Flambeau Airmold Corporation

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1025 (N.L.R.B. 2002)

FLAMBEAU AIRMOLD CORP. 1025
Flambeau Airmold Corporation and Union of Nee­
dletrades, Industrial, and Textile Employees,
AFL–CIO, CLC. Cases 11–CA–17172, 11–CA–
17385, and 11–CA–17537
August 1, 2002
ORDER GRANTING GENERAL COUNSEL’S
MOTION AND DENYING THE UNION’S MOTION
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND COWEN
On May 30, 2001, the National Labor Relations Board
issued a Decision and Order1 finding, inter alia, that the
Respondent had violated Section 8(a)(5) and (1) of the
Act by making numerous unilateral changes in employ­
ees’ terms and conditions of employment, including in-
creasing the amount of employee contributions for health
insurance premiums effective February 2, 1997, and
eliminating all material handler positions, five mainte­
nance helper positions, and its tool maker apprenticeship
program.
On July 2, 2001, the Charging Party Union filed a
“Motion to NLRB to Clarify and Modify Decision.” The
Union asserted that the Respondent had again unilater­
ally increased employee health insurance payments in
both 1998 and 1999. The Union had requested that the
Region’s compliance officer include the 1998 and 1999
increases in the backpay calculations to remedy the Re­
spondent’s unfair labor practice violations. By letter
dated June 26, 2001, the compliance officer denied the
Union’s request. In response, the Union has requested
that the Board clarify and amend its Decision and Order
to provide for the litigation of the Respondent’s alleged
1998 and 1999 increases in the unit employees’ health
insurance payments during the compliance stage of this
proceeding.
Thereafter, on September 20, 2001, the General Coun­
sel filed a “Motion to Modify Order to Include a Make
Whole Remedy” to provide a make-whole provision for
the Respondent’s 8(a)(5) and (1) violation in unilaterally
eliminating material handler positions, five maintenance
helper positions, and its tool maker apprenticeship pro-
gram. The General Counsel asserted that the judge and
the Board inadvertently had failed to include such an
order and requested that the Board modify its Order ac­
cordingly.
On October 2, 2001, the Board issued a Notice to
Show Cause why both the Union’s and the General
Counsel’s motions should not be granted. The Respon­
dent filed a response to the Notice to Show Cause.
1 334 NLRB 165
Thereafter, the Union requested leave to file a reply brief,
which the Board accepted.
After considering the entire record and the arguments
that the parties raise here, we have to decided to grant the
General Counsel’s unopposed motion, but deny the Un­
ion’s motion because the Board’s established policy does
not permit subsequent unfair labor practices to be lit i­
gated during the compliance stage of the proceeding.2
1. Regarding the General Counsel’s motion, the Re­
spondent does not contest the applicability of the make-
whole remedy sought by the General Counsel to the job
classifications that the Respondent unlawfully elimi­
nated. The Respondent requests, however, that the
Board allow it the right to dispute at the compliance
stage of this proceeding the accuracy of the Board’s find­
ings that these job classifications actually existed, as well
as the identities of employees who suffered losses as a
result of any unilateral change.
In granting the General Counsel’s motion, we shall not
permit the Respondent to relitigate in compliance the
issue of whether unit employees, in fact, had worked in
the job classifications described above so that the Re­
spondent’s elimination of them constituted an unlawful
unilateral change. The Board clearly decided the matter
against the Respondent in its earlier decision finding this
violation. We shall allow the Respondent to challenge
the identities of the employees who held these jobs be-
cause the Board has made no finding on this issue.
2. Regarding its motion to clarify and modify, the Un­
ion has contended that “in furtherance of administrative
economy” the Board should amend its earlier decision to
allow for litigation during compliance of its allegation
that the Respondent further violated the Act by increas­
ing employees’ health insurance contributions during
1998 and 1999. To support its motion, the Union relies
particularly on Operating Engineers Local 925 (J. L.
Manta, Inc.) , 168 NLRB 818 (1967), supplemented by
180 NLRB 759 (1970), enfd. in relevant part 460 F.2d
589, 600–601 (5th Cir. 1972), in which the Board
amended its prior decision to require that the respondent
union in that case reimburse the discriminatee for acts of
hiring hall discrimination that occurred after the close of
the unfair labor practice hearing.
