General Cable Texas

National Labor Relations Board - Administrative Judge Opinions

Jun 8, 2004

16-CA-023012 (N.L.R.B. Jun. 8, 2004)

JD(ATL)–32–04
Scottsville, TX

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

GENERAL CABLE TEXAS
OPERATIONS LIMITED
PARTNERSHIP

and CASES 16–CA–23012
16–CA–23279
INTERNATIONAL UNION,
UNITED AUTOMOBILE,
AEROSPACE & AGRICULTURAL
IMPLEMENT WORKERS
OF AMERICA – UAW

Michael Rank, Esq., for the General Counsel.
Jeffrey E. Myers, Esq. and Donald D. Gamburg, Esq.
(Blank & Rome, LLP), of Philadelphia, PA
for the Respondent.
Mr. Wendell Helms and Mr. Dennis Keys,
of Dallas, TX, for the Charging Party.

BENCH DECISION AND CERTIFICATION

Statement of the Case

KELTNER W. LOCKE, Administrative Law Judge: I heard this case on April 28 and 29,
2004 in Marshall, Texas. After the parties rested, I heard oral argument, and on April 30, 2004,
issued a bench decision pursuant to Section 102.35(a)(1) of the Board’s Rules and Regulations,
setting forth findings of fact and conclusions of law. In accordance with Section 102.45 of the
Rules and Regulations, I certify the accuracy of, and attach hereto as “Appendix A,” the portion
of the transcript containing this decision.1

The Conclusions of Law, Remedy, Order and Notice are set forth below, following
further analysis of certain issues presented in this case.

1 The bench decision appears in uncorrected form at pages 474 through 495 of the transcript. The final
version, after correction of oral and transcriptional errors, is attached as Appendix A to this Certification.
JD(ATL)–32–04

Further Discussion

As discussed in the bench decision, Respondent had a well–established practice of
granting a wage increase each July, but failed to do so in July 2003. The Complaint alleges that
this failure constituted discrimination in violation of Section 8(a)(3) of the Act, and a unilateral
change in violation of Section 8(a)(5) of the Act. In the bench decision, I found that Respondent
violated both sections.
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The bench decision observed that “the parties devoted considerable time to the issue of
whether or not Respondent’s layoff scheme was consistent with Respondent’s past practice or
departed from it. That issue misses the point.” This statement requires clarification. A
unilateral change violation concerns an employer’s departure from the status quo without first
notifying and bargaining with the union representing affected employees, and clearly, the status
quo includes established past practices.

In this case, Respondent’s “Policy Guide” provided evidence concerning what layoff
procedure constituted the status quo. This “Policy Guide” includes a section captioned
“Reduction in Force Policy,” divided into these subsections: “Reduction in Force – Temporary,”
“Reduction In Force – Voluntary” “Reduction in Force – Involuntary,” and “Bumping
Procedures.” All the “reduction in force” subsections specifically applied to layoffs exceeding,
or expected to exceed, 30 days.

At hearing, Respondent’s former human resources manager, Victoria Jackson, pointed to
statements in the “Policy Guide” that a temporary layoff can be made for a period of up to thirty
(30) days without resorting to the reduction–in–force policy.” She also testified that, to her
knowledge, the “Reduction in Force – Temporary” policy had never been involved.

Jackson appeared to take the position, or at least to imply, that management had complete
freedom to fashion a layoff lasting less than 30 days because the “Policy Guide” said that such
layoffs “can be made. . .without resorting to the reduction–in–force policy.” However, the
“Policy Guide” and the National Labor Relations Act are two separate things. A layoff allowed
by the “Policy Guide” might still violate the duty to bargain collectively set forth in the Act.

In oral argument, Respondent did not rest its defense on the proposition that its “Policy
Guide” gave it discretion to adopt a new procedure when the contemplated layoff would last 30
days. Rather, Respondent’s counsel appeared to assume that its “Policy Guide” did apply to the
layoff, and that Respondent followed this manual as much as the unique circumstances allowed.
Thus, during oral argument Respondent’s counsel stated: “It is our position that Ms. Jackson
captured the actual situation better than anyone when she said, We followed the essence of the
policy.”

Contrary to Respondent, I conclude that the “Policy Guide” did not provide instructions
on how to conduct a layoff lasting less than 30 days. Moreover, I conclude that Respondent had
no established past practice concerning such a layoff. However, even if the layoff procedures in
the “Policy Guide” did apply, and even if they reflected an established past practice, Respondent
departed from those procedures.
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Indeed, in oral argument Respondent conceded “it is undisputed we did not strictly follow
that policy of volunteers.” Plant Manager Kitchen testified that if management had asked for
volunteers, it could have left Respondent with too few trained associates to fill needed positions.
Respondent apparently assumes that there was, in fact, a past practice but that it was impractical
to follow.
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Arguments about the existence or nonexistence of a past practice miss the point because
even if there were a past practice, Respondent admittedly departed from it by failing to solicit
volunteers for the layoff. Either way, Respondent breached its duty to notify and bargain with
the Union. (As stated above, however, I do find that no past practice applied to temporary
layoffs lasting less than 30 days.)

Respondent asserts that it had to implement the layoff quickly, but it is unclear whether
the need for speed arose from sudden, unforeseeable conditions or from a lack of foresight.
Respondent bears the burden of proving that exigent circumstance excuse a bargaining obligation
and it has not carried that burden in this case.

In oral argument, Respondent cited Louisiana Dock Co., 293 NLRB 233 (1989) for the
proposition that

[W]here an Employer consistently follows past practice, has a de minimis impact on a
bargaining unit and does not refuse to discuss the lay–off, it should not be found to have
violated the Act. In this case, we did minimize the impact of the lay–off to the greatest
extent possible.

In this case, however, Respondent did not follow past practice and the record does not
establish that the layoff had a de minimis impact on the bargaining unit. Moreover, the facts in
Louisiana Dock Co. are distinguishable. In that case, the union refused to bargain with the
employer because of a dispute about the scope of the unit. The Board found that the union
“cannot be heard to protest the Respondent’s unilateral actions, inasmuch as it was the Union’s
own acts which foreclosed effective negotiations.” 293 NLRB at 235.

In the present case, the Union did not refuse to bargain. Rather, Respondent presented
the Union with a fait accompli.

Respondent clearly had a duty to notify and bargain with the Union concerning what
layoff practices should be adopted and how the layoff should be carried out. Tim Foley
Plumbing Service, 332 NLRB 1432, fn. 1 (2000), citing Garrett Flexible Products, 276 NLRB
704, 706 fn. 4 (1985). A layoff constitutes a material, substantial and significant change in the
most basic of working conditions, and it is clearly a mandatory subject of bargaining. I
recommend that the Board find that Respondent’s failure to notify and bargain with the Union
about the layoff and its effects violated Section 8(a)(5) of the Act.

Four other issues may warrant further discussion: (1) Whether Respondent met its
rebuttal burden under Wright Line, 251 NLRB 1083 (1980), (2) whether the Union waived its
right to be notified of and bargain about the decision to withhold the wage increase, (3) whether
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Respondent lawfully decided not to grant the July raises because of its assertedly poor financial
condition, and (4) whether Section 10(b) of the Act constitutes a bar.

Wright Line Issue
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In the bench decision, after determining that the General Counsel had proven the initial
four Wright Line elements. I further concluded that Respondent had not met its rebuttal burden
of showing that it would have taken the same action – withholding a periodic wage increase –
even in the absence of union activity.

The Board often applies Wright Line in analyzing an allegation that an employer
unlawfully discharged an employee. In such instances, the Board does not look to whether the
action might be justified under some arguably appropriate standard. Instead, the Board considers
whether the employer’s action is consistent with the way it had acted under similar
circumstances in the past. As the Board stated in Lampi LLC, 327 NLRB 222 (1998):

To establish an affirmative defense under Wright Line to a discriminatory discharge
allegation, an employer must do more than show that it had reasons that could warrant
discharging the employee in question. It must show by a preponderance of the evidence
that it would have done so even if the employee had not engaged in protected activities.

