Comau, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 26, 2012

07-CA-073073 (N.L.R.B. Dec. 26, 2012)

JD–68–12
Novi, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
COMAU, INC.
and Case 7-CA-73073
WISNE AUTOMATION EMPLOYEES ASSOCIATION
Darlene Haas Awada and Patricia Fedewa, Esqs.,
for the Acting General Counsel.
Theodore Opperwall, Thomas Kienbaum, and Ryan Bohannon,Esqs.
for the Respondent.
Larry LaForest
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was tried in Detroit, Michigan
on October 1, 2, and 3, 2012. The Wisne Automation Employees Association (WAEA) filed the
charge on January 25, 2012, a first amended charge on March 5, 2012, and a second amended
charge on April 16, 2012. The General Counsel issued the complaint on April 27, 2012.
The complaint alleges that the Respondent, by Tom Durocher, violated Section 8(a)(1) of
the Act in early January 2012 by coercively interrogating employees about their discussions of
union matters with other employees and directing employees not to discuss union matters with
other employees and by, on or about January 18, 2012, threatening employees that if they did not
accept new work rules that vary from the provisions in their collective-bargaining agreement,
they could take layoffs. The complaint also alleges that the Respondent, by Mark Corich,
violated Section 8(a)(1) about February 24, 2012, by informing employees in the WAEA unit
that their Union no longer existed.
The complaint also alleges that the Respondent violated Section 8(a)(5) and (1) of the Act
by engaging in unilateral changes in the following respects on the following dates: on December
1, 2011, announcing to unit employees the idling of the Wisne Automotive facility; on December
15, 2011,by idling that facility and transferring unit work and unit employees to other facilities,
including its Royal Oak facility and its Novi facility; and on February 24, 2012, by Mark Corich,
JD–68–12
2
by informing employees that officials of the WAEA would no longer be able to conduct union
business during work time.
The complaint further alleges that the Respondent violated Section 8(a)(5) and (1) and 8
(d) of the Act by engaging in the following conduct: about January 23, 2012, at its Novi facility, 5
failing to continue in effect all the terms and conditions of the WAEA agreement by distributing
new work rules to unit employees which altered certain provisions of the WAEA agreement and
about February 3, 2012, at its Royal Oak facility, failing to continue in effect all the terms of the
WAEA agreement by distributing new work rules which altered certain provisions of that
agreement.10
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel and the Respondent, I make the
following
15
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and place of business in Southfield 20
Michigan, and various facilities in the metropolitan Detroit, Michigan area is engaged in the
design, nonretail sale, and installation of automated industrial systems. During the calendar year
ending December 31, 2011, the Respondent performed services valued in excess of $50,000 in
States other than the State of Michigan. The Respondent 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 25
Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background30
The Respondent, which is wholly owned by Fiat, designs, builds and installs automated
assembly lines and robotic equipment, principally for the automotive industry. The Respondent
employs approximately 1100 individuals in the United States at various facilities. In the Detroit,
Michigan, metropolitan area the Respondent operates five production facilities: Comau 35
Automation, which is referred to by the parties as Comau Automation or Wisne Automation
(Wisne); Novi Industries; Southfield, Royal Oak, and Warren. The Respondent's permanent
production employees are skilled employees who work in classifications such as machine
builder, electrician, pipefitter, robot technician, and welder. The Respondent also employs
individuals on certain projects obtained from staffing agencies. The parties refer to these 40
individuals as "contractors."
The WAEA represents approximately 44 unit employees who generally work at the
Wisne (Comau Automation) facility. The Respondent and the WAEA have had collective-
bargaining history since 2000 when the Respondent acquired its operations in the Detroit area 45
(Tr. 270). The record contains the 2008 to 2011 collective-bargaining agreement between the
JD–68–12
3
parties (Jt. Exh. 5) and their present collective-bargaining agreement, which is effective from
August 22, 2011, to May 3, 2015 (Jt. Exh. 6).
The collective-bargaining agreement indicates that the Respondent recognizes the WAEA
as the exclusive bargaining representative in the following unit:5
All full-time and regular part-time production and maintenance employees,
including inspectors, employed by the Employer at its facilities located at 42445
West 10 Mile Road, Novi, Michigan, but excluding all office clerical employees,
guards and supervisors as defined in the Act.110
The Respondent also operates two plants located at 44000 and 43900 Grand River, in
Novi, Michigan, which are referred to as Novi Industries (Novi or the Novi facility). The
production and maintenance employees at the Novi facility are represented by the Novi
Industries Employees Association (NIEA). There are approximately 200 employees in that15
bargaining unit. At the Respondent’s facility in Southfield, Michigan, the production and
maintenance employees are represented by the Comau Employees Association (CEA). There are
approximately 170 employees in that bargaining unit.2 The Respondent also operates facilities in
Royal Oak and Warren, Michigan. At the time of the hearing there were approximately 100
unrepresented "white-collar" employees and 15 unrepresented production and maintenance 20
employees working at the Royal Oak facility. The Warren facility is normally used for relatively
short-term projects and the Respondent has not employed permanent employees at that facility.
All of the individuals working at Warren at the time the hearing were contractors.
The three unions representing the Respondent's employees in the Detroit area are 25
independent unions and are not affiliated with each other. Each union has a separate collective-
bargaining agreement with the Respondent which it negotiates individually. The employees
represented by the WAEA have their own seniority list. This list sets forth the seniority date of
each employee in the classification in which they work (i.e., machine builder, electrician, and
pipefitter). This list is updated by the Respondent each month.30
During the time material to this case, Marco Andriano was the Respondent's director of
manufacturing; David McKee served as its general counsel; Lisa Cormier was the human
resources director; Tom Durocher was the Novi plant manager, and Mark Corich was a
supervisor at Novi.3 Larry LaForest was the WAEA’s president; Paul Ciaramitaro was the35
treasurer; and Jack Vargo was the secretary.

1 The complaint alleges that the appropriate unit is somewhat different than the contractual unit
description. In relevant part, the complaint describes the geographic location of the employees in the unit
as follows: “employed by Respondent at and out of its facility located at 42445 West 10 Mile Road, Novi
Michigan.” The Respondent's answer denied the unit pled in the complaint is the appropriate unit.
2 The recent collective-bargaining history at that facility is discussed extensively in Comau Inc., 356
NLRB No. 21 (2010) enf. denied 671 F.3d 1232 (D.C. Cir. 2012) and Comau Inc., 358 NLRB No. 73
(2012).
3 At the time of the hearing Durocher and Corich were no longer employed by the Respondent.
JD–68–12
4
The Respondent’s represented employees at times work outside their “home plant”
(Wisne, Novi, or Southfield) by being temporarily assigned to another one of the Respondent’s
facilities or being assigned to “field service” work. Field service work occurs when the
Respondent's production employees are assigned to work at a customer's facility, typically
installing the Respondent’s equipment at the facility or performing maintenance work.5
The current contract between the Respondent then the WAEA provides for "Location
Transfer" (Jt. Exh. 6, article 4.04). This article provides, in relevant part:
From time to time, when absolutely necessary, that Company may require 10
employees to work temporarily at other permanent or temporary Comau Inc.
facilities in Southeastern Michigan. When such transfers are needed the Company
will follow the seniority roster with the lowest seniority employee requested to go
first. Except as set forth in Article 5: Field service for new employees, if an
employee refuses the transfer and there are no other volunteers to replace him/her,15
he/he will suffer no disciplinary action and will be placed on laid off status.
The Application of the WAEA Contract outside of the Wisne (Comau) Automation plant prior to
January 2012
20
In 2009, the Respondent temporarily closed the Wisne plant and did not reopen it until
January 2011. On March 25, 2009, the Respondent, the WAEA, and the NIEA executed a letter
of understanding which provided that the WAEA and the NIEA would coexist in the Novi
facility and that WAEA represented employees would perform a specified list of projects. The
agreement specifically indicated that “During this period, both the NIEA and the WAEA will 25
maintain their current structure with respect to its Union committee, team leaders and seniority.”
Pursuant to this agreement, the WAEA represented employees worked on the enumerated
projects in a specific bay located at the Novi Industries facility. During this period all of the
provisions of the WAEA collective-bargaining agreement applied to the employees the WAEA
represented while they were working at Novi. 30
Prior to January 2012, there are other instances of the WAEA contract being applied to
Wisne employees when they were working outside of the Wisne facility. The record establishes,
and the Respondent does not dispute, that the provisions of the WAEA contract regarding wages,
health insurance, life and disability insurance, the 401(k) plan, classifications, and paid holidays35
were applied to WAAE represented employees regardless of where they worked.
The dispute between the parties involves essentially the application of the attendance
policies and shop rules contained in the WAEA contract, and practices regarding overtime and
layoff, to WAEA represented employees working outside of the Wisne Automation plant . In this 40
connection, LaForest testified that when he worked at the Royal Oak facility during the period
from January through May 2010, he was able to use his personal days and vacation days as set
forth in the WAEA contract (Tr. 149, GC Exh. 44.) Ciaramitaro testified that while working at
the Novi facility in May and June 2010 the WAEA employees were assigned overtime prior to
contractors. During this period Ciaramitaro was never informed by anyone in management that 45
the shop rules in the WAEA contract did not apply to him. Vargo testified that all the provisions
of the WAEA contract, including the shop rules in article 26, applied to him when he worked at
JD–68–12
5
the Novi facility from October 2011 until January 2012, when new rules were applied at the
Novi facility. (Tr. 79, 84-86.) Vargo also testified that when assigned to field service work the
WAEA contract governs his conditions of employment, but he acknowledged that he would also
have to abide by the customer's plant rules.
5
Current employee Steve Brooks testified that he has worked for the Respondent and its
predecessor as a pipefitter since 1984. During his entire period of employment his home plant
has been the Wisne facility and he has always been represented by the WAEA. In September
2009 he was assigned to the Respondent's Royal Oak facility and worked there until January
2010. He was then assigned to field service at a customer’s assembly plant and returned to work 10
at the Royal Oak facility in November 2010. While he was working at Royal Oak in February
and March 2011, he used personal days under the WAEA contract. (GC Exh. 46.) Brooks further
testified that he went on medical leave on October 27, 2011, and when he returned to work on
January 13, 2012, he was assigned to the Novi facility. When he reported to Novi, consistent
with the WAEA contract, he was not given a drug test. The terms of NIEA contract applicable to 15
the Novi facility, which had expired by its terms on April 3, 2011 (Jt. Exh. 1) contained a
provision that employees were to undergo a drug screen after returning from an absence of more
than 30 days. ( Jt. Exh. 1, art. 37.09)
The record establishes that the Respondent applied certain practices with respect to the 20
assignment of overtime and selection of employees for layoff at its various plants in the Detroit
area prior to January 2012, when its employees were not working at their home plant.
