Kingsbury, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 2010

355 N.L.R.B. 1195 (N.L.R.B. 2010)

KINGSBURY, INC.
355 NLRB No. 195
1195
Kingsbury, Inc. and Kingsbury Shop Employees’ As-
sociation a/k/a The Shop Committee. Cases 4–
CA–36746, 4–CA–37077, and 4–CA–37086
September 29, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On April 20, 2010, Administrative Law Judge David I.
Goldman issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief. The General Counsel filed cross-
exceptions and a supporting brief, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions and to adopt the recommended Order as
modified.2

1 The General Counsel has implicitly excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
In the absence of exceptions, we adopt the judge’s findings that the
Respondent violated Sec. 8(a)(5) and (1) by unilaterally contracting out
unit work and by failing to provide the Union with information rele-
vant and necessary to the Union’s duties as exclusive collective-
bargaining representative.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) of the Act by terminating employee Stephen Landis for engag-
ing in protected concerted activity, we agree with the judge that the
Respondent cannot enforce a unilaterally implemented waiver of em-
ployees’ statutory rights but find it unnecessary to rely on the judge’s
citation to Industrial Hard Chrome, 352 NLRB 298 (2008), a case
decided when the Board had only two sitting members. We rely in-
stead on McClatchy Newspapers, 321 NLRB 1386, 1390 (1996), enfd.
in rel. part 131 F.3d 1026 (D.C. Cir. 1997), cert. denied 524 U.S. 937
(1998). Further, we find it unnecessary to the pass on the General
Counsel’s exception to the judge’s failure to find that the Respondent's
termination of Landis also violated Sec. 8(a)(3). The additional viola-
tion would be essentially cumulative and would not materially affect
the remedy. See, e.g., Yellow Transportation, 343 NLRB 43, 43 fn. 3
(2004); Mast Advertising & Publishing, 304 NLRB 819, 820 fn. 7
(1991).
2 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the Board’s standard remedial language for
the violations found.
The Respondent contends that the judge erred in ordering a make-
whole remedy for the Respondent’s 8(a)(5) unilateral change violation.
The Respondent argues that there is no evidence that any employees
suffered a loss of earnings as a result of the unlawful subcontracting.
We affirm the judge’s make-whole remedy and observe that the amount
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Kings-
bury, Inc., Philadelphia, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Insert the following as paragraph 2(a) and reletter
the subsequent paragraphs.
“(a) Before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:
All shop employees of the Company who have com-
pleted their introductory period.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail or refuse to bargain with Kingsbury
Shop Employees’ Association a/k/a The Shop Committee
(the Union) by unilaterally contracting out bargaining
unit work without providing the Union notice and an
opportunity to bargain.
WE WILL NOT refuse to provide information that was
requested by the Union and that is relevant to the Un-
ion’s representational duties.
WE WILL NOT discharge you for engaging in concerted
activities protected by the National Labor Relations Act.

of backpay owed, if any, may be determined in the compliance stage of
this proceeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1196
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights set forth above.
WE WILL make whole, with interest, all employees
who lost earnings or other benefits as a result of our
unlawful contracting out of CH housings announced
January 16, 2009.
WE WILL, before making any changes in wages, hours,
or other terms and conditions of employment, notify and,
on request, bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:
All shop employees of the Company who have com-
pleted their introductory period.
WE WILL, within 14 days from the date of the Board’s
Order, offer Steven Landis full reinstatement to his for-
mer position, or if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights and privileges he previously en-
joyed.
WE WILL make Steven Landis whole, with interest, for
any loss of earnings and other benefits resulting from his
discharge.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files, including Steven Landis’
personnel file, any reference to his discharge, and WE
WILL within 3 days thereafter notify Steven Landis in
writing that this has been done and that the discharge will
not be used against him in any way.
KINGSBURY, INC.
Henry R. Protas, Esq. (Region 4, NLRB) of Philadelphia,
Pennsylvania, for the General Counsel
Jeffrey L. Braff, Esq. (Cozen O’Connor) of Philadelphia, Penn-
sylvania, for the Respondent
Mr. Jeffrey Johnson (Kingsbury Shop Employees’ Association)
of Philadelphia, Pennsylvania for the Charging Party
DECISION
INTRODUCTION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. These
cases arise in the context of an industrial bearings manufacturer
and its employees’ union that, having failed to negotiate a suc-
cessor labor agreement, were operating under the employer’s
unilaterally implemented terms and conditions of employment.
The cases involve the Government’s allegations that the em-
ployer violated the National Labor Relations Act (Act) in three
distinct ways: by contracting out a portion of a customer’s or-
der that would typically be performed by the bargaining unit;
by failing to provide requested employee information to the
Union for over four months; and by discharging the union’s
president, allegedly for “interfering with production.”
STATEMENT OF THE CASE
On May 5, 2009, the Kingsbury Shop Employees’ Associa-
tion (KSEA or Union) filed a charge with Region 4 of the Na-
tional Labor Relations Board (Board) alleging violations of the
Act by Kingsbury Inc. (Kingsbury). The case was docketed as
Case 4–CA–36746. The charge was amended by the Union on
July 22, 2009.
On July 24, 2009, the Board’s General Counsel, by the Re-
gional Director of Region 4, upon investigation of the Union’s
charge, issued a complaint alleging that Kingsbury violated the
Act by subcontracting the production of four CH housings and
by unilaterally implementing certain new terms and conditions
of employment after expiration of the parties’ labor agreement.
On September 29, 2009, the Union filed another charge with
Region 4, alleging violations of the Act by Kingsbury regarding
Kingsbury’s failure to provide requested wage information.
This charge was docketed as Case 4–CA–37077.
On October 6, 2009, the Union filed another charge, dock-
eted as Case 4–CA–37086, alleging Kingsbury violated the Act
by terminating Union President Steven Landis.
On November 24, 2009, the Board’s General Counsel, by the
Director of Region 4, issued a complaint in Case 4–CA–37077,
alleging Kingsbury violated the Act by failing and refusing to
provide requested wage information to the Union. On Novem-
ber 25, 2009, the Regional Director issued an order consolidat-
ing Cases 4–CA–36746 and 4–CA–37077.
On December 11, 2009, the Board’s General Counsel, by the
Director of Region 4, issued a complaint in Case 4–CA–37086,
alleging that Kingsbury violated the Act by discharging Union
President Landis. Also on December 11, 2009, the Regional
Director issued an order consolidating Case 4–CA–37086 with
the two previously consolidated cases (4–CA–36746 and 4–
CA–37077).
Kingsbury filed answers to each complaint denying that it
violated the Act.
By order issued January 12, 2010, based on a settlement
reached by the parties, the Regional Director withdrew the
allegations of the complaint in Case 4–CA–36746 that alleged a
violation of the Act by the unilateral implementation of certain
terms and conditions of employment.
A trial in these cases was conducted before me on January
15, 2010. Counsels for the General Counsel and the Employer
filed briefs in support of their positions on February 22, 2010.
On the entire record, I make the following findings, conclusions
of law, and recommendations.1
JURISDICTION
The complaints