327 NLRB at 222–223 (italics in original).

To establish that it would have acted in a particular way (and not just that it might have),
an employer must go beyond generalities. As the Board continued in Lampi LLC:

In assessing whether the Respondent has established this defense regarding [the alleged
discriminatee’s] discharge, we do not rely on our views of what conduct should merit
discharge. Rather we look to the Respondent’s own documentation regarding [the alleged
discriminatee’s] conduct, to its “Personnel Policy” handbook, and to the evidence of how
it treated other employees with recorded incidents of discipline.

327 NLRB at 223.

Although Lampi LLC concerned a discharge, a similar principle applies when using the
Wright Line framework to evaluate other adverse employment actions. Respondent must
establish by a preponderance of the evidence that it would not have granted a July 2003 wage
increase in any event, and the most persuasive evidence would focus on other instances in which
it had a history of giving annual wage increases but decided, for economic reasons, to forego
such an increase in a particular year.

The vice president of labor relations for Respondent’s parent company did not testify.
That official, Robert Schlosberg, was in Canada on other business at the time of the hearing, and
I do not draw any adverse inference from his absence from the witness stand. During the
hearing, counsel entered into a lengthy stipulation concerning the testimony that Schlosberg
would have given if he had been present. That stipulation included the following:

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Mr. Schlosberg would testify that wage increases at General Cable facilities are not
guaranteed but are made with consideration to the plant’s financial status and to general
industry conditions, among other things. That being said, Mr. Schlosberg would
acknowledge that in the past, across–the–board wage increases were given to bargaining
unit employees at the Marshall facility generally in or around July of each year. 5
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That being said, in 2003 the wire and cable industry in general and the Marshall facility
in particular were in a distressed economic state. The company’s financial difficulties
were reflected in memoranda dated from June of 2002 and January 2003 from the parent
company’s CEO Gregory B. Kenny, which among other things indicated that
compensation of salaried associates would be frozen and that matches of salaried
employees’ 401(k) contributions would not be made.

Mr. Schlosberg, consistent with the financial state of General Cable at the time (the time
being the 2002–2003 time frame) effectively recommended where possible lump sum pay
increases in lieu of across–the–board wage increases at unionized facilities and at non–
union facilities.

Mr. Schlosberg was the lead negotiator in collective–bargaining negotiations between the
Charging Party and Respondent. Since the certification of the Charging Party, which is
reflected in the consolidated complaint, the parties have met and conducted collective–
bargaining negotiations on more than 30 days.

At the beginning of those negotiations in April 2003, the parties agreed to negotiate non–
economic terms first. This agreement was confirmed in a letter from Charging Party’s
lead negotiator, Dennis Keys, to plant manager Jeffrey Kitchen, dated June 19, 2003. It
was later reconfirmed in a posting made by Charging Party to bargaining unit employees
on or about September 28, 2003. Both parties – the Charging Party and Respondent –
acted consistently with this agreement and neither Charging Party nor Respondent ever
made any proposal for wage increases for bargaining unit employees.

During these negotiations for an initial collective–bargaining agreement, any time a party
raised an economic matter, the parties agreed to defer it, pursuant to their agreement,
until the non–economic issues had been resolved. At no time did the parties discuss wage
proposals.

At no point in 2003 did the Company implement a wage increase.

Based on this stipulation, I find that in 2003, Respondent did not make contributions to
the 401(k) plans of salaried employees and also did not increase their salaries. It is less clear
what conclusion should be drawn from the stipulation that Schlosberg “effectively recommended
where possible lump sum pay increases in lieu of across–the–board wage increases at unionized
facilities and at non–union facilities.”

The words “effectively recommended” indicate that Respondent followed Schlosberg’s
recommendation and decided not to grant annual wage increases to hourly employees in 2003.
However, in the absence of documentation or testimony regarding what actually happened at
Respondent’s other plants, I am reluctant to conclude that Respondent simply didn’t give an
hourly increase to any of its employees in 2003.

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The stipulation included, without elaboration, the words “where possible.” Those words
suggest that Respondent may have found it impossible to deny a 2003 wage increase to certain of
its employees at some location. Perhaps a union represented these employees and declined to
agree to a wage freeze, but it would be imprudent to rely on such speculation rather than specific
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In sum, the stipulation leaves open the possibility that Respondent did not treat all of its
hourly employees the same way in 2003. Therefore, by itself, the stipulation falls short of
establishing that Respondent would have denied, and not merely could have denied, a 2003 wage
increase to its Scottsdale, Texas employees.

However, the stipulation should not be viewed in isolation but in conjunction with other
evidence about Respondent’s financial condition in the summer of 2003 and the effects of those
problems on its decisions to grant or withhold wage increases. In oral argument, Respondent
cited the testimony of Plant Manager Kitchen that “he was $2.2 million behind budget, who was
facing a $2.3–million increase in supplier costs and who was looking at over a $1–million
variance in sales.” In view of these conditions, Respondent’s counsel asserted, “there was only
one sane business decision to make, and that is: No increase, unhappily.”

In effect, Respondent is raising a sanity defense: Because it was sane, it had to withhold
any wage increase. This argument certainly does carry some force.

The Board, however, does not look to whether an allegedly discriminatory act was, in its
opinion, sane or even prudent. For example, when the alleged discrimination involves a
termination, the Board does not rely on its own views of what conduct should merit discharge.
Rather, it looks to the respondent’s documentation and to how the respondent acted in similar
situations. Lampi LLC, above. The same principle applies when the alleged discrimination
involves failure to grant an established, periodic wage increase. The test does not concern
whether Respondent acted rationally but whether it acted consistently.

By proving that it has acted in such a consistent manner, a respondent demonstrates that it
would have, and not merely could have (or should have), taken the same action even in the
absence of protected activity. In the present case, I conclude that Respondent’s evidence fails to
carry this burden. Therefore, I further conclude that Respondent has not rebutted the General
Counsel’s case.

Finally, it may be noted that this Wright Line analysis only pertains to the allegation that
by withholding the wage increase, Respondent discriminated in violation of Section 8(a)(3).
Even had I concluded that Respondent’s rebuttal defense prevailed, it would not affect my
conclusion that withholding the wage increase without notifying and bargaining with the Union
violated Section 8(a)(5). See Bryant & Stratton Business Institute, 321 NLRB 1007, fn. 4
(1996)(“In light of our finding that the wage freeze violated Section 8(a)(5), we find it
unnecessary to pass on the judge’s alternative finding that the wage freeze also violated Section
8(a)(3) as that finding would not materially affect the remedy.”)
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Did Respondent Depart from Past Practice?

As discussed in the bench decision, the record convincingly demonstrates that
Respondent had a well–established practice of granting a wage increase each July. (Indeed, at
one point during oral argument, Respondent’s counsel referred to these annual raises as a
“distinct recurring event.”) The clearly regular and predictable nature of the July wage increases
distinguishes this case from American Mirror, 269 NLRB 1091 (1984), cited by Respondent.
See Daily News of Los Angeles, 315 NLRB 1236, 1240–1241 (1994).
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Additionally, Respondent stipulated that “at no point in 2003” did it grant the employees
a wage increase. Nonetheless, Respondent asserts that its action was in keeping with the past
practice. This argument rests on how the past practice is defined.

According to Respondent, the past practice actually consisted of a two–step process.
First, management reviewed Respondent’s financial condition and decided, based on this
information, how large a raise would be justified. Second, Respondent adjusted the employees’
pay rates accordingly.

Respondent contends that its financial condition was poor in 2003 and warranted
management’s decision not to give a raise. This outcome only signifies that economic
circumstances had changed, Respondent argues, not that management failed to follow the
established procedure.

The record provides some support for Respondent’s position that the past practice
consisted of two steps. As discussed in the bench decision, Respondent’s employee handbook
stated “The goal is to give annual increases provided there are favorable business conditions and
plant performance. . .” (Emphasis added)

However, when asked if he considered giving the July 2003 wage increase, Plant
Manager Kitchen answered “no.” Even accepting Respondent’s argument that the past practice
consisted of two steps, I find that in 2003, Respondent did not take either step.

