John-Manville Sales Corp.

National Labor Relations Board - Board Decisions

Nov 18, 1986

282 N.L.R.B. 182 (N.L.R.B. 1986)

182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johns-Manville Sales Corporation and United
Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO. Cases 11-CA-10739 and
11-CA-10850
18 November 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON , AND STEPHENS
On 25 June 1984 Administrative Law Judge
Burton S. Kolko issued the attached decision.
Thereafter, the Respondent filed exceptions and a
supporting brief. It later filed a motion for expedit-
ed consideration.'
The Board has considered the record and the at-
tached decision in light of the exceptions and brief
and has decided to affirm the judge's rulings, find-
ings , and conclusions only to the extent consistent
with this Decision and Order.
We agree with the judge's conclusion that the
Respondent violated Section 8(a)(5) by unilaterally
changing its policy of laying off employees in
order of seniority and by laying off employees in
July 19822 without regard to their seniority rights.
We disagree, however, with the judge's further
findings that the Respondent also violated Section
8(a)(5) by withdrawing recognition from the Union
in March 1983; by failing to supply the Union in
March 1983 with certain wage and benefit data the
Union had requested; and by unilaterally laying off
employees in November 1983.
The record shows that the Union was certified in
January as the collective-bargaining representative
for a unit of production and maintenance employ-
ees at the Respondent's Laurinburg, North Caroli-
na plant. The parties began bargaining in March
and, during the ensuing year, met around 25 times
until the Respondent withdrew recognition in
March 1983. Earlier, on 7 July, the Respondent ad-
vised the Union that it would have to lay off
around 40 employees on 23 July because of excess
inventory. The Respondent also advised the Union
that it wished to retain certain junior maintenance
employees out of line of seniority because some
repair work needed to be done during the period of
the layoff. 3 Because the Union wanted to canvass
' With the issuance of this Decision and Order, the Respondent's
motion is rendered moot and is denied.
2 Hereafter , all dates refer to 1982 unless noted otherwise.
3 Relevant record evidence concerning the Respondent 's earlier past
practice in implementing layoffs consisted of its employee handbook,
which provided on p 16 that layoffs would be by plant seniority, "that is
the most junior people as determined by Plant seniority will be the first
to be laid off." Plant seniority was defined on p. 14 as "the total amount
of continuous time you have earned as an employee of the Laurinburg
Plant." Edsel Lowery testified that, during his period of employment
from August 1974 to December 1981 , the Respondent's policy was to lay
employees' feelings about the retention of the
junior maintenance employees, the parties agreed
to meet again to discuss the matter on 13 July.
Nevertheless, on 12 July, the Respondent went
ahead unilaterally and announced to employees the
layoff to be effective 23 July and its intent to retain
the maintenance employees out of line of seniority.
Included in the layoff were three production work-
ers who were senior to the maintenance workers
who were retained. After the layoff, the parties
continued to negotiate and met an additional six or
seven times. The layoff was discussed at most of
these sessions. The judge implicitly found that the
three production workers who were laid off out of
seniority were recalled 12 weeks later in October.
On 25 February 1983 employee Greene present-
ed the Respondent's plant manager, Cherry, with a
copy of a NLRB petition requesting a decertifica-
tion election, and an appended informal petition
signed by 46 of the Respondent's 72 active employ-
ees. The informal petition was captioned:
WE THE UNDERSIGNED EMPLOYEES
... REQUEST THE NATIONAL LABOR
RELATIONS BOARD TO CONDUCT A
DECERTIFICATION ELECTION IN OUR
BARGAINING UNIT BECAUSE WE BE-
LIEVE THAT THE UNITED RUBBER
CORK LINOLEUM AND PLASTIC
WORKERS OF AMERICA NO LONGER
REPRESENT A MAJORITY OF THE EM-
PLOYEES IN OUR BARGAINING UNIT.
Cherry compared the signatures on the petition
against those in each employee's personnel file and
concluded that all the signatures looked authentic.'
