clerk and truckdriver employed by Respondent at its
West Frankford, Illinois facility, EXCLUDING office
clerical employees, professional employees, guards, and
supervisors as defined in the Act.
2. Since about December 15, 1987, and at all times mate-
rial here, the Union has been the designated exclusive collec-
tive-bargaining representative of the unit and since about
March 9, 1988, the Union has been recognized as such rep-
resentative by Respondent. On April 10, 1989, the Union
was certified as the exclusive collective-bargaining represent-
ative of the unit.
3. At all times since December 15, 1987, the Union, by
virtue of Section 9(a) of the Act, has been, and is, the exclu-
sive representative of the unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment.
4. Respondent has engaged in unfair labor practices which
affect commerce within the meaning of the Act as found
above in this decision by:
(a) Laying off employee Neal Heflin on December 7,
1990, and again on April 9, 1991, because of his protected
activities supporting the Union and because he testified in a
Board hearing thereby violating Section 8(a)(1), (3), and (4)
of the Act.
(b) Issuing warning letters on October 31, 1990, and
March 25, 1991, to employee Murray Buckingham and plac-
ing him on probation on October 31, 1990, because he sup-
ported the Union and because he testified at a Board hearing
thereby violating Section 8(a)(1), (3), and (4) of the Act.
(c) Unilaterally creating the new position of inventory con-
trol clerk in the unit without affording the Union notice or
an opportunity to bargain thereby violating Section 8(a)(1)
and (5) of the Act.
(d) Refusing to bargain over the terms and conditions of
employment governing the position of inventory control clerk
on May 21, 1991, thereby violating Section 8(a)(5) and (1)
of the Act.
(e) Refusing to furnish the Union on request with relevant
information contained in a wage and benefit survey on and
after May 21, 1991, in violation of Section 8(a)(5) and (1)
of the Act.
(f) Continuing to refuse and fail to bargain in good faith
with the Union since the inception of the parties’ bargaining,
including the negotiations reviewed here beginning June 13,
1990, by engaging in regressive bargaining with respect to
wages, benefits, and terms and conditions of employment
and by tactics described above in the body of this decision
designed to frustrate and forestal reaching any collective-bar-
gaining agreement with the Union, thereby violating Section
8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in viola-
tions of Section 8(a)(1), (3), (4), and (5) of the Act, I shall
recommend that it be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate the
polices of the Act, including an order that it bargain in good
faith with the Union during a 12-month certification year to
commence with the first bargaining session at which Re-
spondent bargains in good faith. Mar-Jac Poultry Co., 136
NLRB 785–786 (1962); Van Dorn Plastic Machinery, 300
NLRB 278 (1990).
Having found that Respondent unlawfully laid off em-
ployee Neal Heflin, I recommend that Respondent be ordered
to make him whole for any loss of earnings suffered as a re-
sult of its unlawful conduct by payment of a sum equal to
that which he would have earned absent the discrimination
with backpay to be computed in the manner set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), and with inter-
est thereon to be computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). I shall
also recommend that Respondent be ordered to rescind its
unilateral action creating the position of inventory control
clerk and bargain with the Union thereto on request.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Coal Age Service Corporation, West
Frankford, Illinois, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
581COAL AGE SERVICE CORP.
5 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.’’
(a) Discriminating against its employees because of their
activities on behalf of International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and Help-
ers, Local 483, AFL–CIO or any other labor organization by
laying them off, issuing warning letters, placing them on pro-
bation or by any other adverse action with respect to their
wages, hours of employment, or other terms and conditions
of employment.
(b) Refusing to recognize and bargain in good faith with
its employees’ designated bargaining agent for the appro-
priate unit of employees including the inventory control clerk
by insisting on a regression in wages, benefits, and/or other
conditions of employment for the purpose of avoiding a col-
lective-bargaining agreement or by unilaterally creating a
new job position in the unit without notice to or opportunity
for bargaining with their designated bargaining agent.
(c) Refusing to furnish the Union with requested informa-
tion concerning the identity of the competitors contained in
the wage and benefit survey.
(d) In any manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed by Section
7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole Neal Heflin for any loss of earnings that
may be due to him in the manner set forth in the remedy
section of this decision.
(b) Remove from the personnel files of Murray Bucking-
ham and Neal Heflin any records of their warning letters,
probation, and layoffs described here and notify them in
writing that no adverse personnel action will be based on
such records in the future.
(c) On the Union’s request rescind the job classification of
inventory control clerk and bargain with the Union concern-
ing terms and conditions of employment of such position
until either agreement or impasse in bargaining before rees-
tablishing such position.
(d) Recognize and, on request, bargain in good faith with
International Brotherhood of Boilermakers, Blacksmiths,
Forgers and Helpers, Local 483, AFL–CIO as the designated
exclusive bargaining representative of the employees in the
following appropriate unit concerning wages, hours, terms
and conditions of employment and, if an understanding is
reached, embody that understanding in a signed agreement:
All full-time and regular part-time production and
maintenance employees, including the inventory control
clerk and truckdriver employed by Respondent at its
West Frankford, Illinois facility, EXCLUDING office
clerical employees, professional employees, guards, and
supervisors as defined in the Act.
(e) Give advance notice to and bargain in good faith with
the Union about any future change of the bargaining unit
composition.
(f) Post at its West Frankford, Illinois place of business
copies of the attached notice marked ‘‘Appendix.’’5 Copies
of the notice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the certification year be ex-
tended 12 full months from the first bargaining session at
which good-faith bargaining commences.