Moreover, Kitchen identified the “foremost” reason for not granting a wage increase as
“the agreement that we would not negotiate economics.” (This “agreement” and its effect will be
discussed below under the “Waiver” heading.) Although Kitchen went on to mention
Respondent’s financial condition, he did not cite this problem as the main reason for granting no
wage increase.

To the contrary, I find that Respondent’s reliance on the supposed “agreement” with the
Union is the “but for” factor. Because of this “agreement,” management didn’t even begin the
process of deciding what sort of raise would be appropriate under the existing economic
conditions. However, as discussed more fully below, this “agreement” did not relieve
Respondent of the obligation to notify and bargain with the Union before discontinuing the
annual wage increase.

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In extreme cases, a Respondent’s financial plight can create an exception to the principle
that an employer may not change terms and conditions of employment which are mandatory
subjects of bargaining without first notifying and bargaining with the employees’ exclusive
representative. However, the Board recognizes as such “compelling economic conditions” only
“extraordinary, unforeseen events having a major economic effect that requires the employer to
take immediate action.” Mackie Automotive Systems, above, 336 NLRB at 349, citing Maple
Grove Health Care Center, 330 NLRB 775, 776 (2000); Hankins Lumber Co., 316 NLRB 837,
838 (1995).
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The record does not establish such a dire situation in this case. Therefore, I conclude that
Respondent’s withholding of the July 2003 pay increase violated Section 8(a)(5) and (1) of the
Act.

Respondent’s Waiver Argument

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Respondent asserts that its decision to withhold the July 2003 wage increase did not
violate Section 8(a)(5) because the Union had waived its right to bargain about the issue. More
specifically, Respondent asserts that during negotiations for an initial collective–bargaining
agreement, the parties agreed to bargain about noneconomic terms first before reaching the
presumably more difficult economic issues. Respondent contends that by entering into this
agreement, the Union waived its right to bargain about the annual July wage increase which
Respondent did not give in 2003.

In general, an employer may not withhold such an established wage increase without first
notifying and bargaining with the employees’ exclusive bargaining representative. An even
more stringent rule applies when the employer and union are negotiating a contract. As the
Board stated in Stone Container Corp., 313 NLRB 336 (1993):

[W]hen parties are engaged in negotiations for a collective–bargaining agreement, an
employer’s obligation to refrain from unilaterally discontinuing an established practice
extends beyond the mere duty to give notice and an opportunity to bargain; rather, except
for certain circumstances not present here, it encompasses a duty to refrain from
implementation at all, unless and until an overall impasse has been reached on bargaining
for the agreement as a whole.

313 NLRB at 336, citing Bottom Line Enterprises, 302 NLRB 373 (1991). The two exceptions
to this principle arise if (1) economic exigencies compel prompt action, or (2) in response to an
employer’s diligent and earnest efforts to engage in bargaining, the union insists on continually
avoiding or delaying bargaining. See Register–Guard, 339 NLRB No. 47, slip op. at 2 (June 20,
2003); Mackie Automotive Systems, 336 NLRB 347, 349 (2001). Respondent’s waiver
argument does not invoke either exception.

Respondent bears the burden of proving that the Union waived its right to bargain, and
this burden is significant. The Board will not lightly infer waivers of statutory rights. In
Rockwell International Corp., 260 NLRB 1346, 1347 fn.6, the Board stated:

Where, as here, an employer relies on a purported waiver to establish it freedom
unilaterally to change terms and conditions of employment not contained in the
contract, the matter at issue must have been fully discussed and consciously explored
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during negotiations and the union must have consciously yielded or clearly and
unmistakenly waived its interest in the matter.

See also Gannett Co., 333 NLRB 355 (2001).
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This prerequisite to a waiver – that the union and employer had fully discussed and
consciously explored the subject – serves an important purpose. It assures that the union knew it
was waiving the right and intended to do so.

Respondent does not claim that it notified the Union in advance that it planned to
withhold the July 2003 wage increases and the record would not support such a contention.
Indeed, Plant Manager Kitchen admitted that Respondent did not notify the Union of its intention
not to grant the raise.

Rather, the Respondent bases its waiver argument on an agreement which does not even
mention the annual raises. This understanding concerned the procedure the negotiators would
follow during bargaining: They would reach agreement on noneconomic terms before tackling
the presumably more difficult economic issues.

Before the Union could waive its right to bargain about Respondent’s plan to withhold
the annual July wage increases, its negotiators and the Respondent’s representatives must have
fully discussed and consciously explored this specific issue. A discussion about a different
matter, the procedure to be followed while negotiating a contract, does not suffice.

When representatives of Respondent and the Union were talking about how to make the
bargaining process more efficient – by focusing on the presumably easier issues first –
Respondent’s negotiators easily could have said, “You know, if you agree to this procedure it
will mean that we won’t be giving raises in July.” Such candor would have set the stage for full
discussion and conscious exploration. But Respondent didn’t do that.

The principle of bargaining in good faith does not contemplate that one side will set
snares and pitfalls for the other. To the contrary, it assumes that negotiators will say what they
mean. To adopt Respondent’s waiver argument would require me to find that the Union agreed
to something Respondent never said. It would turn the serious, important process of collective
bargaining into a game of “Gotcha.”

To carry its burden of proving that the Union waived its right to bargain about the annual
July wage increase, Respondent must establish that it had fully discussed and consciously
explored this issue with the Union. The record does not reflect such a discussion and I conclude
that it did not take place. Therefore, I reject Respondent’s claim of waiver.

Section 10(b) Defense

Section 10(b) of the Act provides, in part, that “no complaint shall issue based upon any
unfair labor practice occurring more than six months prior to the filing of the charge with the
Board and the service of a copy thereof upon the person against whom such charge is made. . .”
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29 U.S.C. § 160(b). Respondent has invoked this provision in defending against the allegations
that it unlawfully withheld a wage increase in July 2003.

In oral argument, Respondent’s counsel stated, in part, “This wage increase was due July
1. They [the Union] didn’t file a charge until December 8.” This argument’s biggest enemy is
arithmetic. Only five months and one week elapse between July 1 and December 8.
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The General Counsel submitted a memorandum which summarized the facts as follows:

The Charge filed on 12/8/03 alleged that since about July 1, 2003 Respondent violated
Section 8(a)(5) by unilaterally abandoning it[s] practice of granting annual wage
increases. The Amended charge alleging this same conduct violated Section 8(a)(3) was
filed on 1/21/2004. Thus, the six–month period on the first charge runs from June 7,
2003 to December 8, 2003. The six–month period on the amended charge runs from July
20, 2003 to January 21, 2004.

The General Counsel’s calculation may be off by one day with respect to the initial
charge. Six months before December 8, 2003 would be June 8, 2003, rather than June 7, 2003,
but in this instance, the difference of one day does not affect the outcome. Because the wage
increase would have taken place on July 1, 2003, and because Respondent made no earlier
announcement that it would not be granting this annual raise, it is clear that the “triggering date”
was less than six months before the December 8, 2003 filing of the Section 8(a)(5) charge.
Therefore, the statute of limitations does not bar the 8(a)(5) allegations.

On the other hand, the Union did not charge an 8(a)(3) violation until January 21, 2004,
presumably more than 6 months after Respondent denied the July 2003 annual wage increase. If
applying the statute of limitations simply meant counting back 6 months on the calendar, the
8(a)(3) allegations would be barred. However, applying Section 10(b) is more complicated than
that.

The 8(a)(3) allegations would not be barred if they fall within the Board’s “closely
related” doctrine. In Redd–I, Inc., 290 NLRB 1115 (1988), the Board held that in determining
whether complaint allegations are closely related to a timely unfair labor practice charge (and
therefore not time barred). it would examine whether the complaint allegations involve the same
legal theory as the allegations in the charge, whether the complaint allegations arise from the
same factual situation or sequence of events as the allegations in the charge, and whether a
respondent would raise the same or similar defenses to the complaint allegations as it would have
raised to the allegations in the charge. See also Nickles Bakery of Indiana, 296 NLRB 927, 928
(1989); EPI Construction, 336 NLRB 234 (September 28, 2001); Visiting Nurse Services of
Western Massachusetts, Inc., 325 NLRB 1125 (July 20, 1998).