allege, Kingsbury admits, and I find that at
all material times Kingsbury has been engaged in designing and
manufacturing tilt-pad, fluid film thrust and journal bearings for

1 The General Counsel’s unopposed posthearing motion to correct
the record is granted, as follows: at line 12 of p. 84 of the transcript, the
record is corrected to reflect that the sentence following the word
“Yes,” on line 12 and ending on line 13 with “are they?” is a question
that counsel for the General Counsel asked of the witness. The wit-
ness’s answer to this question begins on line 14 of p. 84 of the tran-
script.

KINGSBURY, INC. 1197
rotating machinery at its plant on Drummond Road in Philadel-
phia, Pennsylvania (Philadelphia operation). Kingsbury also
avers, and I find, that at all material times it has also been en-
gaged in designing and manufacturing rolling element ball and
roller bearings for rotating machinery. The complaints allege,
Kingsbury admits, and I find, that during the past year, Kings-
bury, in conducting its business operations, has purchased and
received at the Philadelphia operation goods valued in excess of
$50,000 directly from points outside the Commonwealth of
Pennsylvania. The complaints further allege, Kingsbury ad-
mits, and I find, that at all material times, Kingsbury has been
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. The complaints further allege,
Kingsbury admits, and I find based on the record evidence, that
at all material times, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects com-
merce and that the Board has jurisdiction of these cases, pursu-
ant to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES
BACKGROUND
Kingsbury manufactures two types of bearings at its Phila-
delphia operation. One is a roller bearing and the other a bear-
ing which relies on a film of oil, water, or hydraulic fluid.
These bearings are large items, manufactured for the oil and gas
industry, the U.S. Navy, and for use in nuclear power plants.
These are highly engineered products, and Kingsbury’s director
of Philadelphia manufacturing operations, Steven Koltenback,
estimated that 85-90 percent of the work at the Philadelphia
operation was custom work, as opposed to “repeat business.”
Kingsbury employs approximately 40 shop employees at the
Philadelphia operation. Shop employees (who have completed
their 120-day introductory period) are represented for purposes
of collective bargaining by KSEA. KSEA is an unaffiliated
independent union that has represented the Kingsbury Philadel-
phia operation shop employees since about 1967.

The Union and Kingsbury were parties to a three-year collec-
tive-bargaining agreement that expired December 15, 2008.
The parties have yet to reach a successor agreement. Employ-
ees worked under the existing terms and conditions of employ-
ment until January 21, 2009, when Kingsbury declared an im-
passe and implemented its pending contract proposal.2
A. The Contracting Out
I. FACTS
The production and machining of C housings and CH hous-
ings is work that is generally performed by the bargaining unit
employees. C and CH are different parts of the housings manu-
factured by Kingsbury and different equipment is required to
machine each type. (Union Vice President Jeffrey Johnson
testified that CH housings have an oil reservoir that the C hous-
ings do not have.)

2 The lawfulness of this implementation was disputed by the Union,
and the Government, but complaint allegations regarding it were with-
drawn prior to the hearing as part of a settlement.
In December 2008, prior to the expiration of the parties’ col-
lective bargaining agreement, Koltenback approached Union
President Steven Landis and Union Vice President Jeffrey
Johnson on the shop floor at their workstations and informed
them that Kingsbury needed to contract out a customer order
for C housings. Koltenback asserted that a lack of machine
availability and a lack of man hours warranted this contracting
out. Landis and Johnson told Koltenback that they wanted to
speak with other union committee members. Johnson ex-
plained at the hearing that neither he nor Landis machined
housings as part of their work, so they wanted to talk with a
committee member more familiar with this aspect of the opera-
tion before agreeing to Koltenback’s request.
They talked with employee Al DeRita. DeRita confirmed to
Landis and Johnson that “yes, there was a log jam in the area.
He said [the contracting out] wouldn’t be an issue to . . . the
guys that machine the housings.” However, DeRita added that
that “there were other parts to the housings that he was con-
cerned about.” Specifically, “[h]e wanted to know what was
going to happen with the CH parts of the housings.”
Landis and Johnson approached Koltenback about this.
Johnson’s undisputed and credited testimony was that “Kolten-
back [ ] assured us that CH housings would be done in house.”
Landis and Johnson told Koltenback it was “okay to send out
the C houses,” and Johnson handwrote up a document “to pre-
serve what we agreed on.” The document, dated December 3,
2008, and signed by Landis as KSEA President, read:

Management,

In the interest of preserving our labor agreement, we the
KSEA shop committee have agreed to the outsourcing of the
5 “C” housings. (13”)[.]

The KSEA Shop Committee stipulates that this is a “One
Time Deal” and ask that we be kept abreast of any and all ad-
ditional outsourcing needs.

On January 16, 2009, the Union received a notice from Kol-
tenback stating that four CH housings were being outsourced.
The notice stated:

We have exhausted all overtime options for the past two
weeks. Our only option to maintain customer requirements is
to outsource. In keeping with our commitment to KSEA, we
will outsource the following job to maintain production re-
quirements.