When overtime was assigned, employees of the home plant were given the opportunity
first, then the Respondent's employees who were represented by one of the other unions would 25
be assigned overtime. Finally, contractors would be given an opportunity for overtime. (Tr. 120,
272, 394-395.)
Layoffs were conducted on the basis of classifications since there is a sequential order in
the manner in which the equipment manufactured by the Respondent is built. Machine builders 30
start the process of building the equipment, pipefitters then begin their work and finally
electricians wire the equipment. Because of the nature of the production process, when
employees are laid off, they are laid off within a classification, by seniority. Machine builders
would be the first classification to be laid off, followed by pipefitters and finally electricians. The
first individuals to be laid off within each classification would be contractors. Then, employees 35
of the Respondent, who were not working at their home plant, would be laid off by classification
according to the seniority list of their home plant. The last employees to be laid off would be the
employees working at their home plant. (Tr. 80, 125, 164-168.) In situations where, in addition
to employees of the home plant, employees represented by both of the Respondent’s other unions
were working at that plant, the general practice was to lay off employees represented by the two40
other unions proportionally in an equitable fashion, before laying off the employees of the home
plant. (Tr. 154-156.)
LaForest testified that in 2008 at the Novi facility he and other employees represented by
the WAEA were working along with employees of the Southfield facility represented by the 45
CEA and Novi employees represented by the NIEA. On this occasion, the Respondent laid off
the WAEA represented employees and retained the CEA represented employees. LaForest raised
JD–68–12
6
the issue personally with the then human resources director, Fred Begle and the director of
manufacturing, Ron Kyslinger. LaForest indicated to both individuals that in this situation the
practice had been to lay off visiting employees represented by the two other unions in an
equitable, proportionate manner. Begle told LaForest he would take care of the matter but later
advised him that Kyslinger had overruled him. In this instance, the WAEA represented 5
employees were laid off prior to the CEA represented employees. (Tr. 158-162.)4
The December 2011 Temporary Shutdown of the Wisne (Comau) Automation Facility
On December 1, 2011, the Respondent's director of manufacturing, Marco Andriano, sent 10
an email to LaForest (GC Exh. 25) indicating, in relevant part, that “due to business issues" and a
delay on a Chrysler project the Respondent would be forced to temporarily shut down the Comau
(Wisne) Auto facility. The email further indicated that the ongoing work would be moved to
different facilities, specifically referring to Novi, Autotech,5 and Royal Oak. The email
concluded that all of the Comau Auto personnel would be relocated pursuant to the direction of 15
Tom Durocher, the then Novi Industries plant manager.
At the time of the notification of the temporary closing, there were approximately 12
employees at the Wisne facility working on automated robotic equipment called aircraft gantries.
The remainder of the approximately 44 employees represented by the WAEA were working at 20
other Respondent facilities, were on field service assignments or were on medical leave.
The email from Andriano was the first notification the WAEA had received from the
Respondent regarding the temporary closure of the Wisne facility. After receiving the email,
LaForest contacted Cormier and requested a meeting to discuss the closure. Coemier agreed to 25
schedule a meeting. On approximately December 3, a meeting was held between the WAEA and
the Respondent. Present for the WAEA were LaForest, Ciaramitaro, Vargo and recording
secretary, Gordie Gault. Present for the Respondent were Durocher and Corich. When LaForest
asked how the decision came about to temporary close the Wisne facility, Durocher said that on
the evening of November 30, “the Italians” made a decision to close the Wisne facility and 30
relocate the existing work to Novi Industries.6 When Laforest asked why that decision was made,
the Durocher responded “it's just the way it was.” (Tr. 187). Durocher indicated that Ciaramitaro
was going to be assigned to Royal Oak while LaForest would be assigned to Novi. When
LaForest pointed out that he lived closer to Royal Oak and that Ciaramitaro lived closer to Novi,
Durocher indicated they would be assigned to the facilities closer to their home. There were no 35
other discussions regarding the effects of the closure at this meeting.

4 Although LaForest protested the matter, the WAEA did not file a grievance over this issue.
However, as counsel for the Acting General Counsel note in their brief, both the 2008-2011 contract and
the current contract between the Respondent and the WAEA contain a clause which indicates that a
waiver of rights “in one case does not establish a precedent of waiving the same rights in the future.” ( Jt.
Exh. 5, sect. 6.04; Jt. Exh. 6, art. 10.)
5 The Autotech facility is located on the Novi campus and covered by the Novi collective-bargaining
agreement.
6 None of the individuals who participated in the decision to temporarily close the Wisne facility
testified at the hearing.
JD–68–12
7
The Respondent assigned 10 of the employees to Novi Industries while two pipefitters
were assigned to the Royal Oak facility. The employees began to report those facilities on
Monday, December 5, 2011. Shipping employee Ronnie Deline, who was responsible for
packing and shipping the equipment, was the last employee to leave the Wisne facility on
December 15, 2011. The equipment from the Wisne facility that was used in assembling the 5
aircraft gantry was moved to Royal Oak.
On June 5, 2012, the Respondent reopened the Wisne facility and all WAEA represented
employees who were working at other facilities of the Respondent were transferred back to that
facility. 10
Statements Made by Supervisors Regarding the Novi Contract
Vargo testified he was assigned to work at the Novi facility after the temporary closure of
the Wisne facility. According to Vargo’s uncontroverted testimony, in December 2011, while he 15
was working at Novi, Durocher stopped him on the shop floor and told Vargo that his name had
been brought up and that Durocher had heard that he was influencing the Novi employees about
changing their vote on their contract. Vargo replied that was not true. Durocher told Vargo that
he did not want him to interfere with the Novi employees’ vote on their contract.7
20
According to the credible, uncontroverted testimony of LaForest and Ciaramitaro, in late
December 2011, they attended a meeting with Andriano and other management and union
officials at the Respondent's Southfield facility. After the meeting, Andriano asked LaForest and
Ciaramitaro to step into an office to speak with him. An individual from the human resources
department was present, but neither Laforest nor Ciaramitaro could recall that individual's name. 25
Andriano told Laforest and Ciaramitaro that he had heard that WAEA represented employees at
Novi were talking to the Novi employees about the Novi contract that was being negotiated.
Andriano said that he wanted Laforest and Ciaramitaro to tell their “guys” at Novi not to talk
about the contract. Andriano said he should not say this in front of human resources, but if
LaForest and Ciaramitaro did not speak to their members about this, he would shut their plant 30
down permanently. LaForest and Ciaramitaro said they would speak to their members about not
talking about the Novi contract negotiations.8

7 At the time of this conversation the Novi employees, who are represented by the NIEA, were
considering whether to ratify a new collective-bargaining agreement at their facility. Vargo testified that
Novi employees asked him what was in the WAEA contract and some employees told Vargo that they did
not like the new contract and were not going to vote for it. Vargo testified that he agreed with those
employees who did not think the new NIEA contract was a good one.
8 There is no complaint allegation regarding statements made by Andriano. At the trial, counsel for
the Acting General Counsel indicated that it was being admitted as background to the complaint
allegation regarding Durocher’s statement to Vargo that is recited above. I indicated that I would consider
this evidence for that purpose but would not consider the evidence as a violation of the Act unless an
amendment to the complaint was made at the hearing. No such complaint amendment was made. While
the statements made by Andriano were not contained in the affidavits that LaForest and Ciaramitaro gave
during the investigation of this case, I found their trial testimony regarding this event to be credible. Their
testimony was mutually corroborative and consistent and their demeanor while testifying exhibited
certainty regarding the statements made to them.
JD–68–12
8
The Application of New Novi Work Rules to WAEA Represented Employees
On January 18, 2012, the Respondent executed a new collective-bargaining agreement
with the NIEA which was effective by its terms from January 11, 2012, covering the Novi
facility. (Jt. Exh. 2.) This agreement had been ratified by the NIEA membership on 5
approximately January 11. Article 1 of the NIEA collective-bargaining agreement altered the
recognition clause by adding the following after the description of the unit covered by the
agreement:
Any other person that is employed by the Employer and is considered as a 10
regular, full-time employee at another Comau, Inc. facility will be obligated to
follow the established protocol and rules as set forth in this agreement for all
purposes while they are working within the NIEA bargaining unit. This does not
alter the following earned (paid) benefit from the employee's home bargaining
unit:15
Wages
Vacation
Healthcare benefits
Non-NIEA employees temporarily transferred into the Novi facilities will have no 20
seniority rights within the NIEA bargaining unit.
In mid-January 2012, the Respondent began to hold meetings with employees and
contractors who were working at Novi to inform them of the new rules that would be applied
there. The uncontroverted testimony of Brooks and Ciaramataro establishes that in one such 25
meeting held at Novi in the maintenance department in mid-January 2012, there were
approximately 25 employees and contractors present. Supervisors Matt Parsons and Mark Corich
were present but Parsons did most of the talking during the meeting. Parsons stated that the
NIEA had settled its contract. He also stated that there was a new set of rules for the Novi facility
and that everybody who was working at the facility would have to abide by those rules. He 30
specifically stated that the attendance policies would be changed and that personal days and sick
days were no longer valid as they were “negotiated items” and not a “company benefit.” Parsons
also stated that the WAEA contract was void at Novi.
On January 17, 2012, after the meetings with employees on the shop floor were held at 35
Novi, LaForest, Vargo, Ciaramitaro and Gault met with McKee, Cormier and Durocher to
discuss what employees had been told about the application of new rules at Novi.9 McKee
indicated that the Novi employees had ratified their contract and that management wanted to be
clear about how the new rules would apply to employees while they working at Novi. LaForest
said he wanted something in writing and did not see how management could go out and tell the 40
WAEA represented employees about these rules at this point. Cormier indicated that the contract
was not yet signed and that until it was signed she could not finalize any of the other documents
that went with it.

9 Vargo recorded the meeting. A CD recording of the meeting was introduced into the record as GC
Exh. 22 and a transcript of the recording was introduced as GC Exh. 43.
JD–68–12
9
Durocher stated that because the NIEA was the bargaining agent at Novi, he owed “due
diligence” to the NIEA first and that he owed the WAEA nothing relative to the validity of that
contract. He stated that “you didn't vote on the contract because you are not part of this union.”
He added that “if you like this, you can become part of the Novi union.” (GC Exh. 43, p. 6.)
5
Durocher indicated that the Respondent had agreed that the WAEA, the NIEA, and the
CEA employees have the “ability to exercise companywide seniority relative to displacing non-
Comau employees also known as contractors.” He indicated, however “you do not have the right
to come to the new plant and say, by the way, my rulebook is what I'm working to.” Durocher
then stated that “if you can’t live by these rules, you might want to just say I'll stay on layoff or 10
I’ll wait for different opportunity to come my way. That's the deal, okay.” (GC Exh. 43, pps. 9-
10.)