Even though the 8(a)(3) and 8(a)(5) legal theories are somewhat different, Respondent
would present similar, albeit not identical, defenses to the two allegations. Moreover, the Board
generally applies the “closely related” doctrine to acts that are part of the same course of
conduct. See Ross Stores, Inc.. 329 NLRB 573–774 (1999), citing NLRB v. Central Power &
Light Co., 425 F.2d 1318, 1321 (5th Cir. 1970). Here, the 8(a)(3) and 8(a)(5) allegations arise
out of the very same act, namely, the withholding of the wage increase. Therefore, I conclude
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that the Section 8(a)(3) allegations are closely related to the timely Section 8(a)(5) allegations
and are not barred by Section 10(b) of the Act.

Additionally, as the General Counsel’s brief also points out, another factor must be
considered in determining when the 6–month period begins to run. When the allegation
concerns a unilateral change in a mandatory subject of collective bargaining, the 10(b) period
does not begin to run until the union has clear and unequivocal notice of the change. CAB
Associates, 340 NLRB No. 171, slip op. at 2 (December 31, 2003). See also Register–Guard,
above, 339 NLRB No. 47, slip op. at 4, citing Leach Corp., 312 NLRB 990, 991 (1993), enfd. 54
F.3d 802 (D.C. Cir. 1995). Clear and unequivocal constructive notice will suffice. Concourse
Nursing Home, 328 NLRB 692, 694 (1999).
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Respondent, having raised the 10(b) defense, bears the burden of proving that the Union
had such clear and unequivocal notice. See Dynatron/Bondo Corp., 324 NLRB 572, 573
(1997), citing Chinese American Planning Council, 307 NLRB 410 (1992). However,
Respondent does not contend that it notified the Union of its intention before making the change,
and the record would not support such a claim. Therefore, if the Union received such notice, it
came from some other source. In oral argument, Respondent’s counsel suggested a way in
which the Union might have received the necessary notice:

We think they [the Union] had notice that it [the wage increase] wasn’t going to occur.
We think they had notice. Based on the testimony of the bargaining unit employee of his
conversations with two supervisors, which were clearly non–coercive, by the way, Your
Honor, we think the Union had actual notice prior to July 1, because this individual said
that he told Mr. Ragster in June about that.

In other words, Respondent argues that a supervisor told a bargaining unit employee that
the company would not be giving a raise and this employee conveyed the information to Jerry
Ragster, who is temporary chairman of the Union’s bargaining committee. Further, Respondent
contends that the bargaining unit employee provided this information to Ragster some time
before July 1, 2003.

As discussed above, June 8, 2003, not July 1, 2003, is six months before the filing of the
initial charge. Therefore, to bar litigation of the 8(a)(5) allegation, Respondent must show that at
some time before June 8, 2003, the Union had clear and unequivocal knowledge of Respondent’s
decision to withhold the July 2003 wage increase.

Respondent identified the bargaining unit employee as Allen Parker, who testified that
during an employee safety meeting in June 2003 he asked Johnny Cole, “Are we going to get our
usual raise in July?” For reasons discussed in the bench decision, I have credited Parker’s
testimony that Cole answered “no, we were not, and as long as the company was in negotiations
with the union, the company could not change anything.”

The record establishes that Cole is a supervisor within the meaning of Section 2(11) of
the Act. Therefore, his statement to Parker is attributable to Respondent.

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Parker further testified that a few days later, he posed the same question to John Ritter,
whom Parker identified as “another supervisor.” According to Parker, Ritter replied that the
employees would not be getting a raise “because the company is in negotiations, and they could
not change anything while we’re in negotiations.” Although I credit Parker’s testimony, I do not
attribute Ritter’s statement to Respondent because the record does not establish Ritter’s
supervisory status.
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In any event, through his conversation with Cole, Parker received notice in June 2003
that Respondent would not be raising wages in July. However, Parker is not a Union official,
and information given to him does not constitute notice to the Union.

Respondent seeks to overcome this problem with evidence that Parker conveyed the
information to Jerry Ragster. Because Ragster was chairman of the Union’s bargaining
committee, notice to him presumably would constitute notice to the Union.

Both Parker and Ragster confirm that Parker passed along the “no raise” information to
Ragster, but the record does not establish when they discussed the matter. Ragster’s testimony
does indicate that he and Parker had this conversation some time in June 2003:

Q And you were here yesterday and you heard Mr. Parker testify that he went and
told you that he had heard from two supervisors that he wasn’t going to get a
raise. Correct?
A Yes.
Q Was Mr. Parker’s testimony on that accurate?
A Yes.
Q So as of June, you were pretty much aware on your own behalf and for Mr.
Parker, that the Company was not going to give a raise.
A Yes.

With respect to the 8(a)(5) charge, to prevail on the 10(b) defense, Respondent must
show that the Union had clear and unequivocal notice before June 8, 2003. Even though I credit
Ragster’s testimony, quoted above, it falls short of establishing that the Union had any notice at
all before June 8. “As of June” just isn’t specific enough to carry Respondent’s burden of proof.

It may also be noted that Ragster’s testimony is too vague to satisfy the requirement that
notice of the unilateral change must be clear and unequivocal. Being “pretty much aware” is not
the same thing as being “aware” or “fully aware.” Otherwise, the qualifying words “pretty
much” would serve no purpose.

It is true that being “pretty much aware” of the unilateral change might have triggered the
Union’s duty to exercise reasonable diligence by investigating the situation. Thus, it raises a
possibility that at some point in June 2003, the Union had constructive notice of the unilateral
change. However, because Respondent has not established a more precise date, it has failed to
prove that the Union had constructive notice outside the 10(b) period.

Respondent further contends that Ragster should have inferred that there would be no
raise. In June, Respondent customarily posted a notice informing employees how much the July
raise would be, but Respondent did not post such a notice in June 2003. Respondent argues that
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when Ragster saw no notice, he should have been aware that management had decided not to
give a raise in July.

At the outset, it may be noted that the record does not establish that Ragster would have
expected Respondent to post the wage notice before June 8, 2003. Similarly, there is no reason
to conclude that Ragster reasonably would have become suspicious if he did not see such a wage
announcement before June 8. Respondent has failed to carry its burden of proof on this issue.
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Moreover, Respondent’s argument fails to take into account some unusual circumstances.
On June 18, 2003, management decided that a temporary layoff was needed because the plant
had produced too much low voltage cable. Respondent announced this layoff to employees on
June 19, 2003 and began implementing it on June 22. Respondent characterized this layoff as
temporary, and the laid off employees had good reason to expect to be recalled after the
company reduced its overstock of cable.

In these circumstances, the absence of a wage announcement on the bulletin board would
not signal that Respondent had decided to withhold the annual wage increase. It would be
equally reasonable for the Union to conclude that the managers had their hands full with the
layoff and would prepare the wage announcement later. Considering that the absence of a wage
posting could be explained plausibly in more than one way, very little reasonably could be
inferred from the absence of such a notice.

Before Respondent withheld the July 2003 wage increase, nothing placed the Union on
clear and unequivocal actual notice that Respondent intended to make this change. In
concluding that the Union also did not have clear and unequivocal constructive notice, I follow
the settled standard which the Board recently reiterated:

“In determining whether a party was on constructive notice, the inquiry is whether that
party should have become aware of a violation in the exercise of reasonable diligence.”
[Citing CAB Associates, 340 NLRB No. 171, slip op. at 2 (2003).] It is well settled that
the burden of proving a 10(b) defense rests on the party asserting it. See Nursing Center
of Vineland, 318 NLRB 337, 339 (1995).

St. George Warehouse, Inc., 341 NLRB No. 120, slip at 2 (May 12, 2004). See also Paul
Mueller Co., 337 NLRB 764, 765 (2002)(“The Respondent had the burden of showing that the
Union knew or should have known [about the unilateral change] prior to the 10(b) period. . .”)

For the reasons discussed above, I conclude that Respondent has not carried its burden of
showing that the Union had either actual or constructive notice of the unilateral change before
June 8, 2003. Therefore, I reject Respondent’s Section 10(b) defense.

REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act, including posting the notice to employees attached hereto as
Appendix B.
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Employees must be made whole for the wage increase which Respondent unlawfully
denied them in July 2003. (As stated above, the remedy for the unlawfully withheld increase is
the same whether applied under a Section 8(a)(3) or 8(a)(5) theory. Bryant & Stratton Business
Institute, 321 NLRB 1007, fn. 4 (1996.) 5
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Although the testimony established that Respondent customarily granted an annual wage
increase averaging somewhere in the 3 to 3–1/2 percent range, the amount of the wage increase
varied somewhat from year to year and also occasionally varied depending upon job
classification. Therefore, I recommend that the exact amounts of backpay be determined, if
necessary, at the compliance stage.

Respondent unilaterally changed the procedure it had adopted for laying off employees,
then selected employees for layoff and laid them off without first notifying and bargaining with
the Union about the change and its effects. This violation of Section 8(a)(5) and (1) must be
remedied.

Under Lapeer Foundry & Machine, 289 NLRB 952, 955–956 (1988), “the traditional
and appropriate Board remedy for an unlawful unilateral layoff based on legitimate economic
concerns includes ordering the employer to bargain over the layoff decision and the effects of
that decision, reinstating the laid–off employees, and requiring the payment to the laid–off
employees of full backpay, plus interest, for the duration of the layoff.” Ebenezer Rail Car
Services, Inc., 333 NLRB 167, fn. 5 (2001).

In the present case, Respondent has recalled all the employees affected by the layoff, so a
reinstatement order isn’t necessary. However, I recommend that the Board order Respondent to
bargain with the Union concerning the layoff and its effects, and to pay each employee affected
by the layoff full backpay, with interest, for the duration of the employee’s layoff.

During oral argument, Respondent alluded to a remedy similar to that in Transmarine
Corp., 170 NLRB 389 (1968). In the circumstances of this case, however, the remedy described
in Lapeer Foundry & Machine is more appropriate.

The Board certified the Union as the employees’ exclusive bargaining representative on
March 12, 2003. Because Respondent unlawfully made unilateral changes during the Union’s
certification year, a question arises regarding the appropriate remedy. Should it include an
extension of the certification year?

The General Counsel has not contended, and the record does not establish, that
Respondent failed to recognize, meet, or bargain with the Union. Additionally, the evidence
does not indicate that the unilateral changes seriously tainted or impeded the bargaining process.
Therefore, I do not recommend that the certification year be extended. See Visiting Nurse
Services of Western Massachusetts, Inc., 325 NLRB 1125, 1132 (1998).
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CONCLUSIONS OF LAW

1. The Respondent, General Cable Texas Operations Limited Partnership, is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 5
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2. The Charging Party, International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America – UAW, is a labor organization within the meaning
of Section 2(5) of the Act.

3. The Respondent violated Section 8(a)(1) of the Act by telling employees that they
would not receive an annual wage increase because Respondent was negotiating with the Union,
by withholding this annual wage increase in July 2003 because employees had selected the
Union as their collective-bargaining representative, by withholding this wage increase without
first notifying and bargaining with the Union, and by unilaterally changing its layoff criteria and
using the new criteria to select employees for layoff without first notifying and bargaining with
the Union,

4. The Respondent violated Section 8(a)(3) of the Act by withholding an annual
wage increase in July 2003 because employees had selected the Union as their collective–
bargaining representative.

5. The Respondent violated Section 8(a)(5) of the Act by making the following
unilateral changes in wages, hours, and other terms and conditions of employment which are
mandatory subjects of collective bargaining without first notifying and bargaining about these
changes and their effects with the Union which had been certified as the employees’ exclusive
bargaining representative: (1) Withholding an annual wage increase in July 2003; (2) changing
its procedure for selecting employees for layoff about June 18, 2003, applying the changed
procedure to select employees for layoff, and then laying off those employees beginning June 22,
2003.

6. The unfair labor practices described above in paragraphs 3, 4 and 5 are unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.

7. The Respondent did not engage in the unfair labor practices alleged in the
consolidated complaint not specifically found herein.

On the findings of fact and conclusions of law herein, and on the entire record in this
case, I issue the following recommended2

2 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these
findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed waived for all purposes.
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ORDER

The Respondent, General Cable Texas Operations Limited Partnership, its officers,
agents, successors, and assigns, shall 5
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1. Cease and desist from:

(a) Threatening employees that they would lose an annual wage increase
because the Union was negotiating on their behalf for a collective–bargaining agreement.

(b) Discriminating against employees by denying them an annual wage
increase because the Union they had selected was negotiating on their behalf for a collective–
bargaining agreement, or otherwise because of their protected, concerted activities.

(c) Unilaterally changing its past practice of granting annual wage increases
in July without first notifying and bargaining with the Union concerning such a change and its
effects.

(d) Unilaterally changing its past practice of selecting employees for layoff,
applying this changed procedure to select employees for layoff, and laying off these employees
without first notifying and bargaining with the Union concerning such changes and their effects.

(e) In any like or related manner interfering with, restraining or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the
Act.

(a) Make all bargaining unit employees who were employed by Respondent
on July 1, 2003 whole, with interest, for all losses they suffered because Respondent withheld
their July 2003 annual wage increases.

(b) Make all bargaining unit employees whom Respondent laid off at any time
between June 19 and June 26, 2003 whole, with interest, for all losses of wages and benefits they
suffered because of the layoff.3

(c) Restore all terms and conditions of employment affected by the unilateral
changes described above in paragraph 5 of the Conclusions of Law to the status quo existing
before the unilateral changes.

3 All backpay shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987).
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(d) On request, bargain in good faith with the Union concerning the
mandatory subjects of bargaining affected by the unilateral changes described above in
paragraph 5 of the Conclusions of Law.

(e) Preserve and, on request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary to analyze the amount of backpay
due under the terms of this Order.
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(f) Within 14 days after service by the Region, post at its facilities in
Scottsville, Texas, copies of the attached notice marked “Appendix A.”4 Copies of the notice, on
forms provided by the Regional Director for Region 16, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent has gone out of business or closed the
facility 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 June 18, 2003.

(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 Regional Director
attesting to the steps that the Respondent has taken to comply.

Dated Washington, D.C.

___________________________________
Keltner W. Locke
Administrative Law Judge

4 If this Order is enforced by a judgment of the 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.”
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APPENDIX A

BENCH DECISION

5 This decision is issued pursuant to Section 102.35(a)(10) and Section 102.45 of the
Board’s Rules and Regulations. Except for one 8(a)(1) allegation, I find that Respondent
violated Sections 8(a)(1), (3) and (5) of the Act, as alleged in the Complaint.

Procedural History 10
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This case began on August 18, 2003, when the Charging Party filed its initial charge
against Respondent in Case 16–CA–23012. The Charging Party is the International Union,
United Automobile, Aerospace & Agricultural Implement Workers of America – UAW. For
brevity, I will refer to this labor organization simply as the “Charging Party,” the “Union,” or the
“UAW.” The parties stipulated at hearing that Respondent’s correct name is General Cable
Texas Operations Limited Partnership. For brevity, I will refer to this employer simply as
“Respondent.”

On December 8, 2003, the Union filed a charge against Respondent in Case 16–CA–
23279. The Union amended this charge on January 21, 2004.

On January 28, 2004, after investigation of the charges, the Regional Director for Region
16 of the National Labor Relations Board issued an Order Consolidating Cases, Consolidated
Complaint and Notice of Hearing, which I will call the “Complaint,” and Respondent filed a
timely Answer. In issuing the Complaint, the Regional Director acted on behalf of the General
Counsel of the Board, whom I will refer to as the “General Counsel” or as the “government.”

On April 28, 2004, a hearing opened before me in Marshall, Texas. On that day and the
next, the parties presented evidence. The General Counsel and Respondent also submitted briefs.

Today, April 30, 2004, counsel presented oral argument. After a recess to consider these
matters, I am issuing this bench decision.