J501417–001 for a quantity of four (4), CH housings.

The same day the Union received this notice, January 16,
Johnson and others observed the CH housings being taken from
DeRita’s and another employee’s machines and being put on a
truck to be sent out.
Koltenback testified about the decision to contract out the
customer order for CH housings. The order composed five CH
housings, and the original intent was to produce all of them in
house. The first was completed when Kingsbury decided that
in order to be assured of meeting the customer’s demand that
the remaining four should be contracted out. While citing a
variety of reasons that he believed Kingsbury needed to con-
tract out the order (most of which the Union disagreed with, as
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1198
set forth in Johnson’s testimony and the grievance filed by the
Union), Koltenback admitted that the December 3, 2008
agreement with the Union on outsourcing played a role in the
decision. Koltenback agreed that the December 3, 2008 agree-
ment referred to C housings, and the January 16, 2009 out-
sourcing involved CH housings. He also agreed that they are
two different housings. However, Koltenback explained, es-
sentially, that when he outsourced the CH housings he mistak-
enly recalled that the December 3, 2008 agreement covered the
outsourcing of all housings, not just C housings:

I guess my memory at the time . . . when I actually outsourced
the CH housings, my recollection was that [in the December
3, 2008 agreement] we were actually soliciting agreement
from the KSEA to outsource all housings.
II. ANALYSIS
The Government alleges that the contracting out of the CH
housing, without providing the Union with advance notice and
an opportunity to bargain, violated Section 8(a)(5) of the Act.
Section 8(a)(5) of the Act makes it “an unfair labor practice
for an employer . . . to refuse to bargain collectively with the
representative of his employees.” 29 U.S.C. § 158(a)(5).3 “Uni-
lateral action by an employer without prior discussion with the
union does amount to a refusal to negotiate about the affected
conditions of employment under negotiation, and must of ne-
cessity obstruct bargaining, contrary to the congressional pol-
icy.” NLRB v. Katz, 369 U.S. 736, 747 (1962). An employer
violates Section 8(a)(5) of the Act if it makes a material unilat-
eral change during the course of a collective-bargaining rela-
tionship on matters that are a mandatory subject of bargaining.
“[F]or it is a circumvention of the duty to negotiate which frus-
trates the objectives of §8(a)(5) much as does a flat refusal.”
Katz, supra at 743; United Cerebral Palsy of New York City,
347 NLRB 603, 606 (2006).
“Subcontracting of bargaining unit work that does not consti-
tute a change in the scope, nature, or direction of the enterprise
but only substitution of one group of workers for another to
perform the same work is clearly a mandatory subject of bar-
gaining.” Spurlino Materials, Inc., 353 NLRB 1198, 1218
(2009). See, Fibreboard Paper Products Corp. v. NLRB, 379
U.S. 203, 211 (1964) (“To hold, as the Board has done, that
contracting out is a mandatory subject of collective bargaining
would promote the fundamental purpose of the Act by bringing
a problem of vital concern to labor and management within the
framework established by Congress as most conducive to in-
dustrial peace”); St. George Warehouse, Inc., 341 NLRB 904
(2004) (“Respondent’s unilateral transfer of unit work to tem-
porary agency employees violated Section 8(a)(5) and (1)”),
enfd. 420 F.3d 294 (3d Cir. 2005).
Before taking any unilateral action on a mandatory subject of
bargaining, an employer is required to provide the Union with
advance notice and an opportunity to bargain. “To be timely,
the notice must be given sufficiently in advance of actual im-
plementation of the change to allow a reasonable opportunity to
bargain. However if the notice is too short a time before im-

3 In addition, an employer who violates Sec. 8(a)(5) derivatively vio-
lates Sec. 8(a)(1). ABF Freight System, 325 NLRB 546 fn. 3 (1998).
plementation or because the employer has no intention of
changing its mind, then the notice is nothing more than inform-
ing the Union of a fait accompli.” Ciba-Geigy Pharmaceuti-
cals Division, 264 NLRB 1013, 1017 (1982) (footnotes omit-
ted), enfd. 722 F.2d 1120 (3d. Cir. 1983). “[A]n employer must
at least inform the union of its proposed actions under circum-
stances which afford a reasonable opportunity for counterargu-
ments or proposals.” Pontiac Osteopathic Hospital, 336 NLRB
1021, 1023 (2001), quoting NLRB v. Citizens Hotel, 326 F.2d
501, 505 (5th Cir. 1964). Toma Metals, 342 NLRB 787 fn. 4
(2004) (announcement of layoffs on day they occurred does not
satisfy duty to provide notice and opportunity to bargain).
In this case, it is not seriously disputed, that in January 2009,
Kingsbury contracted out bargaining unit work—the production
of the CH housings—without advance notice to the Union and,
therefore, without providing the Union with an opportunity to
bargain about Kingsbury’s desire to contract out the work. This
work was—indeed Kingsbury admits that it was (GC Exh. 1(g)
at ¶7(c))—a mandatory subject of bargaining. The contracting
out materially affected the employees: when shipped out the
work was taken from employees’ machines, the Union’s griev-
ance asserted that four employees lost work because of the
outsourcing, and Kingsbury paid an outside contractor
$53,700.00 to do the job. No notice was provided to the Union:
the work was taken out of the plant on January 16, 2009, the
same day that the Union was notified of Kingsbury’s intent to
contract out the work, clearly inadequate notice to permit bar-
gaining. The contracting out, in fact, was a subject eminently
suitable for bargaining and discussion had advance notice been
provided. Indeed, in December 2008 Kingsbury had ap-
proached the Union about its desire to contract out C housings,
and after discussion the Union agreed with Kingsbury on that
contracting out.4
In agreeing to the contracting out of the C housings, the Un-
ion made clear that it was not waiving its right to insist on bar-
gaining about, and to oppose other incidents of subcontracting.
Indeed, internally, at the time, the Union discussed its concern
about the making sure the CH housing work was not similarly