Durocher told theWAEA representatives that “Your contract has nothing to do with this
plant.” Durocher indicated that earned benefits such as seniority, vacation health insurance, and 15
life insurance go with employees wherever they went within the company but that rules do not,
as rules are plant specific. He reiterated that “the rules in the Novi facility apply to everybody
that works in here. Attendance which seems to be the sticking point, is a rule.” (GC Exh. 43,
p.11.)
20
Durocher also told the WAEA representatives that “when it comes to seniority you have
no seniority rights within [the Novi] facility.” He stated that WAEA employees had no right to
claim overtime over a contractor as “there are no seniority rights beyond the NIEA.” When
Vargo asked how long the WAEA employees would be working at Novi, Durocher said that he
had no idea and then stated “you guys have the right to do voluntary layoffs in your language.”25
Cormier agreed that was the case.
When LaForest asked Durocher if he could find out if the Respondent could get rid of the
contractors, Durocher stated he could not answer that. Durocher then stated “you guys don't want
to come in, take a voluntary layoff, here's the deal, you displaced the contractor I had in here 30
making money for us. That's okay you're making money for us. But understand something; the
Company does not need permission from you guys to do our job.” He added “I'm just saying
there’s openings in Alabama, too. Would like me to transfer you there and give you two weeks to
report down there, and if you don't show up it’s a voluntary quit? Because we checked we can do
that, too. You don’t get to pick where your transfer goes, you go where the opening is or you say 35
I don't want to do it, I'll stay on layoff. So-happy if we can explore that opportunity, too. We’re
asking you people to work with us. But you know what-I have-no problems with outside
contractors or Novi people in all of these discussions. The only problems come from your guys’
union because of the personal days. And there is no way I’m going to do that.” (GC Exh. 43, p.
29.) Near the end of the meeting Durocher stated that the rules would take effect on the coming 40
Monday (January 23) and indicated that the Respondent would not give copies of the rules to
theWAEA before they were given to the NIEA.
On January 20, 2012, the WAEA filed a grievance (GC Exh. 36) claiming that by
applying the Novi rules to employees it represented the Respondent was violating article 1, the 45
recognition clause of its current collective-bargaining agreement. The WAEA sought as a
remedy that the Respondent honor its contract in its entirety no matter what facility employees
JD–68–12
10
were working in.10 On the same date, the WAEA filed a grievance over the temporary closure of
the Comau Auto (Wisne) facility. As a remedy the WAEA sought the reopening of the facility
On Monday, January 23, 2012, the Respondent’s supervisors began to distribute to
employees and contractors working at the Novi facility a document entitled "Comau Novi 5
Campus Policies and Rules" (Novi rules). The Novi rules were not given to the WAEA prior to
their implementation. The Novi rules indicate that they applied to all employees who are
temporarily working at the Novi campus. (Jt. Exh. 3.) The rules specifically state:
When temporarily working at the Novi campus, all such employees must comply 10
with the rules and policies as set forth in this document and can be disciplined or
terminated for failing to do so. This does not alter the following paid benefits granted to
non-NIEA bargaining unit members under their home bargaining unit collective
bargaining agreement who may be temporarily working at the Novi campus:
15
Wages
Vacation
Paid Holidays /Bonus Days
Healthcare, life, and disability insurance benefits
Retirement benefits20
Non-NIEA bargaining unit members temporarily working at the Novi Campus
will have no seniority rights at the Novi Campus, including for purposes of
overtime or shift preferences.
25
The Novi rules make a number of changes in terms and conditions of employment set
forth in the WAEA collective-bargaining agreement. The Novi rules eliminate the “50-hour rule”
contained in art. 25, par. 8 of the WAEA collective-bargaining agreement which indicates that
when the work schedule for the week is 55 hours or more, an employee is required to work at
least 50 hours in that week. That section of the WAEA collective-bargaining agreement further 30
provides that there are other required numbers of hours an employee must work for weekly
schedules under 55 hours. The Novi rules also eliminate the provision contained in art. 25, par. 8
of the WAEA contract which indicates that an employee will be subject to discipline if the
employee fails to meet the minimum hours more than 1 week of the month. The parties
commonly referred to this provision as the “bad week” rule. In this connection, the Novi rules 35
explicitly state that no "bad weeks" are permitted while working at Novi and that there is no “50
hour” rule. The rule states that at Novi employees may be required to work up to a maximum of
58 hours a week.
With regard to personal days, the Novi rules grant one “personal absence day” per month 40
and no credit is given for taking such a day for purposes of calculating the numbers of hours of
work regarding overtime pay. The WAEA contract provides that employees can take one
“period” of unpaid personal time a month not to exceed two consecutive days and that
employees are given credit toward attendance when they use personal time. (Jt. Exh. 6, arts. 6.02

10 The 2011-2015 contract between the Respondent and the WAEA does not contain an arbitration
clause although it does contain a no-strike provision.
JD–68–12
11
and 6.04). In addition, personal time counts as time worked for calculating when an employee
begins receiving overtime pay for the week. (Jt. Exh. 6, art.12.02.)
The WAEA contract provides that employees are allowed 5 instances of tardiness a
month before discipline would be imposed. (Jt. Exh. 6, art. 25, paragraph 3.) The Novi rules 5
provide that employees could use three “flextime opportunities” per calendar month. In addition,
the Novi rules have no provision for sick time while the WAEA contract provides that
employees can use 6 sick days per calendar year and those days apply toward attendance and
overtime calculations. (Jt. Exh.6, arts. 6.03 and 6.04.)
10
The Novi rules specifically indicate that “Employees temporary working at the Novi
campus will have no overtime priority rights.” The Novi rules also require that employees may
be required to work up to a maximum of 50 hours per week and that “employees must work all
scheduled hours” unless the employee receives preapproved time off as defined in the Novi
rules. The WAEA contract provides that the Respondent”"will not insist” on employees working 15
overtime.
The Novi rules increase the penalty for “disregard of safety rules or common safety
practices” from the 3 points in the referred to in the WAEA contract (Jt. Exh. 6, art. 25, par. 13 to
“suspension (one-week maximum), up to & including discharge, 3 points.” (Jt. Exh. 3, p. 3, par.20
11.)
The Novi rules impose a drug testing policy which provides, in relevant part, that:
Employees temporary working at the Novi Campus may be drug screened on the 25
following conditions: (1) upon returning from a leave of absence or layoff of
thirty (30) days or more, (2) upon being injured, at management
discretion, depending on the severity and cause of injury, (3) following an
accident or incident while on Comau paid time, while on the Novi campus, or
while operating Comau equipment, regardless of injury, or (4) due to 30
reasonable cause based on observed behavior or other factual
circumstances.
Employees temporarily working at the Novi Campus who test positive for any
non-prescription drug will be subject to immediate discharge. Employees 35
temporarily working at the Novi campus who refuse a drug screen request will be
subject to immediate discharge. If Comau management determines that
suspension, rather than discharge, is appropriate, then the suspended employee
will be required to successfully complete an EAP program and will be tested
randomly for a period of one year.40
The WAEA contract provides only for testing for alcohol (Jt. Exh. 6, art. 25, par.16.)
The Novi shop rules increase the penalty for “threatening, intimidating, coercing or
inappropriately disrupting the work of employees or supervision at any time” from 3 points in 45
the WAEA contract (Jt. Exh. 6, art. 25, par. 23) to “suspension (one-week maximum), up to and
including discharge, 3 points.”
JD–68–12
12
Finally, the Novi rules change the progression of discipline for a violation. The Novi
rules state that, in a 12 month rolling period, 3 points constitute a warning, 6 points will result in
a 1-day unpaid suspension, 9 points will result in a 3-day unpaid suspension, and 12 points will
result in termination. The Novi rules also state that if an employee is on a disciplinary suspension
on a Friday, the employee is ineligible for overtime work that weekend, and if the employee is 5
on a disciplinary suspension the day before or after a paid holiday, the employee will forfeit
his/her holiday pay. The WAEA contract states only that a total of 12 points during a rolling
calendar year will result in termination. (Jt. Exh. 6, art. 25.)
On January 26 and February 7 the parties discussed the grievance the WAEA had filed 10
regarding the Respondent’s failure to apply the provisions of its agreement at Novi after the
announcement of the Novi rules. As a result of these discussions, the Respondent made
modifications to the Novi rules an effort to address the WAEA's concerns. These modifications
were set forth in the Respondent's written response to the grievance dated February 20, 2012
(GC Exh. 36, p. 2; R. Exh. 8). The response indicated, in relevant part, that:15
First, the Company agreed that the first violation of the attendance provisions of
the Novi Campus policies and rules by a "guest" employee that occurs on or
before March 31, 2012 will result in one disciplinary warning with no points. Any
subsequent violations of the attendance provisions by that previously warned 20
"guest" employee, or any first violation of the attendance provisions that occurs
on or after April 1, 2012, will not receive a warning, but will instead result in the
appropriate disciplinary points being assigned according to the Novi Campus
Policies and Rules.
25
Second, in response to the WAEA Committee questions regarding how "guest"
employees would cover legitimate back-to-sick days, the Company agreed to the
following approach. The "guest" employee should use his/her personal absence
date to cover the first sick day period. If during that personal absence day, the
"guest employee" does not believe he/she will be able to come to work the 30
following day due to legitimate sickness, the "guest" employee can call his/her
supervisor (by no later than 2: 00 on the first day) to request a vacation day for the
following day.
The Respondent indicated that this response resolved the grievance and closed it.35
On February 20, 2012, the Respondent also responded to the WAEA grievance regarding
the temporary closure of the Comau Auto (Wisne) facility by stating that it was done for
legitimate business reasons and its right to do so is recognized in the management rights
provision of the parties collective-bargaining agreement. (R. Exh. 8.) Accordingly, the 40
Respondent denied the grievance.
On February 6, 2012, the WAEA filed a grievance regarding a warning given to
employee Hermon Gray for a violation of one of the new Novi attendance rules. The grievance
stated that Gray had not been given the Novi rules and sought as a remedy that the warning be 45
removed from his file along with any points that accompanied the warning. On February 7, 2012,
the Respondent indicated that because of its agreement to give WAEA bargaining unit
JD–68–12
13
employees a written warning (with no points) for the first violation of the Novi rules occurring
before March 31, 2012, it removed the points from the warning given to Gray. (R. Exh. 9.)
On February 13, 2012, the WAEA filed another grievance claiming a lack of any kind of
preferential treatment to its members regarding the assignment of overtime. The WAEA sought 5
as a remedy that any and all scheduled overtime should be offered to a WAEA member or other
regular Comau employee before it was offered to any contractor (GC Exh. 37).
With respect to the grievance filed by the WAEA on February 13, 2012, regarding the
assignment of overtime on March 26 and April 2, 2012 McKee sent emails to LaForest asking if 10
there was any specific instances where the WAEA believed that employees did not receive
overtime when they were entitled to it so that McKee could investigate the specifics. (R. Ex. 10.)