Admitted Allegations35
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Based on the admissions in Respondent’s Answer and on the stipulations received during
the hearing, I find that the government has proven the allegations raised in Complaint paragraphs
1(a), 1(b), 1(c), 2, 3, 4, 5, 8, 9, and portions of Complaint paragraph 6.

More specifically, I find that the Charging Party filed and served the charges as alleged.

Also, I find that Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act, and therefore is subject to the Board’s jurisdiction. Further, I
find that at all material times, Plant Manager Jeffrey Kitchen and Human Resources Manager
Victoria Jackson were Respondent’s supervisors and agents within the meaning of Sections 2(11)
and 2(13) of the Act, respectively. Also, I find that at all material times, Foreman Johnnie Cole
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was Respondent’s supervisor within the meaning of Section 2(11) of the Act and Director of
Security William Anthony was Respondent’s agent within the meaning of Section 2(13) of the
Act.

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Additionally, I find that at all material times, the Charging Party has been a labor
organization within the meaning of Section 2(5) of the Act and that on March 12, 2003, it was
certified as the exclusive collective bargaining representative in a unit appropriate for collective–
bargaining within the meaning of Section 9(b) of the Act. That unit, which I will call the “Unit,”
is as follows:

INCLUDED: All full–time and regular part–time production employees, including but
not limited to extrusion, bare mill and finishing operators, and maintenance employees,
including lab techs, compound operator–techs, electrical testers, shipping and receiving
employees, building–grounds techs, receiving/stores clerks, quality assurance tech clerks,
inventory clerk, plant clerks, and janitors employed by the Employer at its Scottsville,
Texas facility.

EXCLUDED: All other employees including office clerical employees, professional
employees, guards and supervisors as defined in the Act.

Although Respondent’s Answer does not admit all allegations in Complaint paragraph
10, that paragraph alleges a legal conclusion supported by Respondent’s admissions and not
contradicted by any evidence in the record. Therefore, I conclude that at all material times, the
Union, by virtue of Section 9(a) of the Act, has been and is the exclusive representative of the
Unit for the purpose of collective–bargaining with respect to rates of pay, wages, hours of
employment and other terms and conditions of employment.

Complaint paragraph 14 also alleges a legal conclusion, specifically, that the subjects
described in Complaint paragraphs 11 and 12 relate to wages, hours, and other terms and
conditions of employment of the Unit and are mandatory subjects for the purposes of collective
bargaining. These subjects are the layoff of employees and the criteria used to select employees
for layoff, and an annual wage increase. I conclude that the General Counsel has established that
these subjects are mandatory subjects for the purposes of collective bargaining. See First
National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981); Tri–Tech Services, Inc., 340
NLRB No. 97 (September 30, 2003) (“It is well established that the layoff of unit employees is a
change in terms and conditions of employment over which an employer must bargain. . .”).

Contested Allegations

Complaint Paragraph 7(a) 40
45

Complaint paragraph 7(a) alleges that about March 1, 2003, Respondent, by William
Anthony, at Respondent’s Scottsville, Texas facility, threatened its employees with discipline,
discharge, and/or other unspecified reprisals because they were wearing Union shirts.
Respondent has denied this allegation.

In considering this allegation, I must resolve a conflict between the testimony of
employee Larry Hill and that of Director of Security William Anthony. Hill testified that in
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early March 2003, he wore a Union t–shirt. According to Hill, Director of Security Anthony
stopped him while he was wearing this t–shirt, and asked, “Do you like your job?” Hill testified
that he replied, “Yeah, I’m having no problems with it.”

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In Hill’s version, Anthony then remarked that Hill was wearing a UAW shirt. When Hill
agreed, Anthony then said that a General Cable shirt’s colors were green and white. Hill then
explained he could not vote in the election because he was hired one day after the cutoff date.
Anthony said, “You might ought to think about what you wear.”

Anthony’s account is different. He testified that he heard some people laughing outside
his office. He stepped outside to join in and learned that they were talking about shirts.
Sometime during the conversation, Anthony remarked, “I prefer green t–shirts” and Hill began to
talk about the UAW shirt. Anthony responded, “I can’t go there” and walked back into his
office.

No other witnesses testified concerning this allegation. However, according to Hill,
another employee, named Washington, was present during the conversation. Anthony testified
that at least two other individuals were present, although he could not recall who they were.

The government’s failure to call a known witness raises the concern that this witness
would not have corroborated Hill. Therefore, I credit Anthony’s testimony instead of Hill’s.
Anthony’s testimony does not establish a violation of Section 8(a)(1), so I recommend that the
Board dismiss this allegation.

Complaint Paragraphs 7(b) and 7(c)

Complaint paragraph 7(b) alleges that about August 2003, the exact date being unknown,
Respondent, by Jeffrey Kitchen, at Respondent’s Scottsville, Texas facility, threatened
employees by telling them that they would not receive their cost–of–living wage increase
because the Respondent was negotiating with the Union. Complaint paragraph 7(c) alleges that
about August 2003, the exact date being unknown, Respondent, by Jeffrey Kitchen, at
Respondent’s Scottsville, Texas facility, threatened employees by telling them that they would
normally get a three–and–one–half percent increase in July, but that was not going to happen
because the Respondent was still negotiating with the Union. Respondent has denied these
allegations.

Employee George Anthony Harper testified that at an employee meeting, he asked Plant
Manager Kitchen whether the employees would be receiving a cost–of–living raise. According
to Harper, Kitchen replied that normally the employees would receive a 3–1/2 percent raise, but
this year they would not because they were in negotiations with the UAW. Based upon my
observations of the witnesses, I credit Harper’s testimony.

Additionally, I note that the parties have stipulated that at the beginning of negotiations,
the Respondent and the Union agreed to negotiate non–economic terms first, that at no time did
these parties discuss wage proposals, and that “at no point in 2003 did the Company implement a
wage increase.” Moreover, when the General Counsel questioned Kitchen during the hearing,
Kitchen’s testimony included the following:
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Q In fact, General Cable didn’t even think about wages in June or July of
2003 because of the agreement reflected in Joint Exhibit 2, is that right?
A Well, in terms of the increase, we first and foremost we had the
agreement that we would not negotiate economics and also with
consideration to, as we discussed, as was talked about earlier, financially,
our plant was upside down to a budget we had built, we were, at that
point in time, we were 2.6 million dollars behind our plan, our business
plan.
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Thus, in his testimony, Kitchen gave two reasons for no wage increase in 2003, but he
indicated the “foremost” reason was the agreement between Respondent and the Union to
negotiate non–economic terms first. The statement attributed to him by Harper is consistent with
this “foremost” reason.

A June 17, 2002 memo from Human Resources Manager Vicki Jackson to all Marshall
plant hourly associates announced a 3.5 percent wage increase in that year and stated “July is the
traditional time for you to receive an increase.” Moreover, employees credibly testified that
generally, and apart from 2003, they had received July wage increases in the 3 to 3–1/2 percent
range. This evidence is consistent with the statement attributed to Kitchen, that normally the
employees would have received a 3–1/2 percent increase but would not get one in 2003 because
Respondent was in negotiations with the UAW. For these reasons, I find that Kitchen did make
this statement.

The question remains, did the statement violate the Act? In the context of a union
organizing campaign, an employer’s statement that employees would not receive a scheduled
wage increase because of the union clearly violates Section 8(a)(1). See Seda Specialty
Packaging Corp., 324 NLRB 350 (1997); Webco Industries, 327 NLRB 172, 173
(1998)(“Although an employer is generally free to make critical comments about a union that is
seeking to organize its employees, it violates Section 8(a)(1) of the Act when it takes adverse
action against employees and falsely blames its action on the union.”).

In the present case, however, Kitchen did not make the statement in the context of an
organizing campaign. Rather, the Union already had been certified as the exclusive bargaining
representative and was negotiating with Respondent for an initial contract.

If the Union clearly had waived its right to bargain over the annual wage increase,
communicating that fact to employees would not interfere with, restrain or coerce them in the
exercise of their Section 7 rights. Conceivably, a labor organization might agree to eliminate a
scheduled wage increase as part of the union’s overall bargaining strategy. In such a
circumstance, an employer would not violate Section 8(a)(1) simply by explaining, in response
to an employee’s question, that “we didn’t give you the wage increase because the Union agreed
to forego it.”