Thereafter, by letter of 9 March 1983, the Re-
spondent advised the Union that it had a good-faith
doubt as to the Union's majority status and was
suspending negotiations until the Union's majority
status was proven in a Board election. The Re-
spondent thereafter did not supply the Union with
information it had requested in February 1983 con-
cerning wage and benefit data for the Respondent's
Laurinburg plant and its nonunion plants. In No-
vember 1983, the Respondent laid off 76 employees
due to a need for an inventory adjustment. The Re-
off strictly by seniority. Employee Monroe, who had worked for the Re-
spondent for some 18 years, testified that prior to July 1982 the Compa-
ny's policy was to lay off strictly by seniority with the sole exception of
which he was aware occurring about 10 years earlier when the Respond-
ent had retained one worker out of seniority The Respondent 's manager
of employee relations, Grosboll, testified that in a 1975 layoff the Re-
spondent had retained three junior maintenance workers Grosboll also
testified that in July 1982 the Respondent 's layoff and recall procedure
was by plant seniority On cross-examination , however, he testified that
the policy in July 1982 was to lay off by seniority within classifications
4 At the hearing , the parties stipulated that all the signatures on the
petition were authentic.
282 NLRB No. 40
JOHNS-MANVILLE SALES CORP. 183
spondent did not notify or bargain with the Union
over this layoff, nor did the Union request bargain-
ing.
The judge found that the Respondent had violat-
ed Section 8(a)(5) in July by unilaterally altering its
policy of laying off employees in order of seniority
and by unilaterally laying off employees without
regard to their seniority rights.- The judge reasoned
that the decision to lay off employees is a mandato-
ry subject of bargaining and that the parties had
not reached impasse when the Respondent an-
nounced the layoff to employees on 12 July. Even
though the Union did not suggest an alternative
plan, and may have approved of the layoff in prin-
ciple, the judge found that the Union did not there-
by waive its right to bargain about the layoff pro-
cedure. The judge next found that the Respondent
further violated Section 8(a)(5) by withdrawing
recognition from the Union in March 1983. In so
doing, the judge noted that the Union's certifica-
tion year had expired in January 1983 and that, ac-
cordingly, the Union had a rebuttable presumption
of majority status when the Respondent withdrew
recognition based on the decertification petition
signed by a majority of employees. Nevertheless,
the judge concluded that the Respondent could not
rely on this petition as the basis for a good faith
doubt of the Union's continuing majority status be-
cause that doubt was not raised in a context free of
unfair labor practices. The judge noted the 8(a)(5)
violation in July 1982, which he found to have
been a serious unfair labor practice that weakened
the Union's position with the employees. Accord-
ingly, based on his' conclusion that the Respondent
could not lawfully! withdraw recognition from the
Union in March 1983, the judge further found that
the Respondent also violated Section 8(a)(5) by
failing to supply the Union with the wage and ben-
efit data it had requested and by unilaterally laying
off employees in November 1983.
As noted, we agree that, as alleged in the com-
plaint, the Respondent violated Section 8(a)(5) by
unilaterally changing its policy of laying off em-
ployees in order of, seniority and by laying off em-
ployees in July without regard to- their seniority
rights. See, e .g., American Model & Pattern, 277
NLRB 176 (1985).5 Contrary to the judge, howev-
er, we conclude that the Respondent did not vio-
late Section 8(a)(5) by withdrawing recognition
from the Union in March 1983. Thus, contrary to
the judge, we find that the Respondent was privi-
leged to rely on the, petition signed by a majority
of its employees as a basis for a good-faith doubt of
the Union's continuing majority status. In this
regard, we note that it is well settled that an em-
ployer may not question a union 's majority status
"in a context of illegal antiunion activities, or other
conduct by the employer aimed at causing disaffec-
tion from the union or indicating that in raising the
majority issue the employer was merely seeking to
gain time in which to undermine the union." Colo-
nial Manor Convalescent Cir., 188 NLRB 861
(1971); citing Celanese Corp., 95 NLRB 664, 673
(1951). Applying these criteria to the facts of the
instant case, we do not view the Respondent's July
violation as having been of such a character to pre-
clude the Respondent from asserting, a good-faith
doubt of the Union's majority status some 8 months
later in March 1983, As we do not view lightly the
Respondent's unlawful unilateral change in July,
we do note, that this conduct directly affected only
three employees who may otherwise have re-
mained working during the layoff absent the Re-
spondent's unlawful unilateral action. Furthermore,
the Respondent advanced a reasonable business jus-
tification for wishing to retain the junior mainte-
nance employees during the period of the layoff.