The record contains no response from the WAEA to this request.
The record indicates that in addition to Gray, other employees received warnings for 15
violating the attendance policy under the new Novi rules. These employees included
Ciaramitaro, Rodney Mitchell, Csaba Lastoczi, and Don Hautau. (GC Exhs. 7, 9-13, 17, and 18.)
The Implementation of the Royal Oak Rules
20
According to McKee's uncontradicted testimony, on December 6, 2011, he attended a
meeting between representatives of the Respondent and representatives of the CEA, the NIEA,
and the WAEA. LaForest and Ciaramitaro attended for the WAEA. At this meeting the
Respondent informed the unions that a decision had been made to make Royal Oak a permanent
facility. The Respondent indicated that it would be moving its Powertrain operations to that 25
facility. The unions were also informed that the Respondent intended to hire a permanent roster
of employees at that facility. The Respondent indicated it would be posting job opportunities
and that all employees were welcome to apply. The unions were also informed that in connection
with making the facility a permanent facility, the Respondent would be adopting rules for the
employees assigned there that would apply to everyone working at the facility. (Tr. 401-402.)30
On December 15, 2011, the Respondent issued an announcement indicating that Royal
Oak would be a permanent facility. The announcement indicated in part “we will be hiring a
number of new employees in various trades to be permanently assigned to the facility. Job
openings will be posted for opportunities at the Royal Oak Plant.”35
In February 2012, the Respondent supervisors distributed to employees who were
working at the Royal Oak Plant, including WEAE represented employees, a document entitled
“Comau Royal Oak Facility Policies and Rules Guidelines.” (Jt. Exh. 4.) The WAEA was not
given a copy of the rules before they were distributed to employees.40
The Royal Oak rules altered provisions of the WAEA contract for WAEA represented
employees who were working at Royal Oak. In this connection, the Royal Oak rules indicate “all
employees are required to work the entire schedule was posted by Royal Oak management” and
further indicate that the failure to do so would subject an employee to discipline, unless the 45
employee had received prior written approval. Consequently, there is no allowance in the Royal
JD–68–12
14
Oak rules for the application of the provisions in the WAEA contract regarding the “50 hour
rule” or “bad week” rule.
The Royal Oak rules provide only for vacation days as “permitted time off.” There is no
reference to personal days or sick leave. The WAEA contract provides for personal days and sick 5
leave as well as applying those types of leave toward attendance credit and overtime
calculations. (Jt. Exh. 6, arts. 6.02, 6.03, 6.04, and 12.02.) The Royal Oak rules provide that
employees can only take vacation days in full-day increments while the WAEA contract
provides that employees can take a half day of vacation. (Jt. Exh. 6, art. 13.05.)
10
The Royal Oak rules state that “no employee has overtime priority rights within the
Royal Oak facility” and that management has the sole discretion to determine the allocation of
overtime. Accordingly, the rules do not accord any priority to employees of the Respondent over
contractors in the assignment of overtime. The Royal Oak rules establish that overtime scheduled
is mandatory and that failure to work scheduled overtime hours will subject an employee to 15
discipline. The WAEA contract provides that the Respondent “will not insist” on employees
working overtime. (Jt. Exh. 6.06.) The Royal Oak rules also do not permit employees to work
weekend overtime if they schedule a vacation day on the preceding Friday or following Monday,
while there is no similar restriction in the WAEA contract.
20
The Royal Oak rules permit drug and alcohol testing “at the discretion of management.”
As noted above, the WAEA contract does not provide for drug testing.
The Royal Oak rules contain a list of rules, similar to the shop rules found in art. 25 of
the WAEA contract. However, the Royal Oak rules do not contain a point system that refers to a 25
progressive disciplinary procedure. The Royal Oak rules state that employees who fail to comply
with the rules will be subject to discipline up to and including discharge in the discretion of
management.
The Practice of Allowing WAEA Representatives to Conduct Union Business 30
During Working Time
The record establishes that the Respondent’s established practice is to permit WAEA
employee representatives time off to conduct union business with the permission of the
employee’s supervisor. In February 2012, Ciaramitaro was working at Novi when he asked his 35
supervisor, Mark Corich, for permission to take time off in order to prepare grievances. Corich
gave Ciaramitaro permission to do so and Ciaramitaro left to prepare grievances. When
Ciaramitaro returned to his work station, Corich told him that he was not going to be able to take
time off for union business in the future as Durocher told him that WAEA did not exist anymore
and it could not do business. Corich gave Ciaramitaro a note that Corich had signed which 40
indicated:
Quote from Tom Durocher Feb. 12, 2012
JD–68–12
15
I closed Comau Auto so there isn’t any union (CAE).11 So how can Paul go on
union business.
Ciaramitaro testified that Corich later approached him and told him that if he needed to
leave to perform union business during working time he had to go through another supervisor 5
and could not talk to Corich about it anymore. After that Ciaramitaro would seek permission to
conduct Union business from supervisor Richard Thompson. According to Ciaramitaro he was
never denied permission to conduct union business when he asked to do so. Laforest also
testified that he was never denied the opportunity to conduct union business when he requested
to do so after February 2012.10
Analysis
Whether the Respondent Violated Section 8(a)(5) and (1) of the Act by Failing to Bargain Over
the Effects of the Temporary Closure of the Wisne Facility15
The Acting General Counsel contends that the Respondent had an obligation to bargain
over the effects of the temporary closure of the Wisne facility and the transfer of employees and
relocation of unit work to other facilities. In support of his position, the Acting General Counsel
relies on, inter alia, First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981);20
Metropolitan Telectronics Corp., 279 NLRB 957 (1986); and Dodge of Napierville, Inc. 357
NLRB No. 183 (2012). The Acting General Counsel further contends that the WAEA was not
given notice and an opportunity to bargain over this issue but rather was presented with a fait
accompli. Accordingly, the Acting General Counsel contends that the Respondent violated
Section 8(a)(5) and (1) of the Act.25
The Respondent argues that the temporary closure and transfer of employees was routine
in nature and did not require bargaining with the Union. The Respondent further contends that if
I find that it violated the Act by acting unilaterally regarding this issue, it would not be
appropriate to grant an affirmative bargaining order or any backpay as all the affected employees 30
continue to be employed with the same contractual benefits that they had been receiving while
employed at the Wisne facility. In support of its position regarding the remedy, the Respondent
relies on AG Communications Systems Corp., 350 NLRB 168, 172-174 (2007).
I find that the Respondent had a duty to give notice and an opportunity to bargain to the 35
WAEA regarding the effects of its decision to temporarily close the Wisne facility, including the
transfer of employees who were working at that facility to its Royal Oak and Novi facilities and
that its failure to do so violates Section 8(a)(5) and (1) of the Act. In reaching this conclusion I
have carefully considered the fact that the Respondent's closure of the Wisne facility was
temporary and not a permanent closure. Unlike the situations in First National Maintenance, 40
supra, where the partial closure of the employer's operations caused the termination of all of the
affected employees and Metropolitan Telectronics, where the employer's relocation of its
operations resulted in the termination of almost all of the unit employees, the temporary closing
of the Wisne facility did not result in any loss of jobs to employees. Rather, the 12 WAEA

11 Ciaramitaro testified that the reference to CAE meant “Comau Auto employees” as that was the
shorthand reference that Comau Automation (Wisne) employees put on their daily time reports.
JD–68–12
16
represented employees who were working at Wisne at the time of its temporary closure were
transferred to the Respondent’s Royal Oak and Novi facilities and their wage rates and benefits
remained the same. Thus, I do not find First National Maintenance and Metropolitan
Telectronics to be precisely applicable to the instant situation.
5
The Board had occasion to determine whether an employer's failure to bargain over brief
1-day plant closures violated Section 8(a)(5) and (1) of the Act in General Die Casters, Inc., 359
NLRB No.7. slip op. p.1 fn.1 and pps, 16-18 (2012). There, the employer shut down its plants for
1 day without giving the union notice and an opportunity to bargain over the temporary closure.
The affected employees were given the option of taking a vacation day or a day off without pay.10
The Board found that the closure of the plants which resulted in either a loss of a paid vacation
day or an unpaid day off had a “material, substantial and significant” effect on conditions of
employment and was therefore a mandatory subject of bargaining. In the instant case, the
employees affected by the temporary closure of the Wisne facility did not lose any pay or
benefits but rather were transferred to other facilities. In Naperville Jeep/Dodge, 357 NLRB No. 15
183, slip op. pps. 2-3 (2012) the Board noted “The obligation to bargain over the effects of the
closing of the Naperville facility entailed an obligation to bargain over the transfer of employees
to the Lisle facility, including their initial wages, benefits, seniority rights, and working
conditions at the new location, including whether they would have continued to work together as
a distinct group . . . ” While Naperville is factually different from the instant case in that there the 20
closure of the employer’s Naperville facility resulted in the transfer of the affected employees to
a nonunion facility and consequently involved the loss of wages and benefits, I believe the
principle of law stated above regarding the obligation to bargain about the transfer of employees
is appropriate to apply in the instant case.
25
In the instant case, while the employees continued to be represented by the WAEA and
did not lose wages or benefits, obviously there was a change in working conditions as they were
assigned to different facilities and did not continue to work together as a distinct group. I find
that the changes in working conditions were sufficiently material, substantial and significant so
as to constitute a mandatory subject of bargaining. While not dispositive of the issue I note that 30
in 2009, when the Respondent temporarily closed the Wisne plant and transferred the employees
working there to the Novi facility, it bargained with the WAEA regarding the effects of the
temporary closure, including the relocation of unit work and the transfer of employees. In this
connection, the Respondent executed a letter of understanding with both the WAEA and the
NIEA, which represented the employees at Novi. As noted above, this letter of understanding 35
indicated that both unions would maintain their respective union committees, team leaders and
seniority. Under the terms of this agreement, WAEA represented employees worked on specific
projects in a specific bay located at the Novi facility. During this period, all the provisions of the
WAEA agreement were applied to the employees temporarily assigned to Novi. In addition, the
current collective bargaining-agreement between the Respondent and the WAEA effective from 40
August 22, 2011, to May 3, 2015 (Jt. Exh. 6, art. 4.18) specifically indicates “should the
Company make a business decision to close a plant or to consolidate plants, the Company will
bargain with the Union regarding the effects of the business decision.” This contract provision
does not exclude by its terms temporary closings.
45
I also note that when representatives of the WAEA and the Respondent met on
December 3, and LaForest was told that he was being assigned to Novi and that Ciaramitaro was
JD–68–12
17
informed that he was being assigned to Royal Oak, LaForest indicated that he lived closer to
Royal Oak and that Ciaramitaro lived closer to Novi. Upon being apprised of that fact, the
Respondent switched their assignments. I note this is a practical example of the issues that can be
discussed during effects bargaining. The Respondent's unilateral implementation of the closing
and the transfer of employee, however, greatly limited the Union's ability to engage in 5
bargaining over the issues presented by the transfer of employees and relocation of unit work.