On the other hand, if a union did not waive its right to negotiate concerning a scheduled
wage increase, an employer would not be telling the truth if it explained that it gave no wage
increase because of an “agreement” with the union. Instead, such an explanation would distort
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the facts in a way which unfairly placed responsibility on the union and thereby interfered with
the employees’ exercise of protected rights.

Therefore, whether or not Kitchen’s explanation violated Section 8(a)(1) turns on
whether the Union had agreed to give up the annual wage increase. For reasons discussed later
in this decision, I conclude that the Union did not agree to eliminate the July wage increase and
did not waive its right to bargain about this matter. Accordingly, I conclude that Kitchen’s
statement to the employee was not correct, and violated Section 8(a)(1) of the Act.
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Complaint Paragraph 7(d)

Complaint paragraph 7(d) alleges that about June 2003, the exact date being unknown,
Respondent, by Johnnie Cole, at Respondent’s Scottsville, Texas facility, threatened employees
by telling them that they would not receive their cost–of–living wage increase because the
Respondent was negotiating with the Union. Respondent has denied this allegation.

Allen Parker testified that during a safety meeting, he asked Supervisor Johnny Cole if
they were going to get a raise in July. Cole replied no, that as long as the company was in
negotiations with the Union, the company couldn’t change anything. Cole did not specifically
deny the statement which Parker attributed to him.

When Respondent’s counsel asked Cole whether he had had any conversation with any
nonmanagement employee regarding the “nonissuance” of a July wage increase, Cole answered,
“Not that I can recall.” This answer does not constitute a clear denial that he made the statement
attributed to him. Additionally, the question itself refers to a conversation with an employee, not
to answering a question during a meeting. I conclude that Parker’s testimony remains
uncontradicted, and I credit it.

For the same reasons that Kitchen’s explanation violates Section 8(a)(1) of the Act, so
does Cole’s. When employees selected the Union to represent them, they implicitly chose the
collective–bargaining process as the method of dealing with their employer concerning wages.
Incorrectly attributing the absence of a wage increase to this protected activity interferes with the
free exercise of Section 7 rights. Therefore, I recommend that the Board find that Respondent
violated Section 8(a)(1), as alleged in Complaint paragraph 7(d).

Complaint Paragraph 7(e)

The Complaint does not include a paragraph 7(e). However, at the close of oral
argument, the General Counsel moved to amend the Complaint by adding a paragraph 7(e)
which would state as follows: About June 2003, the exact date being unknown, Respondent, by
John Ritter, at Respondent’s Scottsville, Texas facility, threatened employees by telling them
that they would not receive their cost–of–living wage increase because the Respondent was
negotiating with the Union. Respondent did not object to this proposed amendment.

It appears that the General Counsel would support this allegation with the testimony of
Allen Parker that a few days after his conversation with Supervisor Cole, he encountered
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Supervisor John Ritter on the plant floor, asked Ritter the same question he had asked Cole, and
got the same answer.

Ritter did not testify. During the hearing, the parties stipulated that if he had been called
to the witness stand, “Mr. John Ritter, a supervisor of the 600 volt section, would testify the
same way that Mr. Cole testified.” Although this stipulation refers to Ritter as a “supervisor,”
there is no specific stipulation that Ritter was Respondent’s supervisor within the meaning of
Section 2(11) of the Act.
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Although the General Counsel argues that the allegation in the proposed Complaint
paragraph 7(e) has been “fully litigated,” I am not so sure. In any event, should I grant the
General Counsel’s motion and find a violation based upon the rather sparse record, it would add
nothing to the remedy in this matter. A remedy for the violations alleged in Complaint
paragraphs 7(b), 7(c) and 7(d) would also cover the new allegation. In these circumstances, I
deny the General Counsel’s motion to amend the Complaint.

Complaint Paragraph 11

Complaint paragraph 11 alleges that about June 18, 2003, Respondent unilaterally
changed its layoff criteria and used the new criteria to lay off approximately 46 employees.
Complaint paragraph 15 alleges that Respondent took this action without prior notice to the
Union and without affording the Union an opportunity to bargain with Respondent with respect
to this conduct and the effects of this conduct. Respondent has denied these allegations.

The record establishes without contradiction that on June 18, 2003, Respondent’s
management decided to lay off employees involved in producing low voltage cable. At hearing,
management officials testified that the plant already had produced too much of the low voltage
cable, so much, in fact, that it had to be stored in inappropriate places, and that there was an
urgent need to shut down this part of its operations quickly. Therefore, Respondent asserts,
management had no time to bargain with the Union before deciding upon who would be laid off
and implementing the lay off.

After making this decision on June 18, 2003, Human Resources Manager Victoria
Jackson and Plant Manager Jeff Kitchen used a speakerphone to try to contact the Union.
According to Jackson, they first tried to reach International Representative Dennis Keys, and
when they could not, contacted Jerry Ragster, an employee who is the temporary head of the
Union’s bargaining committee.

Kitchen told Ragster about the planned layoff, but did not offer to bargain about it.
Ragster requested that Kitchen fax him a list of employees to be affected by the layoff, and
Kitchen promptly did so. However, Respondent later made changes and, on June 19, 2003,
posted several notices in the plant to announce which employees would be laid off.

There is some question about whether the Union had authorized Ragster to receive
notifications from Respondent. However, it is clear that the Union knew about the layoff by
June 19, 2003, when International Representative Keys hand delivered a letter to Respondent.
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On this date, the parties were to have their first bargaining session, and Keys brought the letter to
this meeting and gave it to Plant Manager Kitchen.

The letter requested certain information about the layoff and then concluded with the
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Finally, the Union demands to bargain over the effects of the down turning business. If
you have questions, please feel free to call me at (318) 668–4020.

Respondent, focusing on the word “effects,” argues that the Union did not request to
bargain over the layoff decision but only concerning the effects of that decision. The General
Counsel disagrees. Keys did not ask to bargain about the effects of the layoff but about the
effects of the business downturn. One of those effects, the General Counsel contends, is the
layoff decision itself.

In agreement with the General Counsel, I conclude that the Union requested to bargain
about the decision as well as its effects. In any event, it soon became clear to Respondent that
the Union wanted to bargain about the decision as well as the effects, because members of the
Union’s negotiating committee challenged the method which management had used to select
employees for layoff.

The testimony of Human Resources Manager Jackson establishes that the parties had a
heated discussion regarding the layoff. One member of the Union’s negotiating team, Mr.
Owens, said that in selecting who would be laid off, management had not followed the procedure
set forth in its policy manual. He asked why management did not follow the policy. He also
protested that it was not fair for more senior employees to be laid off while some junior
employees remained at work.

Jackson, referring to the wording of the policy, maintained that it gave management the
freedom to ignore the specified procedures for any temporary layoff lasting less than 30 days.
According to Jackson, the Union committee member “interrupted a lot and didn’t understand
what we were saying.” According to Jackson, after 20 minutes the parties “agreed to disagree.”

Jackson testified that the subject came up again at the next bargaining session, and
suggested that the Union committee member was still upset. “Again, we tried to walk him
through it,” Jackson recalled, “and again got the same reaction.”

Respondent asserts that the Union did not press the matter. Union officials testified that
they did not pursue it further because they perceived it was a “done deal” and that Respondent
had no intention of bargaining about it. Indeed, by the second bargaining session, on April 24,
2003, Respondent already had implemented much of the layoff.

The General Counsel asserts that the Union did not have to continue to press the matter
because Respondent announced the layoff as a fait accompli. In agreeing with the General
Counsel, I rely not only on the Union witnesses’ conclusion that it was a “done deal,” but also on
the testimony of Human Resources Manager Jackson.

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Both from her words and demeanor, I formed the impression that Respondent’s
management had no intention of modifying its layoff scheme or even entering into negotiations
about it. Management appeared to be quite proud of how it had selected employees to minimize
the effect of the layoff on employees, and management negotiators may even have been
disappointed that the Union committee members did not appreciate the wisdom of what they had
accomplished.
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Jackson said that the Union did not ask Respondent to go back and redo the layoff,
adding “it was already in effect.” Additionally, Jackson admitted that management made the
layoff decision on June 18. Both these facts are consistent with the conclusion that the layoff
was a fait accompli.