Moreover, the Respondent continued to ,meet and
bargain with the Union for almost 8 months there-
after.6 In these circumstances, we cannot conclude
that the Respondent's unlawful conduct in July
caused the massive disaffection from the 'Union evi-
dent in the employee petition or that it had such a
lingering effect so as to taint the Respondent' s reli-
ance on that 'petition as the 'basis for a good-faith
doubt of the Union's majority status. Burger Pits,
Inc., 273 NLRB 1001, 1002 fn. 15 (1984), affd. 785
F.2d 797 (9th Cir. 1986). Accordingly, we shall dis-
miss the allegation that the Respondent violated
Section 8(a)(5) by withdrawing recognition from
the Union in March 1983. As we have found that
the Respondent had a legitimate basis for with-
drawing recognition from the Union in March
1983, we shall also dismiss the allegations that the
Respondent violated Section 8(a)(5) by later failing
to supply the Union with certain wage and benefit
data requested by the Union and by unilaterally
laying off employees in November 1983.7
5 In so doing , we find it unnecessary to pass on the judge 's discussion
of the bargaining obligation attaching to an employer 's decision to lay off
employees. In this regard , we note that the complaint did not allege that
the Respondent was obligated to bargain over its decision to lay off em-
ployees in July. The complaint alleged only that the Respondent violated
Sec. 8(a)(5) by unilaterally changing its policy of laying off employees in
order of seniority and by laying off employees in July without regard to
their seniority rights
6 The employees who were laid off out of seniority were recalled some
12 weeks later, in October. According to the Respondent 's plant manag-
er, Cherry , the "out of line" seniority of the three junior maintenance
employees who were retained was rectified for all three no later than
January 1983.
T In these circumstances, we find it unnecessary to pass on the question
of whether the Respondent was obligated to supply the Union with wage
and benefit data requested for its nonunion plants
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board orders that
the Respondent, Johns-Manville Sales Corporation,
Laurinburg, North Carolina, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally changing its layoff policy and
laying off employees without regard to their se-
niority rights without providing the Union with
notice and opportunity to bargain about the selec-
tion of employees for layoff.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the 'rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make whole any employee for any loss of
pay suffered as a result of his unilateral layoff out
of seniority on 23 July 1982 in the manner set forth
in the remedy section of the judge's decision.
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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.
(c) Post at its Laurinburg, North Carolina facili-
ty ' copies of the attached notice marked "Appen-
dix."8 Copies of the notice, on forms provided by
the Regional Director for Region 11, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly 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.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found herein be dismissed.
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT unilaterally change our layoff
policy and lay off employees without regard to
their seniority rights without providing the Union
with notice and opportunity to bargain about the
selection of employees for layoff.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole any employees who have
suffered a loss of pay, with interest, by reason of
our unlawful action in refusing to bargain with the
Union regarding layoffs out of, seniority on 23 July
1982.
JOHNS-MANVILLE SALES CORPORA-
TION
Jasper C. Brown Jr., Esq., for the General Counsel.
William J. Rodgers and Thomas G. Olp, Esqs. (Finley,
Kumble, Wagner, Heine, Underberg, Manley, Myerson &
Casey), of Washington, D.C., for the Respondent.
Robert S. Sarason, Esq., of Riverdale, Georgia, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON S . KOLKO , Administrative Law Judge. An
original charge in Case 11-CA-10739 was filed on De-
cember 30, 1982, alleging that the Johns-Manville Sales
Corporation (Respondent) had violated the National
Labor Relations Act by unilaterally changing its policy
of layoffs and laying off employees without regard to
their seniority rights. On April 5, 1983 , another charge
was filed in Case 11-CA-10850, alleging that Respond-
ent had violated the Act by withdrawing recognition of
the United Rubber , Cork, Linoleum and, Plastic Workers
of America , AFL-CIO (the Union) on March 9, 1983.
These charges were consolidated by Order on October
19, 1983 . The General Counsel also alleged that Re-
spondent had violated the Act by refusing to provide the
Union with relevant information on wages and benefits.
At trial, a further allegation was added: that Respondent
had violated Section 8(a)(5) additionally by a unilateral
JOHNS-MANVILLE SALES CORP. 185
layoff on November 18, 1983. After trial Respondent and
the General Counsel filed briefs.'
Background
The Union won an election on August 28, 1981, and
was certified as the exclusive representative of Respond-
ent's production and maintenance employees on January
14, 1982 . The parties commenced bargaining in March
1982.