As noted above, the Respondent began to move the equipment out of the Wisne facility
on December 1, 2011, the same day that the Respondent sent the email to the WAEA advising it
of the temporary closure and the transfer of the employees. Under these conditions the Union 10
was presented with a fait accompli and the discussions between the WAEA and the Respondent
on December 3 did not fulfill the Respondent's bargaining obligation. The Board has held that
“to be timely, the notice must be given sufficiently in advance of actual implementation of the
change to allow a reasonable opportunity to bargain.” UAW-Daimler-Chrysler National Training
Center, 341 NLRB 431, 433 (2004); Ciba-Ceigy Pharmaceuticals Division, 264 NLRB 1013, 15
1017 (1982). Accordingly, I find that the Respondent violated Section 8(a)(5) and (1) of the Act
by failing to give notice and an opportunity to bargain to the WAEA prior to temporarily closing
the Wisne facility and transferring the employees who were working there.
As a remedy for this labor practice I will, of course, order that the Respondent cease-and-20
desist from such unlawful conduct and post an appropriate notice. In agreement with the
Respondent, however, I find that no useful purpose would be served by an affirmative bargaining
order and backpay remedy for this violation. The Board noted in AG Communication Systems
Corp., 350 NLRB 168, 173 (2007) that a limited bargaining order and backpay remedy is not
awarded in every effects bargaining case but rather the Board may consider any particular or 25
unusual circumstances of the case in fashioning a remedy. In AG Communications Systems, the
employer failed to give notice and bargain over the effects of integrating the AG telephone
equipment installer unit into the Lucent telephone equipment installer unit. The Board found that
the employer violated Section 8(a)(5) and (1) but concluded that an affirmative bargaining order
and backpay remedy was not appropriate under the circumstances. The Board noted that the 30
former AG installers continued to be employed by the Respondent with full pay and benefits and
also continued to be represented by a union, albeit by a CWA local rather than an IBEW local. In
the instant case, as noted above, the WAEA represented employees who were working at the
Wisne facility at the time of its temporary closure were transferred to the Respondent's Novi and
Royal Oak facilities. They continued to receive the pay and benefits provided for in the WAEA 35
collective-bargaining agreement and continued to be represented by the WAEA. As noted above,
in June 2012 the Wisne facility was reopened and, at the time of the hearing, all of the WAEA
represented employees were working at that facility. Under the circumstances, I find that the
remedy for the effects bargaining violation that the Board applied in AG Communications
Systems is the appropriate remedy to apply in the instant case.40
Whether the Respondent Violated Section 8(a)(5) and (1) by Failing to Bargain With the WAEA
Regarding the Application of the Novi and Royal Oak Rules to WAEA Represented Employees
The Acting General Counsel contends that there is a historical practice of applying the 45
provisions of the contract between the Respondent and the WAEA to WAEA represented
employees when they are temporarily transferred from the Wisne facility to other Respondent
JD–68–12
18
facilities. The Acting General Counsel asserts that the Respondent violated Section 8(a)(5) and
(1) by applying the new rules implemented at its Novi and Royal Oak facilities to employees
represented by the WAEA without bargaining with the WAEA.
The Respondent contends that its contract with the WAEA contains a management-rights 5
clause (Jt. Exh. 6 art. 11) which gives it the right to make reasonable rules regarding discipline
unless expressly abridged by specific provisions of the contract. While the Respondent concedes
that the shop rules contained in art. 25 of its contract with the WAEA restricts its right to
unilaterally make rules at the Wisne facility, it contends that these rules do not apply at its other
facilities. In this regard, the Respondent contends that art. 25.02, subsection (e), rule 36 provides 10
that there may be other “Company policies or Procedures or other rules not specifically stated.”
The Respondent contends that this language applies to its right to make rules at other facilities
for the WAEA represented employees. The Respondent also contends that the Acting General
Counsel has not produced sufficient evidence to prove that there has been an established practice
of applying the shop rules in the WAEA contract to WAEA represented employees when they 15
working outside of the Wisne facility. Thus, the Respondent contends that it had no obligation to
bargain with the WAEA about the application of the Novi and Royal Oak rules to WAEA
represented employees.
In the first instance, I do not agree with the Respondent that the language of the 20
management-rights clause and the provisions of art.25, rule 36 contained in its agreement with
the WAEA privileges its right to unilaterally establish rules and policies affecting the conditions
of employment of WAEA represented employees when they are temporarily assigned to the
Respondent's other facilities.
25
In Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983) the Court expressly affirmed
the Board's long-standing policy that a waiver of a statutory right must be clear and
unmistakable. The Board reaffirmed its adherence to that standard in Provena St. Joseph Medical
Center, 350 NLRB 808 (2007). It is clear that the Novi and Royal Oak rules involve terms and
conditions of employment that constitute mandatory subjects of bargaining. In this regard, the 30
Board has specifically found the following subjects contained in those rules to be mandatory
subjects of bargaining: work rules involving the imposition of discipline, United Cerebral Palsy
of New York City, 347 NLRB 603, 607 (2006) and Toledo Blade Co., 343 NLRB 385 (2004);
changes in the assignment of overtime, Dearborn Country Club, 298 NLRB 915 (1990);
absenteeism and tardiness policies, Dynatron/Bondo Corp., 324 NLRB 572 (1997); drug testing 35
policies, Allied Aviation Fueling of Dallas, 347 NLRB 248 fn. 2 (2006); and layoffs General Die
Casters, Inc., supra.
In Provena St. Joseph Medical Center, supra, at 811the Board indicated that the clear and
unmistakable waiver standard “requires bargaining partners to unequivocally and specifically 40
express their mutual intent to permit unilateral employer action with respect to a particular
employment term, notwithstanding the statutory duty to bargain that would otherwise apply.”
The contract language the Respondent relies on does not specifically exclude the
application of the WAEA agreement or established extracontractual practices to WAEA 45
represented employees when they are temporarily working outside of the Wisne facility. In
addition, there is no evidence that the WAEA intentionally waived its right to bargain over
JD–68–12
19
mandatory subjects of bargaining applying to WAEA represent employees when they were
working on temporary assignment at other Respondent facilities during its 2011 negotiations
with the Respondent. Thus, there is neither an explicit contractual disclaimer nor clear evidence
of an intentional waiver during bargaining of the WAEA’s right to bargain over mandatory
subjects of bargaining applying to WAEA represented employees when they working 5
temporarily outside of the Wisne facility. Accordingly, the current contract between the
Respondent and the WAEA does not privilege the Respondent to act unilaterally regarding the
mandatory subjects of bargaining contained in the Novi and Royal Oak rules.
The next issue to consider is whether there was a clear practice of applying the terms of 10
the WAEA and extracontractual conditions of employment such as the assignment of overtime
and the order of layoffs when the WAEA employees were temporarily assigned to other
Respondent facilities. As noted above, it is undisputed that provisions of the WAEA contract
regarding wages, health insurance, life and disability insurance, the 401(k) plan, classifications,
seniority and paid holidays were applied to applied to WAEA represented employees working 15
outside of the Wisne facility.
With respect to the application of the attendance policies set forth in the WAEA contract
to WAEA represented employees when there were working outside of their home plant, LaForest
was able to use personal days and vacation days as provided in the WAEA contract, while he 20
was working at Royal Oak from January through May 2010. Brooks was also able to use
personal days under the WAEA contract while working at Royal Oak in November 2010. In
addition, when Brooks was assigned to the Novi facility on January 13, 2012, after returning
from medical leave, he was not given a drug screen despite having been absent for more than 30
days. This was consistent with provisions of the WAEA contract, which provided only for 25
alcohol testing. Clearly, the provisions of the expired Novi contract were not applied to him,
since that agreement contained a provision that employees were to undergo a drug screen after
returning from an absence of more than 30 days. In addition, Brooks, LaForest and Ciaramitaro
all testified that they were never informed that the shop rules and attendance policies of the
WAEA contract were not applicable to them while they were temporarily assigned to other 30
Respondent facilities prior to January 2012.
Prior to January 2012, the Respondent had a practice with respect to the assignment of
overtime at its various plants in the Detroit area when employees were working outside of their
home plant. The first opportunity for overtime was given to the employees of the home plant. 35
Next, employees of the Respondent who were temporarily assigned to that plant would be
offered overtime. Finally, contractors who are not part of the Respondent's permanent work force
would be given an opportunity for overtime.
Prior to January 2012, the Respondent also had a practice regarding layoffs when 40
employees were temporarily assigned to a plant. Layoffs were always conducted within
classifications. The first individuals to be laid off within each classification would be contractors.
Next, employees who were not working at their home plant would be laid off by classification
according to the seniority list of their home plant. The last employees to be laid off would be the
employees working at the home plant. When employees represented by both other unions were 45
assigned to work at another of the Respondent’s home plants, visiting employees represented by
the other unions would be laid off proportionally in an equitable fashion before the employees of
JD–68–12
20
the home plant were laid off. The only exception to this practice occurred in 2008 at Novi when,
over the objection of the WAEA, the Respondent laid off WAEA represented employees before
those represented by the CEA.
Finally, as discussed above, in March 2009, when the Wisne plant was temporarily 5
closed, the Respondent, the WAEA, and the NIEA entered into a letter of understanding
providing that the WAEA and the NIEA would coexist in the Novi facility and that the WAEA
represented employees would work on a specific list of projects. During this period of time the
provisions of the WAEA contract applied to the WAEA represented employees working at Novi.
10
The Respondent has correctly noted in its brief that it is the General Counsel's burden to
prove that an activity is an established past practice. National Steel & Shipbuilding Company,
348 NLRB 320, 323 (2006). Under the circumstances of this case, I find that the Acting General
Counsel has established a past practice of applying the WAEA contract, including the shop rules
contained in art. 25 and the attendance policies, to employees represented by the WAEA when 15
such employees were working at the Respondent's facilities other than their home plant. I also
conclude that established policies regarding the assignment of overtime to WAEA represented
employees and the layoff of such employees were applied when WAEA represented employees
worked outside of their home plant.
20
In the first instance, it is undisputed that wages, benefits, classifications and the union
security provision of the WAEA contract were applied to WAEA represented employees
working outside of their home plant prior to January 2012. It is also clear that the Respondent
applied the separate "Wisne Automation Seniority List" to Wisne employees when they worked
outside of the Wisne facility. In fact, the current contract between the Respondent and the 25
WAEA requires the Respondent to apply the separate seniority roster of the WAEA to
employees it represents when they work outside of their home plant. In 2009, the Respondent
entered into a letter of understanding with the WAEA clearly establishing that the WAEA would
retain its union committee, team leaders, and seniority list while employees it represents were
working at the Novi facility during a period when the Wisne facility was temporarily closed. 30
During this period of time all of the provisions of the WAEA contract were applied to WAEA
represented employees working at the Novi facility.