4 Kingsbury asserts (R. Br. at 11) that, notwithstanding its failure to
bargain, “due to a lack of capacity [ ] the four ‘CH’ housings at issue
could not have been performed by the bargaining unit.” The January
16 notice attributed the problem to “exhaust[ion]” of “overtime op-
tions.” In any event, these contentions should have been put to the
Union in the bargaining process. They are not a defense to the failure
to bargain. As the Supreme Court explained in Fibreboard Paper
Products Corp. v. NLRB, 379 U.S. 203, 211, 214 (1964):
One of the primary purposes of the Act is to promote the peaceful
settlement of industrial disputes by subjecting labor-management con-
troversies to the mediatory influence of negotiation. . . . To hold, as the
Board has done, that contracting out is a mandatory subject of collec-
tive bargaining would promote the fundamental purpose of the Act by
bringing a problem of vital concern to labor and management within
the framework established by Congress as most conducive to industrial
peace. . . .
. . . [A]lthough it is not possible to say whether a satisfactory solu-
tion could be reached, national labor policy is founded upon the con-
gressional determination that the chances are good enough to warrant
subjecting such issues to the process of collective negotiation. (foot-
note omitted.)
KINGSBURY, INC. 1199
contracted out. The Union’s letter to management agreeing to
the C housing outsourcing states that the Union “stipulates that
this is a “One Time Deal” and ask that we be kept abreast of
any and all additional outsourcing needs.” Given that any
waiver of the right to bargain over a mandatory subject such as
this must be “clear and unmistakable,”5 it is obvious that there
was no such waiver in this case with regard to the CH housings
work. Kingsbury—whose burden it is to show such a waiver,6
makes no such claim.7
Kingsbury, for its part, through Koltenback, essentially ad-
mitted that when he ordered outsourcing of the CH housings, he
relied on his mistaken recollection that the December 2008
agreement with the Union permitted the outsourcing of all
housings, not just the C housings.
That mistake is not a defense to the General Counsel’s con-
tention that Kingsbury had a duty to notify and offer to bargain
about its interest in subcontracting the CH housings order.
Allied Aviation Fueling of Dallas, 347 NLRB 248, 256 (2006).
Indeed, more generally, with regard to unilateral changes, mo-
tive is not relevant. A unilateral change in a mandatory subject
is a per se breach of the section 8(a)(5) duty to bargain, without
regard to the employer’s subjective bad faith. NLRB v. Katz,
369 U.S. at 743 (“though the employer has every desire to
reach agreement with the union upon an over-all collective
agreement and earnestly and in all good faith bargains to that
end. . . an employer’s unilateral change in conditions of em-
ployment under negotiation is [ ] a violation of § 8(a)(5)”).
Kingsbury’s unilateral subcontracting of the CH housings,
without providing advance notice to the Union and an opportu-
nity to bargain, violated Section 8(a)(5) and (1) of the Act.8

5 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
6 Proof of a contractual waiver is an affirmative defense “which must
meet a high standard” and it is the Respondent’s burden to show that a
contractual waiver is “‘explicitly stated, clear and unmistakable.’”
AlliedSignal Aerospace, 330 NLRB 1216, 1228 (2000) (quoting Lear
Seigler, Inc., 293 NLRB 446, 447 (1989)), review denied, 253 F.3d 125
(D.C. Cir. 2001); General Electric, 296 NLRB 844, 857 (1989), enfd.
mem. 915 F.2d 738 (D.C. Cir. 1990).
7 Kingsbury does not claim the Union waived its right to insist on
bargaining under the expired contract, the terms and conditions of
which employees were working under at the time of the contracting out
decision. The expired contract does contain provisions outlining the
circumstances under which contracting out may be allowed. See, GC
Exh. 2, Sec. 109 B “Subcontracting.” That clause provides for a multi-
factor conjunctive test, each prong of which must be satisfied before
work can be subcontracted. Based on the undisputed testimony, a
number of the provisions were not satisfied, and, in any event, “[i]t is
well settled that the waiver of a union’s right to bargain does not out-
live the contract that contains it, absent some evidence of the parties’
intentions to the contrary.” Ironton Publications, 321 NLRB 1048
(1996). These issues require no further consideration as Kingsbury
does not argue that its subcontracting of the CH housings was in accor-
dance with the terms of the expired labor agreement.
8 I add that, given my resolution of this matter, I do not reach the
question of whether, had notice been given, and had the parties bar-
gained to impasse on the question of the subcontracting of the CH
housings, whether the employer would have been privileged to imple-
ment the subcontracting of the CH housings. I mention this because the
subcontracting occurred in the midst of negotiations for a new collec-
tive-bargaining agreement and it is well-settled that while negotiations
B. The Information Request
I. FACTS
As referenced, above, on January 21, 2009, Kingsbury im-
plemented its bargaining proposal. The employees continued to
work under these new terms and conditions. A key change
from the status quo was the implementation of a more flexible
wage and job structure that vested more discretion with man-
agement. Under the old contract, wages were established by
job grade and class. Under the implemented terms, there was a
pay-for-knowledge provision that involved the concept of em-
ployees earning a portion of their pay based on demonstrated
knowledge of a second major job classification, which could be
filled by an employee only when management chose to post
and approve an opening for a second major job classification.
It was within the Employer’s discretion which employees re-
ceived a posted second major job classification. The imple-
mented terms also introduced the concept of a minor job classi-
fication, which, again, provided pay for employees based on
their performance of certain minor jobs, some of which re-
quired the demonstration of the possession of certain skills.
Once these terms and conditions were implemented, the Un-
ion no longer knew what the employees were being paid. Pre-
viously, that was calculable, based simply on an employee’s job
classification and grade. But with the new system, the Union
did not know which employees were receiving how much pay
under the pay-for-knowledge provisions.
Accordingly, the Union requested a detailed list of all the
employees’ pay-for-knowledge premiums and wages. Initially,
Landis requested this information orally at the end of April or
early May 2009, from Hugo Mercoli, the plant’s manufacturing
manager, at the weekly Wednesday meeting conducted by Mer-
coli with the union committee members.
Mercoli said he would get the information for the committee.
After a couple of weeks, the Union had not received the infor-
mation and asked for it again at the next Wednesday meeting.
Mercoli apologized, said that he had been busy and had not had
a chance to provide the information, but that he would. A cou-
ple of weeks later the Union still had not received the informa-
tion and Landis again asked Mercoli for it. This time Mercoli
said that [h]e could show us on his computer, but he didn’t