Approximately 4 months into the bargaining, Respond-
ent notified the Union that it would be necessary to have
a layoff of up to 40 employees. The parties discussed the
layoff at that session on July 7, 1982 , and at subsequent
sessions . There is much dispute concerning what was de-
cided and agreed on at that early July bargaining session.
The layoff took place on July 23, 1982. Four mainte-
nance employees were retained out of line of seniority.
Otherwise, the layoff was according to plant seniority.
As noted, the parties met several more times after the
layoff. In late February 1,983, the Union asked Respond-
ent for wage and benefit data from all Johns -Manville lo-
cations. Shortly after that, Respondent received a decer-
tification petition from its employees. After checking the
signatures, Respondent found that 46 out of 72 employ-
ees, had validly signed the decertification petition. Basing
its good-faith doubt of the Union's representation of its
employees on this petition, Respondent withdrew recog-
nition of the Union in March 1983. It never responded to
the Union 's request for information.
Activities on July '7, 8, and 12
Jerry Alexander, formerly` a field representative with
the Union, testified that Respondent informed him and
the other negotiating committee members (Edsel
Lowery, Debra Jones, and David Monroe, all plant
workers) on July 7 that there was a layoff scheduled for
July 23. They were told that the layoff would involve 39
or 40 people and last for 6-10 weeks. Paul Burnum, the
manager of labor relations for Johns-Manville, also said
that the layoff would be by seniority. Alexander then in-
dicated that in the afternoon session on that same day
(July 7), Burnum related that the layoff would only con-
cern about 32 people, and added that he wanted to hold
four maintenance men out of line of seniority. Alexander
said that he asked Burnum if the Company ' had ever held
people out like that before . Burnum allegedly , replied in
the negative, saying that some repair work needed to get
done. Burnum told the union delegation that if they
would consider the Company's proposal the a Company
would give special consideration to the proposal that the
Union had wanted adopted . (IC was never made clear
what this "package deal" included. At least part of the
Union's proposal was shifting David Monroe from
second to first shift to enable him to carry out his official
school board functions.) Alexander further indicated that
no one at the bargaining table could recall a layoff out of
line of seniority in recent years.
' I grant the General Counsel 's motion for leave to file a reply brief
and Respondent's motion to strike portions of the General Counsel's
brief
At the next day's session, according to Alexander, the
group agreed that Monroe and Gary Grosboll, the em-
ployee relations manager at the plant , would get together
the following Tuesday, July 13, to discuss the layoff.
However, things did not progress in that manner. On
Monday, Monroe called Alexander to tell him that the
employees had already been told about the layoff and the
holdout of the four maintenance men. Alexander testified
that Grosboll later said that the Company did not want
to wait until the last minute to tell the employees about
the layoff.
David Monroe , a member of the negotiating commit-
tee, corroborated Alexander's story on the main issues.
Respondent 's testimony differed.
Grosboll testified that Burnum told the negotiating
group at the July 7 meeting about the layoff and the re-
tention of the four maintenance men, and had explained
that 116 custom molds needed to be repaired and that
skilled persons were needed for the job. Grosboll re-
called that they had also discussed Monroe's transfer to
first shift but did not remember any kind of "package
deal" the Union had mentioned. The Company said that
they would get back to the union'committee about Mon-
roe's transfer.
Grosboll's version of the afternoon session of the July
7 'negotiations is that the group discussed only voluntary
layoffs. There was no further discussion of the items of
importance to this case.
According to Grosboll, the matter of the July 23
layoff was not left open. He testified that he called
Monroe on Monday, July 12, and told Monroe that his
shift could not be' changed. Then he called Alexander.
There is some discrepancy here about who called whom.
Grosboll produced a telephone bill showing two calls to
Gardo's Motel in Forest City, North Carolina, where Al-
exander said he was staying on July 12 . Both calls show
a, I-minute, duration . Alexander said that he was the one
who initiated the call. He testified that he traveled 556
miles from, home in Gasden, Alabama, to the Charlotte,
North Carolina union office to pick up negotiating mate-
rials for the following day. From that office (at which he
arrived around 3 o'clock) he spoke with Dave Monroe
and found 'out that the,Company had already announced
the layoff to the employees. At that time, he called
Grosboll at the plant and told him that the deal they had
was off and that the layoffs had to be dope strictly by
seniority : Grosboll's version of what was said is similar
except that he said Alexander was upset about the Com-
pany's decision to not transfer Monroe and that was why
the deal was called off. Alexander said that he remained
at the Union's office until about 5 p.m. at which time he
left for Gardo's. He arrived at approximately 6 or 6:30
p.m.' He picked up his messages, noting one from Gros-
boll. He did not bother to call him because ' he had al-
ready spoken to Grosboll earlier that afternoon.