There are also some specific examples of the application of the attendance policies and
shop rules contained in the WAEA contract to WAEA represented employees while they were 35
temporarily assigned to other Respondent facilities. In this connection, the Respondent permitted
LaForest to take personal days pursuant to the WAEA contract while he was employed at Royal
Oak in 2010. When Brooks returned from a medical leave lasting over 2 months on January 13,
2012, he was assigned to the Novi facility. Although the expired Novi agreement provided that
employees returning from a leave exceeding 30 days would be given a drug screen, this 40
provision was not applied to Brooks. There is no evidence that WAEA represented employees
were ever told that the shop rules contained in article 25 of the WAEA contract and the
attendance policies of that contract would not apply to them when they were working outside of
their home plant.
45
JD–68–12
21
As I have indicated above, there is also an established practice regarding the assignment
of overtime to WAEA employees and the layoff of such employees working outside of their
home plant.
In reaching the conclusion that the WAEA contract, including the shop rules and the 5
attendance policies, apply to WAEA represented employees while they were working outside of
their home plant, I rely heavily on the fact that it is undisputed that the WAEA contract generally
applied to employees while they were on temporary assignments. The record contains no
evidence of situations prior to January 2012, where different policies regarding shop rules or
attendance were applied to WAEA represented employees while they were working at any other 10
of the Respondent's facilities. This detracts from the Respondent's argument that the shop rules
and the attendance provisions of the WAEA contract did not apply to WAEA represented
employees when they were working outside of the Wisne facility. The only example of the
Respondent not applying the assignment of overtime and layoff policies set forth above
regarding WAEA represented employees working outside of their home plant occurred at the 15
Novi facility in 2008. In that situation, the Respondent laid off WAEA represented employees
working at Novi and retained CEA represented employees rather than laying off employees
represented by both unions in an equitable proportionate manner. This occurred over the
vigorous protest of theWAEA. This one example does not detract from the established practice
the Respondent employed regarding the order of layoffs at its plants when there were employees 20
temporarily assigned outside of their home plant.
Under the circumstances of this case, I find that the cases relied on by the Respondent in
support of its position that there is insufficient evidence to establish the claimed practices to be
distinguishable. In BASF Wyandotte, 278 NLRB 173 (1986) the General Counsel alleged that the 25
employer violated Section 8(a)(5) and (1) by modifying the practice of allowing two employee
union representatives to have unrestricted access to other employees and supervisors for the
purpose of grievance handling. In finding that the General Counsel had not established a
practice, the administrative law judge, whose opinion was adopted by the Board, noted that the
testimony of the two employees was vague and unresponsive regarding the specifics of meeting 30
with any supervisors while on “union time.” The administrative law judge also noted that it was
undisputed that the employer was not aware of the employees’activities while they were on
“union time,” including any discussions with supervisors. Id. at 180. In Raley’s Inc., 348 NLRB
382 (2006) the General Counsel alleged that the employer unilaterally changed a past practice of
granting unlimited access to employees by union representatives and shop stewards. The Board 35
adopted the administrative law judge’s finding that there was only minimal evidence in the
record regarding store visitations by union representatives and thus there was insufficient
evidence to establish a practice in this regard
In the instant case, as I have noted above, it is undisputed that generally the employer 40
applied the provisions of the WAEA contract to WAEA represented employees working outside
of the Wisne facility. There are also specific examples of the application of the shop rules and
attendance policies contained in that contract. In addition, the Respondent applied consistent
policies regarding the assignment of overtime and layoff regarding WAEA represented
employees when they were working at other Respondent facilities outside of their home plant.45
JD–68–12
22
It is well established that an employer violates Section 8(a)(5) and (1) of the Act by
changing wages, hours or other terms and conditions of employment of bargaining unit
employees without giving the employees' bargaining representative notice and a meaningful
opportunity to bargain about the changes. NLRB v. Katz, 369 U.S. 736, 743, (1962) United
Cerebral Palsy of New York City, 347 NLRB 603, 607 (2006). As I have indicated above, the 5
Novi and Royal Oak rules changed terms and conditions of employment which are mandatory
subjects of bargaining. The Respondent did not give meaningful notice and an opportunity to
bargain to the WAEA before implementing the Novi and Royal Oak rules. At Novi, employees
were told in mid-January 2012 that the Respondent had reached a contract with the NIEA and
that new rules would be applied to all employees who were working at Novi. On Tuesday, 10
January 17 representatives of the WAEA met with the Respondent and were orally apprised in
summary fashion of what the rules would apply to and that they would go into effect the
following Monday, January 23. When the WAEA requested a copy of the rules, the Respondent
indicated that copies were not yet available. On January 23, the Novi rules were distributed to
employees by supervisors. Under these circumstances, the WAEA was clearly presented with a 15
fait accompli. General Die Casters, Inc. supra, at slip op. p.17.
At Royal Oak on December 5, 2011, McKee informed representatives of the WAEA that
the Respondent would be making Royal Oak a permanent facility with a permanent work force.
McKee also stated that the Respondent would be adopting rules for the employees assigned there20
but did not convey any specific information regarding those rules. In February 2012, the
Respondent distributed to employees working at the Royal Oak facility the new rules without
giving a copy of the rules beforehand to the WAEA. I do not find that the McKee’s general
statements made on December 5 were sufficient to apprise WAEA of the fact that these rules
may have a substantial and material impact on the WAEA represented employees working at 25
Royal Oak. Accordingly, I find that McKee’s statements on December 5, 2011, did not constitute
sufficient notice to the WAEA of proposed changes in mandatory subjects of bargaining such
that the WAEA was obligated to request bargaining at that time. See Oklahoma Fixture Co., 314
NLRB 958, 960-961 (1994) enf. Denied, 79 F.3d 1030 (10th Cir. 1996).
30
At neither Novi nor Royal Oak were copies of the rules provided to the WAEA prior to
their distribution to employees. At the trial, McKee indicated that the Respondent did not believe
it was required to give notice and an opportunity to bargain to the WAEA before implementing
the Novi and Royal Oak rules (Tr. 435). The statements of Durocher on January 17, 2012, made
it clear to the WAEA representatives that the Respondent did not intend to bargain with them 35
regarding the application of the Novi rules.
I understand the Respondent’s desire to have uniform policies regarding attendance;
employee rules; the assignment of overtime; and layoffs of employees from different home
plants working at the Novi and Royal Oak facilities. The fact is, however, that the provisions of 40
the Respondent's contract with the WAEA do not clearly and unmistakably give the Respondent
the unilateral right to apply such policies to WAEA represented employees working at those
facilities. As noted above, the record indicates that the Respondent had an established policy of
applying the provisions of the WAEA contract to employees represented by theWAEA working
at the Novi and Royal Oak facilities. The Respondent also had an established policy of applying 45
extracontractual practices to those employees regarding the manner in which overtime was
assigned and the order in which they were laid off relative to employees of the home plant,
JD–68–12
23
employees represented by another visiting union, and contractors. Under these circumstances, it
was incumbent upon the Respondent to give notice to the WAEA and an opportunity to bargain
before applying these rules to the WAEA employees. By failing to do so, the Respondent has
violated Section 8 (a)(5) and (1) of the Act.
5
The Acting General Counsel further contends that the Respondent also violated Section 8
(d) of the Act by making unilateral changes to terms and conditions of employment contained in
the 2011-2015 collective-bargaining agreement between the Respondent and the WAEA. It is
clear that an employer violates Section 8(a)(5) and (1) and Section 8(d) by modifying any
provision regarding a mandatory subject of bargaining contained in the collective bargaining 10
agreement during the term of that agreement. Daycon Products Co., 357 NLRB No. 52 (2011);
Milwaukee Spring Division, 268 NLRB 601, 602 (1984). As I have found above, the
Respondent had a practice of applying the terms of the WAEA collective-bargaining agreement
to WAEA represented employees temporarily working at the Novi and Royal Oak facilities. The
rules that the Respondent unilaterally implemented at Novi and Royal Oak included changes in 15
the following mandatory subjects of bargaining contained in the collective-bargaining agreement
between the Respondent and the WAEA: overtime credits (Jt. Exh.6, art. 12); seniority for
purposes of layoff (Jt. Exh. 6, art. 4); minimum working hours (Jt. Exh. 6, art. 25, rule 8); and
penalty increases to existing rules (Jt. Exh. 6, art. 25). It is clear that the Respondent did not seek
the consent of the WAEA prior to applying the Novi and Royal Oak rules to employees 20
represented by the WAEA working at those facilities. Accordingly, in addition to the violation of
Section 8(a)(5) and (1) set forth above the Respondent also violated Section 8(d) of the Act by
instituting changes regarding the above noted provisions in its current collective-bargaining
agreement with the WAEA.
25
The Appropriate Unit
As noted at the outset of this decision, the Acting General Counsel alleged in the
complaint that the appropriate unit is somewhat different than the bargaining unit described in
the 2011-2015 collective-bargaining agreement between the parties. In relevant part the unit 30
described in the collective-bargaining agreement is “[A]ll full-time and regular part-time
production and maintenance employees, including inspectors, employed by the Employer at its
facilities located at 42445 West 10 Mile Road, Novi, Michigan, but excluding all office clerical
employees, guards and supervisors as defined in the Act.” The Acting General Counsel alleges
that the unit description should be changed, in relevant part, to indicate that it includes all 35
employees “employed by Respondent at and out of its facility located at 42445 West 10 Mile
Road”
As set forth above, I have found that, by practice, the Respondent applied the terms of the
WAEA collective-bargaining agreement to WAEA represented employees when they were 40
temporarily assigned to another of the Respondent's facilities. I do not believe, however, under
the circumstances of this case, that it is appropriate to change the historical, voluntarily agreed to
unit description contained in the WAEA collective-bargaining agreement. It is important to keep
in mind that the contract was applied to employees working outside of the Wisne plant by
practice and that the violations of the Act that the Respondent committed involve a deviation 45
from that practice in that it unilaterally implemented new terms and conditions of the employees
to WAEA while they were temporarily working outside of the Wisne facility.
JD–68–12
24
I find the cases relied on by the Acting General Counsel in support of his position
regarding changing the contractual unit description to be unpersuasive. In this connection, in
Cencom of Missouri, 282 NLRB 253 (1986) the employer consolidated job functions and
reclassified employees into new categories. ADT Security Services, Inc. 355 NLRB No. 223 5
(2010); Comar, Inc. 339 NLRB 903 ( 2003); and Leach Corp., 312 NLRB 990 (1993) all
involved the permanent closure of a facility and the permanent relocation of unit work. These
cases all involved situations quite different from the instant one.