for a collective-bargaining agreement are ongoing “an employer’s
obligation to refrain from unilateral changes extends beyond the mere
duty to give notice and an opportunity to bargain; it encompasses a duty
to refrain from implementation at all, unless and until an overall im-
passe has been reached on bargaining for the agreement as a whole.”
Bottom Line Enterprises, 302 NLRB 373, 374 (1991) (emphasis added)
(footnote omitted), enfd. mem. 15 F.3d 1087 (9th Cir. 1994). Accord,
Intermountain Rural Electric Ass’n, 305 NLRB 783, 786 (1991) (dur-
ing negotiations for a new collective bargaining agreement, absent
union waiver of the right to bargain over an issue, “an employer must
not only give notice and an opportunity to bargain, but also must refrain
from implementation unless and until impasse is reached on negotia-
tions as a whole”) (footnote omitted), enfd. 984 F.2d 1562 (10th Cir.
1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1200
think we were to have that information.” Mercoli declined to
provide the Union a copy of the information.9
On September 22, 2009, the Union requested the information
in writing, and provided the written request to Mercoli. The
letter, written and signed by Johnson as KSEA vice president,
and addressed to “Kingsbury Management,” stated:

The KSEA is requesting a detailed summary of all shop em-
ployees[‘] wages, pay for knowledge premiums and 2nd ma-
jor premiums, so that we can better serve our members.”

Kingsbury responded the next day, September 23, 2009. In a
memo from Koltenback, the Employer explained:

We respect the privacy of each employee. It is our practice
not to divulge employee’s wages to anyone, except the em-
ployee.

Kingsbury will review each employee’s wage summary with
the employees individually, upon their request.

The Union filed a grievance, which Kingsbury denied in a
memo from Koltenback dated September 28, 2009. In this
memo, Koltenback reiterated the position he had taken in the
September 23 memo.
At that point, Koltenback consulted with counsel, who, ac-
cording to Koltenback, “help[ed] us understand what our re-
sponsibility was.” Shortly thereafter, on October 1, Kingsbury
provided the requested information to the Union. However, the
information was inaccurate. (The nature of the inaccuracies are
not explained in the record.) A week or two later Kingsbury
supplied an accurate copy of the requested information to the
Union.
II. ANALYSIS
The General Counsel contends that Kingsbury violated the
Act by failing to provide the Union with requested and accurate
wage information regarding the bargaining unit employees—
first requested in late April or early May 2009—until mid-
October 2009.
Board precedent with regard to this issue is well established:

An employer, on request must provide a union with informa-
tion that is relevant to its carrying out its statutory duties and
responsibilities in representing employees. NLRB v. Acme
Industrial Co., 385 U.S. 432 (1967); Dodger Theatricals, 347
NLRB 953, 867 (2006). The duty to provide information in-
cludes information relevant to contract administration and ne-
gotiation. National Broadcasting Co., 352 NLRB 90, 97
(2008); Pulaski Construction Co., 345 NLRB 931, 935
(2005).

Where the requested information concerns terms and
condition of employment of employees within the bargain-
ing unit, the information is presumptively relevant, and the
employer has the burden of proving lack of relevance. AK
Steel Co., 324 NLRB 173, 183 (1997); Samaritan Medical
Center, 319 NLRB 392, 397 (1995). . . .

9 These findings are based on Johnson’s credited testimony. Mercoli
testified but was not asked about this subject.
Further, an employer must respond to the information
request in a timely manner. Woodland Clinic, 335 NLRB
735, 736 (2006); Samaritan Medical Center, supra at 398;
Leland Stanford University, 307 NLRB 75, 80 (1992). An
unreasonable delay in furnishing such information is as
much of a violation of Section 8(a)(5) of the Act as a re-
fusal to furnish the information at all. Woodland Clinic,
[331 NLRB 735, 737 (2000)]; Valley Inventory Service,
295 NLRB 1163, 1166 (1989).

Monmouth Care Center, 354 NLRB 11, 51 (2009).
It is not incumbent on the General Counsel to prove that the
Respondent was motivated by bad faith in failing to provide
relevant requested information. Like a unilateral change, “[t]he
refusal of an employer to provide a bargaining agent with in-
formation relevant to the Union’s task of representing its con-
stituency is a per se violation of the Act.” Brooklyn Union Gas
Co., 220 NLRB 189, 191 (1975); Procter & Gamble Mfg. Co.,
237 NLRB 747, 751 (1978), enfd. 603 F.2d 1310 (8th Cir.
1979).
In this case the Respondent concedes that the requested in-
formation was relevant to the Union’s representational duties
(Tr. 20). It is hard to imagine information more relevant or
central to the Union’s role than wage information related to the
employees the Union represents. In any event, no evidence was
offered to defeat the presumptive relevance to the Union’s du-
ties of this requested information. Bryant & Stratton Business
Institute, 321 NLRB 1007 fn. 4 (1996).
This type of information—employee wages under the vari-
ous implemented pay schemes—should have been readily
available. The Respondent does not claim it was not. Appar-
ently Mercoli had access to the information on his computer,
but he refused to provide a copy of the information to the Un-
ion. The Union should have been provided this information
within days—especially as the information was accessible on
Mercoli’s computer—of the first oral request. No explanation
for Mercoli’s failure to provide the information has been of-
fered. (As referenced, above, Mercoli testified but was not
asked about this issue.) Initially, he agreed to provide the in-
formation, but never did so. “Absent evidence justifying an
employer’s delay in furnishing a union with relevant informa-
tion, such a delay will constitute a violation of Section 8(a)(5)
inasmuch ‘as the Union was entitled to the information at the
time it made its initial request, [and] it was Respondent’s duty
to furnish it as promptly as possible.’” Woodland Clinic, 331
NLRB 735, 737 (2000) (Board’s brackets), quoting, Pennco,
Inc., 212 NLRB 677, 678 (1974).
Similarly, Koltenback refused to provide the requested in-
formation to the Union after the September 2009 written re-
quest, on grounds that the information was confidential and that
individual wage information could be released only to an indi-
vidual employee requesting his own wage information. This
bald rationale does not pass muster under Board precedent,10 as
Koltenback apparently learned when he consulted counsel.
Johnson’s assertion at trial that the information provided Octo-
ber 1 was incorrect was not disputed by Kingsbury. No expla-