Grosboll gave a smooth delivery of his version of the
events of July 12 but his demeanor was not as credible as
Alexander's. For instance; his introduction of a phone
bill to corroborate his, version of the phone calls was
hampered by the fact that the bill ' showed two phone
calls of equal duration (1 minute). He would have had to
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been talking at quite a rate of speed to have the
conversation he claimed to with Alexander and have it
measure equal in length with an earlier inquiry whether
Alexander was in. I credit Alexander's account of these
events not only as the more plausible, but because Alex-
ander's demeanor evinced greater candor and spontanei-
ty than Grosboll's.
The main 8(a)(5) allegation
The charge arising out of the events on July 7 and 8 is
that Respondent refused to bargain with the Union. Evi-
dence of this, refusal is the unilateral change in layoff
policy and the ensuing layoff without regard to seniority.
It is clear that the decision to lay off employees is a
term and condition of employment.2 Thus, it is a manda-
tory subject of bargaining. It cannot be implemented
unless both sides agree or an impasse has been reached.
Both sides in this case have indicated that ,they continued
to discuss the layoff in several negotiation sessions after
the initial disclosure to employees and implementation of
the layoff. Clearly no impasse had been reached when
the Company acted on July 12. As for agreement, the
telephone exchange between Alexander and Grosboll on
July 12 and the letter sent to Burnum by Alexander on
July 15 indicate that although the Union may have
agreed to the layoffs, it did not agree to holding out the
maintenance men from the line of seniority as the layoff
took place.
Respondent argues that because the Union did not
present an alternative to the Company's proposal, it has
waived its right to bargain, citing Castle-Pierce Printing
Co., 251 NLRB 1293 (1980). However, Castle-Pierce also
indicates that a union would not waive its rights if it re-
quested to negotiate further about the proposal.3
I find that during the negotiation sessions on July 7
and 8 the Union asked for more time to talk to the em-
ployees and use their input to decide whether to go
along with the layoff procedure desired by the Compa-
ny. For whatever reason, the Company' took it upon
itself to inform the employees of the layoff and the hold-
ing out of the maintenance men before the Union even
had a chance to discuss the proposal with the employees.
The negotiating committee met six or seven times after
the layoff. Both sides agreed that the layoff ' was dis-
cussed at most of these sessions. For instance, at the
August '17 session, Alexander asked for an adjustment in
the layoff. Burnum replied that if it lasted longer than 13
weeks he would consider an adjustment.
Although it seems to be stretching logic to find a com-
pany guilty of refusing to bargain when evidence shows
continued limited bargaining, the purposes of the Act
would not be effectuated by allowing the company to
unilaterally impose its own desires on the employees.
Such unilateral, action can only weaken the image of the
union in the eyes of the employees. It is important to re-
member that an essential element of collective bargaining
2 Clements Wire & Mfg., 257 NLRB 1058 (1981)
' In Castle-Pierce, the company indicated that it was willing to negoti-
ate on a new rule it wanted implemented The union merely objected to
the rule It did nothing else. The Board said that because the union did
nothing, the company had the right to unilaterally implement the new
rule.
is good faith. From the testimony at trial, I have found
that the Company was not proceeding in good faith
when it held meetings with its employees on July 12 and
wrote a letter to them informing them of the layoff, all
while the Union was still considering its response.
Hence, I find a violation of Section 8(a)(5) as alleged.
The decertification petition
Respondent argues that the complaint should be dis-
missed because the General Counsel had not proven the
Union's majority status at the time the Company with-
drew from bargaining . This misstates the law. As set out
in Terrell Machine Co., 173 NLRB 1480 (1969):
1. A certified union , upon expiration of the first year
following its certification (in this case in January 1983),
enjoys a rebuttable presumption that its majority status
continues.
2. Once the presumption is shown to be operative a
prima facie case is established that an employer is obli-
gated to bargain and that its refusal to do so would be
unlawful.