The Respondent, in its response to the Notice to Show
Cause, points out, citing Ironworkers Local 373 (Build­
ing Contractors Assn. of New Jersey), 295 NLRB 648,
650 (1989), enfd. 70 F.3d 1256 (3d Cir. 1995), that the
general rule is that the Board does not permit subsequent
unfair labor practice allegations to be litigated during
2 We shall also modify the recommended Order in accordance with
our recent decision in Ferguson Electric Co., 335 NLRB 142 (2001).
337 NLRB No. 161
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
compliance proceedings. The Respondent argues that,
because any charges relating to events that took place
during 1998 and 1999 would be barred on timeliness
grounds by Section 10(b) of the Act, the Union is at-
temp ting to bypass the liability phase for these alleged
unfair labor practices and have them litigated as part of
the compliance proceeding here. Contrary to the Union,
the Respondent asserts that Operating Engineers Local
925 is distinguishable from the present case because the
Board interpreted the make-whole remedy there “as ap­
plying prospectively and to acts that occurred after the
original hearing.” (Emphasis in original.) In reply, the
Union contends that the Respondent’s attempt to distin­
guish Operating Engineers Local 925 is misplaced. The
Union asserts that the decision in that case is apposite
here because it permitted the litigation of alleged viola­
tions in compliance that were closely related to the
timely charges decided in the unfair labor practice pro­
ceeding. The Union also notes that in both American
Electric Power Co., 302 NLRB 1021 at fn. 1 (1991),
enfd. 976 F.2d 725 (4th Cir. 1992), and Davis Electrical
Constructors, 291 NLRB 115, 116–117 (1988), the
Board held “that [Section] 10(b) does not bar the
amendment of a complaint to reflect violations not
charged but involving conduct identical to and occurring
later than conduct that was the subject of a timely
charge.”
It is well established, as the Respondent has noted, that
“[o]nce the Board has found a violation of the Act, it
usually does not permit subsequent unfair labor practice
allegations to be litigated in compliance proceedings.”3
The affected party has the obligation, on learning that the
unlawful activity appears to be continuing or resuming,
to file another charge so that the Ge neral Counsel can
make a merit determination and, if necessary, issue an
additional complaint covering the new unfair labor prac­
tice allegations. Section 10(b), however, does establish
the limitations period barring any complaint based on
unfair labor practices occurring more than 6 months be-
fore the filing of the charge. That period does not begin
to run on the alleged unfair labor practices until the af­
fected party is put on notice, actually or constructively,
of the acts constituting the alleged violations.4
Although the Board in Operating Engineers Local 925
departed from its usual practice and modified its earlier
Order to provide specifically for backpay relief concern­
ing alleged discrimination that occurred after the hearing,
we find no reason to make a similar exception to our
general policy in this case. We note that the Fifth Cir-
3 Iron Workers Local 373, supra at 650.
4 Burgess Construction, 227 NLRB 765, 766 (1977), enfd. 596 F.2d
378 (9th Cir. 1979), cert. denied 444 U.S. 940 (1979).
cuit, in enforcing the Board’s backpay determination
there, noted with approval that the backpay specification
included “specific alleged unfair labor practices occur-
ring subsequent to the close of the [unfair labor practice]
hearings.”5 The court concluded that, because the com­
pliance specification set out the additional unfair labor
practices alleged, the specification was tantamount to a
new complaint and should be treated as such.6 By con­
trast, the General Counsel in this proceeding has stated
that the compliance specification will not permit any
recovery of the Respondent’s purported increases in the
unit employees’ health insurance contributions during
1998 and 1999. The present situation, therefore, is
clearly distinguishable from Operating Engineers Local
925 because the General Counsel in this case does not
seek to have additional violations found in compliance.7
Thus, even assuming we were inclined to deviate from
our established policy of not permitting the litigation of
alleged unfair labor practices in compliance, we recog­
nize that it is the General Counsel who has broad author­
ity under Section 3(d) of the Act to initiate and prosecute
complaints in unfair labor practice proceedings.8 The
Board would be usurping the General Counsel’s statutory
authority if we directed him to consider during compli­
ance, as the Union has urged, the additional alleged vio­
lations regarding the 1998 and 1999 increases in em­
ployee contributions. For these reasons, we deny the
Union’s motion to clarify and amend our original deci-
sion.9
5 460 F.2d at 600.