10 Bryant & Stratton Business Institute, 321 NLRB at 1007 fn. 4
(1996).
KINGSBURY, INC. 1201
nation for the provision of erroneous information or the reason
for the delay until approximately mid-October to provide the
correct information has been offered.
Kingsbury’s failure and refusal to supply the wage informa-
tion requested by the Union until mid-October 2009, violated
Section 8(a)(5) and (1) of the Act.
C. The Discharge of Union President Landis
I. FACTS
Kingsbury and the Union have long operated under an
agreement providing that nonbargaining unit employees would
not perform unit work at the Philadelphia operation without
prior written request to the Union and agreement by the Union.
A memorandum dated April 4, 2001, signed by the Union and
the Employer, provided the formal basis for this agreement. It
stated:

AGREEMENT FOR USE OF NON BARGAINING UNIT
PERSONNELL

Employees and non-employees of this company not covered
by the Collective Bargaining Agreement shall not perform
any of the work regularly performed by employees covered
by the agreement.

In the event that Kingsbury Inc. deems it necessary to employ
the services of any person(s) not covered by the Collective
Bargaining Agreement to perform any of the work regularly
performed by the employees covered by the agreement it shall
first request permission of the KSEA. Said request will be in
writing and contain the following:

1. Reasons for the use of non Bargaining Unit employees
2. Duties that will be performed
3. Equipment that will be used
4. Duration of use of non Bargaining Unit person[nel].

The KSEA will make every effort to grant such requests and
appreciates this opportunity [to] resolve this matter with you.

The Union viewed this agreement as still effective after expi-
ration of the contract, and there is no evidence, or suggestion by
Kingsbury, that it was not part of the implemented terms and
conditions of employment.
Landis has worked at Kingsbury since 2004. He has been
the president of the KSEA since approximately Spring 2008.
He was involved in the failed negotiations, the dispute over the
CH housings subcontracting, and the efforts of the Union to
obtain wage information from Kingsbury. He signed the unfair
labor practice charge, and the amended charge filed on behalf
of KSEA in Case 4–CA–36746 (the subcontracting dispute).
On the morning of September 17, 2009, Landis was at work.
Shortly after 8 a.m., he noticed an employee from Kingsbury’s
R&S division plant in Hatboro, Pennsylvania, was on the plant
floor moving skids with an electric pallet jack. Landis knew
the employee, Eric Shields (who used to work at the Philadel-
phia operation), was not supposed to be performing this bar-
gaining unit work. No one from management had notified the
Union that anyone outside the unit would be performing unit
work at the Philadelphia operation.
When Landis saw Shields moving the skids, Landis “walked
further down the shop floor” toward Shields, who was moving
away from Landis. Landis yelled, [“]Yo, dude, stop. What are
you doing?” Shields told Landis what he was doing and Landis
told him, “they can’t be having you do that.” Landis mentioned
to Shields that there were four employees on layoff and he told
Shields he was going to see Hugo Mercoli about it. Landis’
encounter with Shields lasted “a minute, maybe, if that.”
Landis walked to the nearest phone on the shop floor, which
was just a few seconds away, and paged Mercoli. However,
Mercoli was in a production meeting in his office and, there-
fore, did not respond to the page. Landis went to Mercoli’s
office. Mercoli’s office has a big window overlooking the shop
and Landis saw through the window that Mercoli was having a
meeting with some of the supervisors. Landis gestured through
the window to Mercoli that he needed to come in and talk.
Mercoli observed that Landis looked upset and waved Landis
in. Landis entered and told Mercoli “I wanted to know why
Eric was in there doing work, that he couldn’t be in here doing
work, because we had four guys on the street and that he
needed to stop doing the work.” Landis told Mercoli, “I have
four fucking guys out on the street. I’m not going to have
someone come in here from R&S and do their job.” Landis
told Mercoli that Mercoli had to get Shields to stop. Mercoli
inquired further and Landis explained what he had seen, and
told Mercoli that “I told [Shields] he had to stop what he was
doing, cause I have four guys on layoff.” Mercoli pointed out
that Shields’ moving pallets had nothing to do with the four
employees (who were from different departments) being on
layoff, but he did not disagree with Landis that Shields should
not be moving the skids. Mercoli told Landis he would have
someone else move the skids. Landis left, and Mercoli, along
with the supervisor in charge of the area, went to find Shields.
They found Shields in the shipping area and he explained what
had happened, which was consistent with the account offered
by Landis. The supervisor for the area who accompanied Mer-
coli then got a bargaining unit employee to move the skids
instead of Shields. Mercoli walked toward the middle of the
shop and found Landis. Landis made a point of telling Mercoli
that he had not told Shields to stop the work, and Mercoli in-
sisted that Landis had just told him that when Landis had en-
tered Mercoli’s office, and that Shields had also confirmed it.
Landis walked away.
That day Mercoli discussed the incident with Koltenback.
Koltenback asked Mercoli to put together a statement setting
forth what had occurred and Mercoli prepared such a statement,
which is dated September 17, the day of the incident. The sub-
ject line of Mercoli’s memo is listed as “Employee interfering
with production.”11