3. The prima facie case may be rebutted if the employ-
er` affirmatively establishes either: (a) that at the time of
refusal the Union in fact no longer enjoyed majority rep-
resentative status; ' or (b) that the employer's refusal was
predicated on a good faith doubt of the union's contin-'
ued majority status. There are two prerequisites' for (b):
(i) the asserted doubt must be based on objective consid-
erations; and (ii) it must not have been advanced for the
purpose of gaining time in which to undermine the
union . No part of this analysis points to an obligation by
the General Counsel to prove the Union's majority
status.
Testimony at trial indicated that Greg Cherry, the
plant manager, received the decertification petition from
Jake Greene, a production worker, on February 25,
1983. Cherry never asked anyone if he or she had really
signed the petition, nor does he recall any employee initi-
ating a conversation with him about it. (There was a
stipulation at trial that all the names on the petition are
authentic.) On March 3 he gave a copy of the petition to
Burnum. Three negotiating sessions were held that week,
but Cherry did not recall any discussion of the petition.
About March 9, he was informed that the Company was
suspending negotiations because it had a good-faith
doubt of the Union's majority status.
Negotiations may be suspended where "the assertion
of doubt is raised in a context free of unfair, labor prac-
tices and is supported by a showing of, objective, consid-
erations providing reasonable grounds for a belief that
the majority of the employees no longer desire union
representation."4 And it is possible that good-faith doubt
could be shown by a valid decertification petition sup-
ported by a majority of the unit employees. 5'
In this case, however, I do find an unfair labor prac-
tice in the layoff implemented ; in July' 1982. It is "well
settled that an employer may not avoid his duty, to bar-
4 KSD-AM Radio, 262 NLRB ,687, 691 (1982), Charles Mfg. Co, 245
NLRB 39, 42 ( 1979); Southern Wipers, Inc., 192 NLRB 816 (1971).
5 Dresser Industries , 264 NLRB 1088, 1089 fn 7 (1982)
JOHNS-MANVILLE SALES CORP.
gain by relying upon any loss of majority status attributa-
ble to his own unfair labor practices" so long as the
unfair labor practices are sufficiently serious.',
An unbargained-about layoff is a serious unfair labor
practice.? The Employer did not remedy the situation in
the months that followed even though the Union repeat-
edly requested it. Therefore, the Employer cannot rely
on the decertification petition as the basis for its with-
drawal of recognition of the Union. It cannot profit by
its unfair labor practice.8
Respondent argues that if the layoff is an unfair labor
practice, it was not serious enough to disallow reliance
on the decertification petition, because the layoff affected
only a small number of employees for a short time. Al-
though it may be debatable whether 12 weeks is a short
time, Respondent misses the point. What is crucial here
is that a layoff took' place, and the Union was unable to
participate in the decision or the notification itself, thus
weakening the Union's position with the employees.9
Other 8(a)(5) allegations
Alexander had written a letter to Respondent on Feb-
ruary 22, 1983, requesting wage and benefit data.
Burnum testified that he became aware of the request on
March 4. He said that the decision to suspend negotia-
tions was made shortly after that date. Therefore, Re-
spondent never replied to the Union's request.
Unfortunately for Respondent, inasmuch as the with-
drawal of recognition of the Union was not privileged,
the Company was not free to ignore the Union's request.
Its failure to provide the data is violative of Section
8(a)(5) of the Act.
The remaining charge deals with the Thanksgiving
Day layoff that commenced November 18, 1983. A stipu-
lation about the facts of the layoff was reached at trial.
(Jt. Exh. 1.) The layoff was based on economic reasons,
involving 76 employees for 3 days. The Company did
not confer with the Union about the layoff The Union
did not request bargaining on the decision.
Clearly, this was another unilateral action by Respond-
ent involving a mandatory subject of bargaining. Al-
though it is true that the Union made no attempt to bar-
gain , it is also true that Respondent had cut off all bar-
gaining many months before. As far as Respondent was
6 Pittsburgh & New England Trucking Co., 249 NLRB 833, 836 (1980),
citations omitted Enforcement was denied by the Court of Appeals for
the Fourth Circuit (643 F.2d 175) in 1981, which reiterated its position
that an employer may avoid a bargaining order by showing that its unfair
labor practices did not significantly contribute to a loss of union majority.