As will be set forth in more detail herein, I will order the Respondent to rescind the 10
unlawful unilateral changes it instituted and bargain with the WAEA in good faith if it wishes to
change the conditions of employment of WAEA employees working outside of their home plant.
Of course, with respect to matters that are expressly contained in the 2011-2015 collective-
bargaining agreement between the Respondent then the WAEA, any changes can only be made
with the WAEA’s consent. Under these circumstances, I do not find it to be appropriate to 15
change the existing unit description in the manner sought by the Acting General Counsel. Rather,
I will leave it to the parties to discuss changing the unit description if they so desire during any
bargaining that occurs in compliance with this decision.
Whether the Respondent Violated Section 8(a)(5) and (1) by Unilaterally Changing the Policy of 20
Permitting Union Representatives to Conduct Union Business During Working Time
As set forth above, the Respondent had a practice of permitting WAEA employee
representatives to take time off with permission of a supervisor to perform union business. While
working at Novi in February 2012, Ciaramitaro asked his supervisor Corich for permission to 25
take time off in order to prepare grievances. Corich gave Ciaramitaro permission to do so and
Ciaramitaro left his work area to prepare the grievances. When Ciaramitaro returned to his work
station, Corich told him that he was not going to be able to take time off for union business in the
future as Durocher told him that the WAEA did not exist anymore and it could not do business.
Corich gave Ciaramitaro a note that Corich had signed indicating that Durocher had stated "I 30
closed, Comau Auto so there isn’t any union (CAE). So how can Paul (Ciaramitaro) go on union
business.”
Corich later told Ciaramiataro that if he needed to leave to perform union business during
working time he had to go through another supervisor and could not talk to Corich about it 35
anymore. After that Ciaramitaro would go to another supervisor, Thompson, in order to get
permission to conduct union business. The record establishes that there was not even one
occasion when a WAEA representative was denied permission to conduct union business during
working time after February 2012.
40
An established practice of permitting employee union representatives to conduct union
business during working time is a mandatory subject of bargaining. Ernst Home Centers, Inc.
308 NLRB 848-849 (1992). There, the Board found that the employer had an established practice
of permitting the union's business representatives to have limited conversations with the
employer's employees on the sales floor of the employer’s stores. The Board found that the 45
employer's unilateral prohibition of the union business representatives right to speak with
employees in all areas except the break room or lunchroom was a material change and one that
JD–68–12
25
the employer was obligated to bargain over with the union. The Board determined that the
employer's failure to do so violated Section 8(a)(5) and (1) of the Act.
In the instant case, the only change that the Respondent implemented was requiring
Ciaramitaro to seek permission from Thompson rather than Corich before he conducted any 5
union business during working time. There is no evidence that the Respondent ever actually
restricted the right of any WAEA employee representative from conducting union business
during working time with permission of a supervisor. Thus, the Respondent took no action to
unilaterally restrict WAEA employee representatives in a material, substantial, and significant
way from conducting Union business during working time with supervisory permission.10
Accordingly, I shall dismiss the allegation contained in paragraph 13 of the complaint alleging
that the Respondent unilaterally changed its past practice of allowing WAEA officials the right
to conduct union business during working time.
A related allegation in paragraph 9 of the complaint alleges that on or about February 24, 15
2012, the Respondent, through Corich informed employees in the unit that their Union no longer
existed in violation of Section 8(a)(1) of the Act. The above-noted testimony of Ciaramitaro,
together with the note given to him by Corich, establishes that the Respondent conveyed to
Ciaramitaro that it did not recognize the right of the WAEA to represent employees in its
historical unit while such employees were working at the Novi plant. Since, as I have found 20
above, the WAEA did have the right to continue to represent employees in its historical unit
while they were working at the Novi plant, the Respondent has violated Section 8(a)(1) as
alleged in the complaint. Ed Morris Auto Park, 336 NLRB 1090, 1099 (2001).
I do not agree with the Respondent's assertion in its brief that it should not be held liable 25
for Corich’s statement because it is not consistent with the Respondent's position and was not
authorized. The Respondent's answer to the complaint admits that Corich was a supervisor and
agent of the Respondent within the meaning of the Act. Thus, Corich had actual authority to act
on the Respondent's behalf. It is the Board's established policy that a “principal is responsible for
its agents actions undertaken in furtherance of the principal's interests that fall within the general 30
scope of authority attributed to the agent.” Wal-Mart Stores, Inc. 350 NLRB 879, 884 (2007). It
is clear that making statements regarding labor relations matters was within the scope of Corich’s
authority.
As noted in the Acting General Counsel's brief, the Board has specific standards that an 35
employer must meet in repudiating unlawful conduct in order to escape liability. Passavant
Memorial Area Hospital, 237 NLRB 138 (1978). In order to be effective, the repudiation must be
“timely, unambiguous, specific in nature to the coercive conduct and free from other proscribed
illegal conduct.” In addition, there must be adequate publication of the repudiation to the
employees involved and there can be no unlawful conduct on the employer's part afterwards. 40
Finally, the employer should give assurances to employees that in the future it will not interfere
with their Section 7 rights. Id. at 138-139. In the instant case, the Respondent took no affirmative
action to repudiate Corich’s conduct and is therefore responsible for it.
45
JD–68–12
26
The Additional 8(a)(1) Allegations
Paragraph 8 of the complaint alleges that in early January 2012, the Respondent, by
Durocher, violated Section 8(a)(1) of the Act by coercively interrogating employees about their
discussion of union matters with other employees and directing employees not to discuss union 5
matters.
In December 2011, while Vargo was working at Novi, Durocher stopped him on the shop
floor and told him that his name had come up as influencing the Novi employees about changing
their vote on ratifying their contract. Vargo replied it was not true. Durocher then told Vargo that 10
he did not want him to interfere with the Novi employees’ vote on their contract. At the hearing,
Vargo explained that Novi employees had approached him and asked him questions about some
of the issues contained in the WAEA contract. According to Vargo, some of these employees
had told him they did not like the terms of their new contract and were not going to vote for it.
Vargo testified that he expressed his agreement with those employees who did not think the new 15
contract was a good one.
When Vargo spoke to Novi employees about the relative merits of the WAEA contract as
compared to the proposed NIEA contract, he was engaged in union and protected concerted
activity. When Durocher told Vargo that he had heard that Vargo was influencing Novi 20
employees to vote against their proposed contract, Durocher’s statement clearly invited a
response from Vargo and sought information regarding his union and protected concerted
activity . Durocher’s statement to Vargo was therefore interrogation in violation of Section 8(a)
(1) of the Act. Durocher’s statement to Vargo that he did not want Vargo to interfere with the
vote of the Novi employees on the contract was a clear directive not to discuss an issue involving 25
union and protected concerted activity with other employees and thus also violated Section 8(a)
(1) of the Act. Trade West Construction, Inc. 339 NLRB 12 fn. 2, 14 (2003).
Paragraph 10 of the complaint alleges that on or about January 18, 2012, the Respondent,
through Durocher, violated Section 8(a)(1) by threatening employees that if they did not accept 30
new work rules that varied from the provisions of the WAEA agreement they could take layoffs.
On January 17, 2012, Durocher held a meeting with WAEA employee representatives
Vargo, LaForest, Ciaramitaro, and Gault to discuss the new Novi rules that would be
implemented at the Novi facility. During this meeting Durocher told the WAEA representatives35
that “your contract has nothing to do with its plant.” Durocher indicated that while “earned
benefits” such as seniority, vacation and insurance went with an employee to wherever the
employee moved within the company, plant rules did not as those were plant specific. Durocher
added that the rules at the Novi facility applied to everybody that worked there. He emphasized
that the attendance policy, which seem to be the “sticking point,” was a rule. Durocher then 40
stated “if you can't live by those rules, you might want to just say I'll stay on layoff or I'll wait for
different opportunity to come my way. That's the deal, okay.”
Later in the meeting when LaForest asked Durocher if he could find out if the
Respondent could get rid of the contractors, Durocher responded that he did not know. Durocher 45
then stated again that if “"you guys don't want to come in, take a voluntary layoff, because here's
the deal, you displaced the contractor we had in here making money for us. That's okay because
JD–68–12
27
you are making money for us. But understand something, the Company does not need permission
from you guys to do our job.” Durocher then added that there were openings in Alabama and
asked if they would like him to transfer them there and give them two weeks to report and if they
did not show up “it’s a voluntary quit.” Durocher said that employees do not get to pick where
they are transferred; they either go where the opening is or stay on layoff. Durocher added that 5
he had no problems with outside contractors or Novi employees on this issue and stated “The
only problems come from your guys' union because of the personal days. And there is no way
I'm going to do that.”
Durocher’s statements indicated that the recently negotiated provisions of the 10
Respondent's contract with the NIEA regarding attendance in plant rules would apply to the
WAEA represented employees working at Novi. He further indicated that the attendance
provisions and shop rules of the WAEA contract would no longer be applicable to the WAEA
represented employees working at Novi. He further stated that if the WAEA represented
employees could not accept the new Novi rules they could take a layoff. He also added that there 15
were openings in Alabama and asked the WAEA representatives whether they would like him to
transfer WAEA represented employees there and give them 2 weeks to report and if they did not
show up, they would be considered to have voluntarily quit.
Since I found that the Respondent unilaterally applied the Novi rules to WAEA 20
represented employees in violation of Section 8(a)(5) and (1), Durocher’s statements indicated
that if employees could not accept unlawfully implemented rules they could take a layoff. He
added that he could also transfer them to Alabama. I find that these statements restrained and
coerced employees and thus violated Section 8(a)(1) of the Act.
25
The Respondent contends that since the WAEA contract gives employees the right to
accept a layoff rather than being temporarily transferred to another of the Respondent’s facilities,
Durocher’s statements truthfully advised employees of their rights under the contract and
therefore was not a threat; rather it is protected by Section 8(c) of the Act. I do not agree with
this position as Section 8(c) explicitly provides that an expression of an opinion by an employer 30
must be unaccompanied by any threats or promises of benefits in order to be privileged. In the
instant case the proposition advanced by Durocher was either accept working under unlawfully
implemented rules or take a layoff or be transferred. I find that this statement threatened
employees with either a layoff or transfer if they continue to exercise their Section 7 rights to
protest an unlawful unilateral change instituted by the Respondent. Accordingly, the statements 35
are not protected by Section 8(c).