6 Id. at 601.
7 Although the dissent points out that the General Counsel has not
opposed the Union’s motion here, we find that the General Counsel’s
refusal to amend the compliance specification clearly reveals his posi­
tion that recovery for the 1998 and 1999 increases is not appropriate in
this proceeding.
8 See, e.g., NLRB v. Food & Commercial Workers Local 23, 484
U.S. 112 (1987).
9 Our colleague claims that we have failed to restore the status quo
ante by denying the Union the opportunity to litigate any subsequent
increases in employees’ health insurance contributions. We stress,
however, that the Board’s original decision adopts the judge’s remedial
order that requires, inter alia, the Respondent to “charge employees the
same amount [for health insurance] as it did prior to 1997.” The Board
framed its Order in this manner because the record before the Board did
not indicate that changes were made in 1998 and 1999. Assuming that
there is no timely allegation that the 1998 and 1999 changes were
unlawful, the Respondent will have the opportunity to show, in compli­
ance proceedings, that the pre-February 2, 1997 conditions should be
restored only until the lawful changes of 1998 and 1999, and employees
should be made whole only for that period. Contrary to the dissent, we
conclude that the Board’s remedy does not justify the litigation in com­
pliance of separate and distinct unfair labor practice allegations based
on any increases that occurred during 1998 and 1999. We also disagree
with our colleague’s conclusion that the litigation of these alleged post-
hearing increases would legitimately “serve administrative economy”
in the present circumstances where the General Counsel has amended
FLAMBEAU AIRMOLD CORP. 1027
ORDER
The General Counsel’s motion to modify the Board’s
Order is granted, whereas the Union’s motion to clarify
and modify is denied. Accordingly, the Board’s Order in
the underlying decision (334 NLRB No. 16) is modified,
and the Respondent, Flambeau Airmold Corporation,
Weldon, North Carolina, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Add the following as paragraph 2(g) of the Order
and reletter the subsequent paragraphs accordingly.
“(g) Make whole employees who formerly worked in
material handler positions, maintenance helper positions,
and the tool maker apprenticeship program for any loss
of earnings they may have suffered as a result of the Re­
spondent’s unlawful elimination of their job classifica­
tions in the manner prescribed in Ogle Protection Ser­
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as provided by New Horizons for the
Retarded, 283 NLRB 1173 (1987).”
2. Substitute the following for present paragraph 2(i)
that has become paragraph 2(j) with the addition of the
paragraph above.
“(j) 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 to be
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 electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
3. Substitute the attached notice to employees for that
which issued on May 30, 2001.10
MEMBER LIEBMAN, dissenting in part.
The Charging Party, Union of Needletrades, Industrial,
and Textile Employees, AFL–CIO, CLC (UNITE!), has
moved for an order to clarify and modify the Board’s
Decision and Order of May 30, 2001, “to provide for
make-whole relief for the Employer’s continual viola­
tions of its obligation to bargain with the Union over
increases in employee contributions for health insurance
neither the original complaint nor the compliance specification to in­
clude these alleged violations and where any new complaint raising
them would be time barred by Sec. 10(b).
Chairman Hurtgen notes that the 1998 and 1999 increases were not
contemplated by the 1997 charge. If they had been, they might well be
recoverable in this proceeding. However, inasmuch as the 1998 and
1999 increases were new acts, they must be the subject of separate and
timely charges.
10 We shall include in the new notice the changes mandated by our
recent decision in Ishikawa Gasket American, Inc., 337 NLRB No. 29
(2001).
premiums.” The Union seeks this clarification so that
during compliance proceedings, the parties may litigate
whether changes made in 1998 and 1999 similarly vio­
lated Section 8(a)(5) and, if so, what the appropriate
remedy should be. My colleagues deny the Union’s mo­
tion. In my view, it is not necessary for the Board to clar­
ify its original Decision and Order as a means of facilitat­
ing the relief the Union seeks. The Board’s original
remedy cannot be fully effectuated without permitting
the litigation of the 1998 and 1999 increases in the com­
pliance phase. That is because the pre-February 1997
status quo ante cannot be restored without determining
the legality of the intervening increases. This necessarily
must be done in the compliance phase.