In Pittsburgh„ the court stated that the Board had not shown that there
was a cause-and-effect relationship between the employer's unfair labor
practices and the union 's loss of majority. Indeed, the Board would not
allow testimony on this matter. Although that court may find the instant
analysis flawed in the same manner, I must acknowledge that the Board
has instructed its administrative law judges to apply established Board
precedent that has not been reversed by the Board or the Supreme Court.
Regency at the Rodeway Inn, 255 NLRB 96 fn. 2 (1981). The Board has
adhered to its policy despite the Court's ruling See Chicago Magnesium
Castings, 256 NLRB 668 (1981); Abbey Aledical/Abbey Rents, 264 NLRB
969 (1982) Accordingly, I follow the Board's precedent.
7 U.S. Gypsum Co, 94 NLRB 112 (1951)
8 Chicago Magnesium Castings, supra; Abbey Medical/Abbey Rents,
supra.
9 Cf. Pittsburgh & New England Trucking Co., supra, 249 NLRB at 837.
187
concerned, there was no Union. The only recourse for
the Union is this present action. Because Respondent cre-
ated the situation in which the Union was unable to in-
tervene, its unilateral action violates the Act. t 0 I find a
violation of Section 8(a)(5) based on its actions in this
regard.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. x t
2. United Rubber, Cork, Linoleum and Plastic Work-
ers of America, AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees, includ-
ing production shift leaders, production develop-
ment technicians, quality control inspectors, and
senior quality control inspectors employed by Re-
spondent at its Laurinburg-Maxton, Air Base plant
in Laurinburg, North Carolina, excluding all office
clericals, guards, professionals and supervisors as
defined in the Act.
4. At all times material since August 28, 1981, the
Union has been the exclusive representative of the em-
ployees described above for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By unilaterally changing its policy of laying off em-
ployees by seniority about July 12, 1982; by unilaterally
laying off certain employees in the unit described above
July 23, 1982, without regard to their seniority rights; by
withdrawing recognition from the Union about March 9,
1983, and refusing to bargain thereafter; by refusing to
provide the Union with relevant information concerning
wage and benefit survey data; and, by unilaterally laying
off employees on November 18,,1983, Respondent violat-
ed Section 8(a)(5) and (1) of the Act.
6. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent violated Section 8(a)(5)
and (1) by changing its layoff policy and laying off em-
ployees without regard to their seniority and without
notice to and bargaining with the Union, I shall order
that Respondent, on request, bargain with the Union
concerning the layoffs of employees on July 23, 1982,
and November 18, 1983. Because both layoffs were ef-
fected for economic reasons and were inevitable, no
make-whole remedy is in order. Hanes Corp., 260 NLRB
557 (1982). Unlike in Hanes, however, we know who the
three employees were who were laid off out of seniority
io Holiday Inn of Benton, 237 NLRB 1042, 1044 (1978)
ii Respondent is engaged in the manufacture of railroad brake blocks
and during the past 12 months has received goods and raw materials
from points directly outside of North Carolina in excess of $50,000 and
has manufactured and shipped directly to points outside North Carolina
products valued in excess of $50,000
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Leonard Locklear , Robert Harold Peele, and Ronnie
Deaton), and for them a,make-whole remedy is appropri-
ate. Therefore , Respondent is further ordered to make
whole those three employees laid off by Respondent out
of seniority on July 23, 1982. Backpay shall be computed
in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 ( 1950), with interest to be computed in the
manner set forth in Florida Steel Corp., 231 NLRB 615
(1977). See generally Isis Plumbing Co., 138 NLRB 716
(1962).
Having further , found that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act when it withdrew recogni-
tion from and refused to meet with the Union after
March 9 , 1983, I shall order Respondent to cease and
desist from withdrawing recognition and refusing to rec-
ognize the Union and, affirmatively, to bargain collec-
tively, on request, with the Union as the exclusive repre-
sentative of its employees in the appropriate unit and, if
an understanding is reached , to embody such understand-
ing in a signed written agreement.12
Furthermore, because Respondent has violated the Act
by refusing to provide relevant wage and information
data, it shall be ordered to provide the Union with such
data.
[Recommended Order omitted from publication.]
12 Respondent's obligation to bargain will exist for a reasonable time
without regard to whether or not there are fluctuations in the majority
status of the Union during that period. NLRB Y. Tower Hosiery Mills, 180
F.2d 801, 706 (4th Cir. 1950), cert. denied 340 U.S. 811; Pride Refining,
224 NLRB 1353, 1357 (1976).