The Allegation that the Respondent is Maintaining a Facially Invalid Rule
In his brief, the Acting General Counsel seeks a finding that the Respondent's 40
maintenance of the following rule at its Novi facility violates Section 8 (a) (1) of the Act:
Threatening, intimidating, coercing, or inappropriately disrupting the work
of employees or supervision at any time. (Jt. Exh. 3, rule 21)
45
The Acting General Counsel claims that the rule is facially invalid and seeks an order
requiring it to be rescinded. The complaint, however, does not specifically contain an allegation
JD–68–12
28
that the above noted rule is facially invalid. In so far as relevant to this issue, paragraph 14 of the
complaint alleges that the Respondent failed to continue in effect the terms and conditions of the
WAEA agreement by handing out new work rules to WAEA represented employees which
altered provisions of that agreement regarding certain subjects including "(f) penalties for
threatening, intimidating, coercing or inappropriately disrupting the work of employees or 5
supervision at any time.” The complaint further alleges that the conduct alleged in paragraph 14
violated Section 8(a)(5)(1) and Section 8(d) of the Act
The complaint allegation, in my view, is insufficient to put the Respondent on notice that
the Acting General Counsel was challenging the facial validity of the rule quoted above. The 10
complaint only alleges that the Respondent violated the Act by unilaterally changing the
penalties for violation of that rule. At the hearing in this case, I cautioned counsel for the Acting
General Counsel that I would not make a finding that certain statements made by the Respondent
supervisor and agent Marco Andriano violated Section 8(a)(1) of the Act unless the complaint
was amended to allege that statements to be a violation of the Act. I indicated at that time, the 15
Respondent has a right to know specifically what the alleged unfair labor practices are. The same
rationale applies here. If the Acting General Counsel wish to litigate this issue, at minimum, the
complaint should have been amended at the hearing to specifically allege that the rule was
facially invalid in violation of Section 8(a)(1) of the Act. No such complaint amendment was
made, however. Without a specific complaint allegation that the rule quoted above was facially 20
invalid, in my view, the Respondent was not accorded sufficient due process to defend itself on
this issue and I will therefore not consider this issue on the merits.
CONCLUSIONS OF LAW
25
1. The Wisne Automation Employees Association (WAEA) is, and, an at all material
time was, the exclusive representative for the employees in the following appropriate unit:
All full-time and regular part-time production and maintenance employees,
including inspectors, employed by the Respondent at its facilities located at 42445 30
West 10 Mile Road, Novi, Michigan, but excluding all office clerical employees,
guards and supervisors as defined in the Act.
2. By failing to bargain over the effects of the temporary closure of its Wisne
Automation facility with the WAEA, the Respondent violated Section 8(a)(5) and (1) of the Act.35
3. By failing to bargain with the WAEA regarding the application of the Novi and Royal
Oak rules to WAEA represented employees temporarily working in those facilities, the
Respondent violated Section 8(a)(5) and (1) of the Act.40
4. By unilaterally changing certain terms of its 2011-2015 collective bargaining
agreement with the WAEA, the Respondent violated Section 8(a)(5) and (1) and Section 8(d) of
the Act.45
JD–68–12
29
5. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of
the Act by:
(a) Informing employees represented by the WAEA that their Union no longer
existed at the Novi facility.5
(b) Interrogating employees about their union and protected concerted activities.
(c) Directing employees not to discuss issues involving union and protected
concerted activity with other employees.10
(d) Threatening employees with layoff and transfer if they do not acquiesce in
unilaterally implemented work rules.
6. The above offer labor practices affect commerce within the meaning of Section 2(2), 15
(6) and (7) of the Act.
7. The Respondent has not otherwise violated the Act.
REMEDY20
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
25
As I indicated above, with respect to the Respondent’s violation of Section 8(a)(5) and
(1) of the Act by failing to bargain over the effects of the temporary closure of the Wisne facility,
under the circumstances of this case, I shall limit the remedial relief to ordering that the
Respondent cease and desist its unlawful conduct and post an appropriate notice.
30
With respect to the failure of the Respondent to bargain with the WAEA regarding the
application of the Novi and Royal Oak rules to the WAEA represented employees temporarily
assigned to those facilities, upon request of the WAEA, I shall order that the Respondent rescind
the application of those rules, and any discipline that resulted from the application of those
rules,12 to WAEA represented employees. In addition, I shall order the Respondent to apply the 35
terms of the current contract between it and the WAEA, including the attendance provisions and
shop rules, to WAEA employees temporarily assigned to the Novi and Royal Oak facilities. I
shall also order the Respondent to restore the pre-January 2012 method of assigning overtime to,
and the method of determining the order of layoff of, WAEA represented employees temporarily
assigned to the Novi and Royal Oak facilities. I shall also order the Respondent to give notice 40
and, on request, bargain with the WAEA regarding the application of the Novi and Royal Oak
rules to employees represented by the WAEA who are temporarily assigned to those facilities.

12 The record indicates that employee Hermon Gray, who was ultimately discharged for his
attendance record, apparently would have been eligible for discharge under the attendance policy set forth
in the WAEA agreement. (Tr. 338; R.Exh. 7.) However, I will leave the final resolution of this issue to
the compliance phase of this proceeding.
JD–68–12
30
I shall order the Respondent to make WAEA represented employees whole for any loss
of earnings and other benefits suffered as a result of the Respondent’s unilateral application of
the Novi and Royal Oak rules to them. Any amounts of money necessary to make employees
whole under the terms of this remedy shall be computed in accordance with Ogle Protection
Service, 183 NLRB 682 (1970); with interest at the rate prescribed in NewHorizons for the5
Retarded, 283 NLRB 1173 (1987); compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010), enf. denied on other grounds sub.nom., Jackson Hospital Corp.
v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
With respect to the notice posting portion of the remedy, the record clearly establishes 10
that from time to time WAEA represent employees have been temporarily assigned to work at
the Novi and Royal Oak facilities. Some of the unfair labor practices I have found occurred at
those facilities while WAEA represented employees were working there. The Board’s policy is
to have notices posted in the manner that will best inform affected employees about the outcome
of this proceeding and the nature of their rights under the Act. Under these circumstances, I find 15
that it would best effectuate the policies of the Act to require that the notice be posted not only at
the Wisne Automation facility but also at the Novi and Royal Oak facilities. Technology Service
Solutions, 334 NLRB 116 (2001).
On these findings of fact and conclusions of law and on the entire record, I issue the 20
following recommended13
ORDER
The Respondent, Comau, Inc., its officers, agents, successors, and assigns, shall25
1. Cease and desist from
(a) Failing to bargain over the effects of the temporary closure of the Wisne
Automation facility with the WAEA.30
(b) Failing to bargain regarding the application of the Novi and Royal Oak rules with
the WAEA regarding WAEA represented employees temporarily assigned to the Novi and Royal
Oak facilities.
35
(c) Unilaterally changing certain terms of its 2011-2015 collective bargaining
Agreement with the WAEA without the WAEA’s consent.
(d) Informing employees represented by the WAEA that their Union no longer
existed at the Novi facility.40
(e) Interrogating employees about their union and protected concerted activities.

13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–68–12
31
(f) Directing employees to not discuss issues involving union and protected
concerted activity with other employees.
(g) Threatening employees with layoffs and transfers if they did not acquiesce in
unilaterally imposed work rules. 5
(h) In any like or related manner, interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.10
(a) Rescind the Novi and Royal Oak rules as applied to WAEA represented
employees temporarily assigned to the Novi and Royal Oak facilities.
(b) Rescind any discipline imposed pursuant to the Novi and Royal Oak rules upon 15
WAEA represented employees who were temporarily assigned to the Novi and Royal Oak
facilities.
(c) Give notice and an opportunity to bargain to the WAEA regarding the application
the rules at the Novi and Royal Oak facilities to employees represented by the WAEA. The 20
appropriate unit is:
All full-time and regular part-time production and maintenance employees,
including inspectors, employed by the Respondent at its facilities located at 42445
West 10 Mile Road, Novi, Michigan, but excluding office clericals, guards and 25
supervisors as defined in the Act.
(d) Make whole employees represented by the WAEA for any loss of earnings and
other benefits suffered as a result of our unilateral application of the Novi and Royal Oak rules to
them in the manner set forth in the remedy section of this decision.30
(e) Within 14 days from the date of the Board’s order, remove from its files any
references to unlawful discipline imposed pursuant to the Novi and Royal Oak rules upon
WAEA represented employees, and within 3 days thereafter notify the employees in writing that
this is been done and that the discipline will not be used against them in any way.35
(f) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in 40
electronic form, necessary to analyze the amount of backpay due under the terms of this Order
45
JD–68–12
32
(g) Within 14 days after service by the Region, post at its Wisne Automation and
Novi Industries facilities in Novi, Michigan, and its Royal Oak facility in Royal Oak Michigan,
copies of the attached notice marked “Appendix.”14 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 and maintained for 60 consecutive days in 5
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by 10
any other material. In the event that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facilities involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since December 1, 2011.
15
(g) 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.
(h) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges 20
violations of the Act not specifically found.
Dated, Washington, D.C., December 26, 2012.
25
____________________
Mark Carissimi
Administrative Law Judge

14 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.”
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT fail to bargain over the effects of the temporary closure of the Wisne
Automation facility with the Wisne Automation Employees Association (WAEA).
WE WILL NOT fail to bargain regarding the application of the Novi and Royal Oak rules with
the WAEA regarding WAEA represented employees temporarily assigned to the Novi and Royal
Oak facilities.
WE WILL NOT unilaterally change the terms of our 2011-2015 collective-bargaining agreement
with the WAEA without the WAEA’s consent.
WE WILL NOT inform employees represented by the WAEA that their Union no longer exists
at the Novi facility.
WE WILL NOT interrogate employees about their union and protected concerted activities.
WE WILL NOT direct employees to not discuss issues involving union and protected concerted
activity with other employees.
WE WILL NOT threaten employees with layoff and transfers if they do not acquiesce in
unilaterally imposed work rules
WE WILL NOT in any like or related manner, interfere with, restrain or coerce employees in the
exercise of the rights guaranteed to them by Section 7 of the Act.
WE WILL rescind the Novi and Royal Oak rules as applied to WAEA represented employees
temporarily assigned to the Novi and Royal Oak facilities.
WE WILL rescind any discipline imposed pursuant to the Novi and Royal Oak rules upon W
AEA represented employees who were temporarily transferred to the Novi and Royal Oak
facilities.
WE WILL give notice and an opportunity to bargain to the WAEA regarding the application of
the rules at the Novi and Royal Oak facilities to employees represented by the WAEA. The
appropriate unit is:
All full-time and regular part-time production and maintenance employees, including
inspectors, employed by the Employer at our facilities located at 42445 West 10 Mile
Road, Novi, Michigan, but excluding office clericals, guards and supervisors as defined
in the Act
WE WILL make whole employees represented by the WAEA for any loss of earnings and other
benefits suffered as a result of our unilateral application of the Novi and Royal Oak rules to
them, with interest.
WE WILL remove from our files any references to unlawful discipline imposed, pursuant to the
Novi and Royal Oak rules, upon WAEA represented employees, and notify the employees in
writing that this is been done and that the discipline will not be used against them in any way.
COMAU, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226-2569
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (313) 226-3244.