In its decision, the Board held that the Respondent vio­
lated Section 8(a)(5) and (1) by, among other things,
unilaterally increasing employees’ health care contribu­
tions in February 1997. The Board ordered the Respon­
dent to cease and desist from “Refusing to bargain with
[the Union] by unilaterally . . . increasing the amounts
employees pay for health insurance.” The Board also
ordered the Respondent to “charge employees the same
amount as it did prior to February 2, 1997,” and to
“Make whole all employees affected by the increased
amounts they paid for health insurance.” Further, the
Board ordered the Respondent to “Notify and give the
Union an opportunity to bargain before making any
change in terms and conditions of employment of unit
employees.”
The Union’s motion to clarify alleges that, following
the close of the unfair labor practice hearing, the Re­
spondent in 1998 and 1999 again unilaterally increased
the amounts employees contribute to the cost of their
health insurance. In support of its motion to clarify, the
Union relies on Operating Engineers Local 925, 168
NLRB 818 (1967), subsequent proceedings 180 NLRB
759 (1970), enfd. in relevant part 460 F.2d 589 (5th Cir.
1972). In that case, the Board amended its decision, in
which it found that the respondent union had committed
hiring hall violations, to allow the General Counsel in
compliance to seek a remedy for the union’s alleged
posthearing continuation of its unlawful hiring-hall prac­
tices. The Board, of course, cautioned that the “General
Counsel must necessarily prove that any claimed losses
of wages . . . resulted from discriminatory refusals to
refer [the Charging Party].” The Union here seeks a
similar opportunity for the Ge neral Counsel to establish
the Respondent’s continued unilateral increases in em­
ployees’ health care contributions and obtain appropriate
relief.
The majority denies the Union’s motion largely “be-
cause the Board’s established policy does not permit sub-
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sequent unfair labor practices to be lit igated during the
compliance stage of the proceeding.” In this case, how-
ever, rote application of this “established policy” makes
no sense. More on point is that “in cases, like here, in­
volving a violation of Section 8(a)(5) based on a respon­
dent’s unilaterally altering existing benefits, it is the
Board’s established policy to order restoration of the
status quo ante to the extent feasible, and in the absence
of evidence showing that to do so would impose an un­
due or unfair burden upon the respondent.” Allied Prod­
ucts Corp., 218 NLRB 1246 (1975), enfd. 548 F.2d 644
(6th Cir. 1977).
I do not understand how the Board’s status quo ante
remedy can fully be effectuated, or even accurately cal­
culated, without allowing litigation of the intervening
increases. As stated, the Board ordered the Respondent to
“charge employees the same amount as it did prior to
February 2, 1997,” and to “make whole all employees
affected by the increased amounts they paid for health
insurance.” The legality of the intervening increases
would surely have to be taken into account if the pre-
February 1997 status quo is to be restored. This remedy
will be effectuated if the General Counsel, in compli­
ance, is allowed to contest the validity of the 1998 and
1999 increases, which the Respondent presumably will
assert as a basis for limiting its backpay liability.
Further, as the Union argues, allowing the parties to
litigate the validity of the posthearing increases in com­
pliance will serve administrative economy without im­
posing a significant burden on the parties or the judge.
The Respondent has not disputed the fact of the alleged
post-hearing increases or the Union’s assertion that the
increases were implemented without notice to and bar-
gaining with the Union. Moreover, the Board has al­
ready considered and rejected the Respondent’s conten­
tion that it had an established practice of unilaterally in-
creasing employees’ health care contributions. It thus
appears that the judge could efficiently resolve whether
the 1998 and 1999 increases were lawful.
Last, contrary to the Respondent’s argument, the Un­
ion’s allegations of posthearing increases are not time-
barred under Section 10(b). The alleged posthearing vio­
lations are not merely closely related to the violations
found by the Board; they are essentially identical. See
NLRB v. Fant Milling Co., 360 U.S. 301 (1959).
For all of these reasons, I find that the Board’s Order
implicitly permits litigation in the compliance stage, as
sought by the Union.1
1 I, of course, agree with the majority that the Board should not
usurp the General Counsel’s authority to initiate and prosecute com­
plaints in unfair labor practice proceedings. At issue here, however, is
the Board’s statutory authority to take such action as will effectuate the
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Go vernment

The National Labor Relations Board has found that we vio­
lated 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 bene­
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT deal directly with our employees con­
cerning their hours and working conditions.