Based upon the record as a whole, I find that the layoff was a fait accompli, and that the
Union did not have the duty to continue to request bargaining about it. The Union is not required
to do a futile act.

During the hearing, the parties devoted considerable time to the issue of whether or not
Respondent’s layoff scheme was consistent with Respondent’s past practice or departed from it.
That issue misses the point. Clearly, a layoff is a mandatory subject of bargaining and once the
Union became the exclusive bargaining representative, Respondent had a duty to notify and
bargain with it in advance.

The Union became the exclusive bargaining representative on March 12, 2003. So
clearly, in June 2003, Respondent had a duty to negotiate with it.

Additionally, I reject Respondent’s argument that there was an emergency situation
which required immediate action. The backlog had been accumulating for some time and
Respondent could have notified the Union earlier of its plan to lay off employees. This kind of
backlog does not present a situation so dire that an employer must act immediately without
regard to the Union representing its employees.

In sum, I find that Respondent violated Section 8(a)(5) and (1) by failing and refusing to
bargain with the Union over the June 2003 layoff and the procedures it adopted to select
employees for the layoff.

Complaint Paragraphs 12 and 13

Complaint paragraph 12 alleges that about July 2003, Respondent unilaterally withheld
an annual wage increase from all the Unit employees and that Respondent did so because the
Unit employees joined or assisted the Union and to discourage employees from engaging in these
activities. Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), the General Counsel must establish four elements by a
preponderance of the evidence. First, the government must show the existence of activity
protected by the Act. Second, the government must prove that Respondent was aware that the
employees had engaged in such activity. Third, the General Counsel must show that the alleged
discriminatees suffered an adverse employment action. Fourth, the government must establish a
link, or nexus, between the employees’ protected activity and the adverse employment action.
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In effect, proving these four elements creates a presumption that the adverse employment
action violated the Act. To rebut such a presumption, the respondent bears the burden of
showing that the same action would have taken place even in the absence of the protected
conduct. Wright Line, 251 NLRB 1083, at 1089. See also Manno Electric, Inc., 321 NLRB
278, 280 at fn. 12 (1996).
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The record establishes that the Unit employees engaged in the protected activity of
selecting the Union to represent them, and that Respondent knew it.

The record convincingly shows that Respondent had an established practice of granting a
wage increase of 3 to 3–1/2 percent each July, but did not do so in 2003. I conclude that the
failure to grant this periodic wage increase constitutes an adverse employment action.

The statements of Plant Manager Kitchen – that employees would not receive a wage
increase because of the negotiations with the Union – establish the link between the employees’
protected activity and the adverse employment. Therefore, I conclude that the General Counsel
has established the initial four Wright Line elements and that the burden shifted to Respondent
to show that it would have taken the same action even in the absence of protected activity.

Further, I conclude that Respondent has not carried this burden. Therefore, I conclude
that the government has proven the 8(a)(3) violation alleged in Complaint Paragraphs 12 and 13.

Respondent contends that the 6–month statute of limitations inherent in Section 10(b) of
the Act bars finding a Section 8(a)(3) violation. The employees would have received the wage
increase some time in July 2003, but the Union did not file a charge alleging this violation until
December 8, 2003, which is more than 6 months.

I begin this analysis by noting that Section 10(b) is an affirmative defense. Respondent
bears the burden of proving all elements needed to establish this defense.

The General Counsel argues that Respondent has not established that the Charging Party
received notice that Respondent was not granting the wage increase more than 6 months before
the filing of the charge. The record does not establish precisely when either the employees or the
Union knew, or reasonably should have known, that Respondent was not granting its annual
wage increase in July 2003. Therefore, I conclude that Respondent has not carried its burden
and reject the Section 10(b) defense.

Complaint Paragraphs 12 and 15

Complaint paragraphs 12 and 15, read together, allege that Respondent withheld the
annual July wage increase without prior notice to the Union and without affording the Union an
opportunity to bargain with respect to this conduct and its effects. Respondent has denied these
allegations.

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Respondent argues that its established practice was to review the wages annually and to
decide upon the appropriate amount of a wage increase based upon economic factors. It cites the
following language from its policy handbook:

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The goal is to give annual increases provided there are favorable business conditions and
plant performance. . .Employment area and industry surveys of wages and benefits may
be conducted to assist in making decisions regarding potential adjustments to wages and
benefits.

In essence, Respondent asserts that management did review wages in June 2003 and
decided not to give a raise because of bad economic conditions. Business conditions and plant
performance, the factors listed in the policy manual, simply did not justify giving employees a
raise. Therefore, Respondent contends, it did not deviate from its established practice.

This argument depends on the assumption that Respondent conducted such a review.
However, the following testimony by Plant Manager Kitchen indicates the opposite:

Q My question to you is this: In June, did you even consider giving the
July 2003 wage increase?
A No.
Q And General Cable never notified the Union of its intention regarding the
July 2003 annual wage increases, correct?
A Correct.

Based on this admission, I find that Respondent did not conduct any review in 2003, and
thereby departed from its established practice.

Waiver

At the start of bargaining, the Union entered into an agreement that it would negotiate
noneconomic terms before moving on to economic items. Did this agreement act as a waiver
which privileged Respondent to withhold the July 2003 wage increase.

As the Board stated in Beverly Health and Rehabilitation Services, Inc., 335 NLRB 635
(2001)

It is. . .settled law that any waiver by a union of its right to bargain over mandatory
subjects must be clear and explicit and that the employer has the burden of establishing
an affirmative defense that a unilateral postexpiration change was consistent with past
practice.

335 NLRB at 636.

I conclude that the Union did not waive its right to bargain about the annual wage
increase. The Respondent has not demonstrated that the Union intended, clearly and
unequivocally, to waive this right. Moreover, by its terms, an agreement to negotiate
noneconomic terms first would not ordinarily be viewed as eliminating Respondent’s duty to
adhere to its established practice granting annual wage increases.
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In sum, I find that by withholding the annual increase and by failing to bargain with the
Union over this matter, Respondent violated Section 8(a)(5) and (1) of the Act.

Certification 5
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When the transcript of this proceeding has been prepared, I will issue a Certification
which attaches as an appendix the portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the Findings of Fact, Conclusions of Law,
Remedy, Order and Notice. When that Certification is served upon the parties, the time period
for filing an appeal will begin to run.

Throughout this proceeding, the parties representatives have impressed me greatly with
their courtesy and professionalism. They stand as an example to the bar, and I hope that all will
follow this example. The hearing is closed.

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APPENDIX B

NOTICE TO EMPLOYEES

Posted by Order of the 5
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National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated the National Labor
Relations Act and has ordered us to post and abide by 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 threaten to withhold an annual wage increase because employees have
selected the International Union, United Automobile, Aerospace & Agricultural
Implement Workers of America – UAW to represent them in collective bargaining or
because we were negotiating with this Union concerning the terms of a collective–
bargaining agreement.

WE WILL NOT change the procedures for selecting bargaining unit employees for
layoff without first notifying and bargaining with the Union concerning the procedures,
the layoff, and its effects.

WE WILL NOT change our practice of giving annual wage increases to employees
without first notifying and bargaining with the Union.

WE WILL NOT, in any like or related manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed them by Section 7 of the Act.

WE WILL make employees whole, with interest, for all losses they suffered because we
unlawfully failed to grant a wage increase in July 2003.

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WE WILL make whole, with interest, all employees whom we laid off between June
19, 2003 and June 26, 2003 without first notifying and bargaining with the Union
concerning the procedure for selecting employees for layoff, the layoff and its effects.

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GENERAL CABLE TEXAS OPERATIONS LIMITED PARTNERSHIP
(Respondent)
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Dated: ______________________ By: ___________________________________________
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
ct. 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.

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819 Taylor Street, Room 8A24, Fort Worth, TX 76102-6178
(817)978-2921, 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, (817) 978–2925

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