11 I deem it unnecessary to reprint Mercoli’s memo here. It is in the
record as GC Exh. 18. As mentioned, above, it is Mercoli’s full ac-
count of the incident. It is essentially consistent with the account Mer-
coli gave at trial. It is mostly consistent with Landis’ account as well,
although it does repeat and emphasize the point that Landis told Shields
to stop. Although the memo does not mention discipline, it is notable
that the subject line of Mercoli’s memo—”Employee interfering with
production,” which was the grounds for discharging Landis—suggests
that the memo was prepared in anticipation of discharging Landis.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1202
The next morning, September 18, around 10 a.m., Landis
was paged by Union Vice President Johnson to a meeting in the
cafeteria. He went accompanied by Johnson. When they ar-
rived Mercoli was there, along with Ann Marie Heavey, the
human resources manager, and Heather Traska, a human re-
sources generalist. Koltenback and another individual were
there. Johnson and Landis were told to sit. Koltenback read a
termination notice to Landis explaining that he was discharged.
The notice that Koltenback read was in the form of a memo
from Koltenback to KSEA, dated September 18, and stated:

Re: Steve Landis, Group I violation “N,” “participation in a
work stoppage, causing a production slowdown, or interfering
with the rest of production.”

Steve Landis is hereby discharged for his action on 17 Sep-
tember 2009 as stated in the attached document;

Date: September 17, 2009
To: Steve Koltenback
From: Hugo Mercoli (Manufacturing Manger)
Subject: Employee interfering with production

Section 6.01 GROUP VIOLATIONS

Violations of any of the following rules will be considered
adequate cause for discharge for the first offense:

N. Participation in a work stoppage, causing a production
slowdown, or interfering with the rest of production.

The memo referenced in the discharge notice was the state-
ment prepared by Mercoli on September 17, at the direction of
Koltenback that day.
After Koltenback read the memo, Heavey read Landis his
rights under COBRA, which Landis told her he knew and did
not need to hear. Landis told Johnson to contact the union’s
attorney and did not otherwise respond to Koltenback. Landis
was escorted to the maintenance shop to retrieve some of his
personal belongings, and was told he could make arrangements
to retrieve the rest of his items over the weekend. With that
Landis’ employment ended.
Koltenback testified that he made the decision to discharge
Landis. Asked why Landis was discharged, Koltenback testi-
fied:

Primarily, that our contract and past contracts in Group 1 vio-
lations stipulates that for violation of Rule N or 15 in the pre-
vious contract for stopping work, or imposing, or restricting
work that the immediate disciplinary action is discharge.

In fact, the rules to which Koltenback referred state that
Group I violations are “adequate case for dismissal on first
offense”—they do not stipulate or mandate “that the immediate
disciplinary action is discharge.” These rules are in the expired
labor agreement and in the unilaterally implemented proposal,
under Article VI, entitled “Rules of Conduct.” Rule N (or 15)
states: “ Participation in a work stoppage, causing a production
slowdown, or interfering with the rest of production.” Accord-
ing to Koltenback, the portion of that rule that Landis violated
was “[i]nterfering, basically, with production.”12
Asked if he considered anything other than the violation of
this rule, Koltenback testified:

In any union /management relationship, it’s a cardinal rule to
grieve second work first. So, in any violation, regardless, it
should be the action of whoever has a complaint to come to
management with that or grieve it, but not to interfere with
whatever is taking place.

Koltenback agreed that it was “inappropriate for Mr. Shields
to do the work that he was doing on that day” and agreed “that
management ended up agreeing with [Landis], that [Shields]
shouldn’t be doing that work.”
Koltenback insisted that Philadelphia operations manage-
ment did not direct Shields to perform the bargaining unit work
that he performed and would not have done so. Indeed, Kol-
tenback denied that he or his management team at the Philadel-

12 Section 6 of the implemented proposal, which contains the list of
rules, including the one under which Landis was disciplined, states, in
relevant part:

Section 6.00 RULES OF CONDUCT

The safe, orderly and efficient operation of the Philadelphia Division
requires that certain standards of performance and conduct be main-
tained by all employees. The goal of this constructive discipline pro-
gram is to provide a reasonable opportunity for you to correct any de-
ficiency in performance and/or behavior. For violation of company
rules and regulations, deficiencies in performance, or any other con-
duct that warrants action, the following steps will normally be taken:

NOTE: The following are intended to be guidelines and not hard and
fast rules. These rules have been developed to assist in determining the
appropriate disciplinary response and as such must be tempered with
judgment, fairness, and common sense.

Any reference to company property includes inside the plant, office,
on the company grounds or in company vehicles.

Three (3) factors will be considered in all applications of this construc-
tive disciplinary program.

A. The seriousness of the offense.
B. The employee’s past record.
C. The circumstances surrounding the particular case.

Types of Violations:

Group I violations: Misconduct considered adequate cause for
dismissal on first offense.

Group II violations: Misconduct generally justifying a combination
of written, suspension, probation or discharge.

Group III violations: absence, lateness, and early quit. Conduct gen-
erally justifying a combination of written, suspension, probation or
discharge.

Section 6.01 GROUP I VIOLATIONS

Violations of any of the following rules will be considered
adequate cause for discharge for the first offense:
* * * * * *

N. Participation in a work stoppage, causing a production slowdown,
or interfering with the rest of production.
KINGSBURY, INC. 1203
phia operation had the authority to tell Shields to perform that
work if they wanted to do so:

No. Eric [Shields] works for a different division. I have no
authority over that division. . . . I do not have authority to di-
rect another division and its employees.

Asked to clarify these statements, Koltenback explained that
he could stop Shields from engaging in misconduct or violating
terms and conditions of employment generally: “it was our
responsibility to stop him or any outside person who is not part
of the bargaining unit.” Koltenback compared Shields, an out-
side nondivision employee, to the employee of any outside
supplier who comes onto plant property. He could be stopped
from committing a violation of plant rules. For example, Kol-
tenback explained “[i]f a supplier comes in and he’s not wear-
ing safety glasses, he’s violating the safety rule, I would ask
him to put his safety glasses on.” Koltenback explained that
the supplier would be expected to do that “[o]r he wouldn’t be
allowed in the facility.” However, Koltenback explained that
he did not have authority to direct Shields to perform work, any
more than he could direct a supplier’s employee: “in terms of
directing him go do this work or that work, we do not. It’s the
same thing [as with a supplier’s employee].”
The Union filed a grievance over Shield’s performance of
unit work. Kingsbury responded to the grievance on September
19, the day after Landis’ termination, in a memo from Kolten-
back:

Re: Grievance – Use of a non-bargaining unit member to
move skids of work that could have been done by a bargain-
ing unit member as per the document signed by both parties
agreeing that there is to be no non-bargaining unit member
doing any work without the consent of the KSEA.