WE WILL NOT refuse to bargain with the Union of Nee­
dletrades, Industrial, and Textile Employees, AFL–CIO,
CLC, by unilaterally instituting and enforcing new time-
clock rules and enforcing previously unenforced time-
clock rules; changing your job assignments; eliminating
all material handler positions, five maintenance helper
positions, and our tool maker apprenticeship program;
charging you for safety equipment and increasing the
cost of replacement time cards; requiring that machines
not be shut down at shift change; more strictly enforcing
our break policy; disciplining you for contamination of
regrind when no product is contaminated; disciplining
machine operators for failure to properly complete pa­
perwork associated with machine operation; requiring
you, when questioned about a production matter, to give
a response that a supervisor deems satisfactory notwith­
standing the absence of any deficiency in your work;
increasing the amounts employees pay for health insur­
ance; and changing our requirements for obtaining ap­
proval of sick leave and vacation leave. The appropriate
bargaining unit is:
All hourly production associates, including mainte­
nance associates, total shop associates, warehouse as­
sociates, quality assurance associates, secondary as­
sembly associates, and leadpersons, but excluding of­
fice clerical employees, administrative employees, pro-
policies of the Act. The Board has wide discretion in ordering affirma­
tive relief to remedy violations of the Act, including orders to restore
the status quo ante. Moreover, in this instance, while the compliance
officer earlier denied the Union’s request to amend the compliance
specification, the General Counsel has not opposed the Union’s motion.
FLAMBEAU AIRMOLD CORP. 1029
fessional and technical employees, temporary agency
employees, and guards and supervisors as defined in
the Act.
WE WILL NOT discharge you, suspend you, warn you, or
otherwise change your terms and conditions of employ­
ment by making unlawful unilateral changes.
WE WILL NOT fail to give notice to, and bargain with,
the Union regarding the effect on you of the institution of
a continuous shift operation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the unilateral changes that we have
made in your terms and conditions of employment by
instituting and enforcing new timeclock rules and enforc­
ing previously unenforced timeclock rules; changing
your job assignments; eliminating all material handler
positions; five maintenance helper positions, and our tool
maker apprenticeship program; charging you for safety
equipment and increasing the cost of replacement time
cards; requiring that machines not be shut down at shift
change; more strictly enforcing our break policy; disci­
plining you for contamination of regrind when no prod­
uct is contaminated; disciplining machine operators for
failure to properly complete paperwork associated with
machine operation; requiring you, when questioned
about a production matter, to give a response that a su­
pervisor deems satisfactory notwithstanding the absence
of any deficiency in your work; increasing the amounts
you pay for health insurance; and changing our require­
ments for obtaining approval of sick leave and vacation
leave.
WE WILL notify and give the Union an opportunity to
bargain before making any changes in your terms and
conditions of employment.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis­
cipline we issued to you pursuant to our unlawful unilat­
eral changes and, within 3 days thereafter, WE WILL no­
tify you in writing that this has been done and that the
discipline will not be used against you in any way.
WE WILL, within 14 days from the date of this Order,
offer Tony Clark and Stephanie Sledge full reinstatement
to their former job assignments and Thomas Ellis and
Parthenia Rhodes full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva­
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make whole Toney Clark, Rex Davis, Tho-
mas Ellis, Parthenia Rhodes, and Virginia Vaughn for
any loss of earnings and other benefits resulting from
their discipline, less any net interim earnings, plus inter­
est.
WE WILL reinstate all material handler positions, five
maintenance helper positions, and the tool maker appren­
ticeship program.
WE WILL make whole employees who formerly worked
in material handler positions, maintenance helper posi­
tions, and the tool maker apprenticeship program for any
loss of earnings they suffered as a result of the Respon­
dent’s unlawful elimination of their job classifications,
with interest.
WE WILL make whole all of you who were affected by
the charges made for safety equipment and the increased
cost of replacement timecards.
WE WILL make whole all of you who paid increased
amounts for their health insurance as a result of our in-
creasing the amount of health insurance premiums that
you paid during 1997.
FLAMBEAU AIRMOLD CORPORATION