On the 18th of September 2009, an employee of the R&S di-
vision entered the Philadelphia building without the knowl-
edge of management and moved skids of work without the
knowledge or direction of management.

On September 18th 2009, the R&S division was, again, di-
rected by the Philadelphia division not to perform any work in
the Philadelphia facility. Furthermore, the R&S division has
been instructed to solicit the help of a Philadelphia KSEA
employee in the completion of any work.

One final factual matter of potential relevance. The General
Counsel elicited testimony from employees, undisputed by
Kingsbury, that employees working in the shop are free to stop
working, at their own discretion, even when not on break, to
make and receive personal phone calls through the company
phone system. When they take the time to make or receive a
call, they, obviously, cease working for a few minutes. Simi-
larly, there are coffee machines available to employees within
another building in the facility. Employees are free, even when
not on break, and again, at their own discretion, to cease work
for a few minutes to go get a coffee and may bring it back to
their workstation. If an employee is coming from the shipping
and receiving area of the plant, this trip for coffee can take
three to four minutes each way. In his testimony, Koltenback
acknowledged these practices but added that they were not
violations of any of the work rules of the contract (or imple-
mented terms and conditions).
II. ANALYSIS
The General Counsel alleges that the discharge of Union
President Landis violated the Act. He offers two distinct theo-
ries in support of this claim.
First, the General Counsel contends that Kingsbury dis-
charged Landis in violation of Section 8(a)(1) of the Act for
engaging in activities protected by Section 7 of the Act. The
General Counsel contends that Landis was discharged for en-
forcing the existing terms and conditions of employment in the
plant, which prohibited nonbargaining unit employees, such as
R&S employee Shields, from performing bargaining unit work.
This theory assumes that the motivation for Landis’ discharge
was, as Kingsbury asserts, his actions during the incident with
Shields that allegedly “interfered with production” by causing
Shields to stop moving the pallets while Landis talked to him,
and then paged, and then went to find management.
Second, and alternatively, the General Counsel alleges that
Landis was discharged in retaliation for his union activities.
Under this theory, Landis’ union activity, and not, as the Re-
spondent claims, the incident with Shields, was the motivating
factor in Landis’ discharge. This theory, if proven, would con-
stitute a violation of Section 8(a)(3) of the Act.
I will first consider the General Counsel’s contention that
Landis was unlawfully discharged, in violation of Section
8(a)(1), for his actions during the incident with Shields.
Section 8(a)(1) of the Act states that it is an unfair labor
practice for an employer “to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section 7
[of the Act].” 29 U.S.C. § 158(a)(1). Rights guaranteed by
section 7 include the right to engage in “concerted activities for
the purpose . . . of mutual aid or protection.” 29 U.S.C. § 157.
An employee’s discipline independently violates Section
8(a)(1) of the Act, without regard to the employer’s motive, and
without regard to a showing of animus, where “the very con-
duct for which [the] employee [is] disciplined is itself protected
concerted activity.” Burnup & Sims, Inc., 256 NLRB 965, 976
(1981).
However, the “fact that an activity is concerted . . . does not
necessarily mean that an employee can engage in the activity
with impunity.” NLRB v. City Disposal Systems, Inc., 465 U.S.
822, 837 (1984). “[T]here is a point when even activity ordi-
narily protected by Section 7 of the Act is conducted in such a
manner that it becomes deprived of protection that it otherwise
would enjoy.” Indian Hills Care Center, 321 NLRB 144, 151
(1996). See, NLRB v. Washington Aluminum Co., 370 U.S. 9,
17 (1962).
“When an employee is discharged for conduct that is part of
the res gestae of protected concerted activities, the pertinent
question is whether the conduct is sufficiently egregious to
remove it from the protection of the Act.” Stanford NY, LLC,
344 NLRB 558 (2005); Aluminum Co. of America, 338 NLRB
20 (2002); Ogihara America Corp., 347 NLRB 110, 112 (2006)
(“The Board has held that where ‘an employee is discharged for
conduct that is part of the res gestae of protected activities, the
relevant question is whether the conduct is so egregious as to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1204
take it outside the protection of the Act, or of such character as
to render the employee unfit for service’”) (quoting, Guardian
Industries Corp., 319 NLRB 542, 549 (1995), citing Consumer
Power Co., 282 NLRB 130, 132 (1986)).
“It is well settled, however, that not every impropriety com-
mitted in the course of Section 7 activity deprives the offending
employee of the protection of the Act. A line must be drawn
between situations where employees exceed the bounds of law-
ful conduct in a moment of exuberance or in a manner not acti-
vated by improper motives and those flagrant cases in which
misconduct is violent or of such serious character as to render
the employees unfit for further service.” J.W. Microelectronics
Corp., 259 NLRB 327 (1981), enfd. mem. 688 F.2d 823 (3d
Cir. 1982). “The employee’s right to engage in concerted ac-
tivity permits some leeway for impulsive behavior, which must
be balanced against the employer’s right to maintain order and
respect. Where the conduct occurs in the course of protected
activity, the protection is not lost unless the impropriety is
egregious.” Coors Container Co., 238 NLRB 1312, 1320
(1978) (profanity), enfd. 628 F.2d 1283 (10th Cir. 1980).
In this case, the facts of Landis’ actions are not in significant
dispute. Landis saw Shields performing work that Landis, cor-
rectly, suspected to be bargaining unit work. He also knew that
the existing terms and conditions of employment prohibited
nonbargaining unit employees, including R&S employees from
Hatboro, such as Shields, from performing this work. The
Philadelphia operation head Koltenback agreed that Shield
should not have been performing this bargaining unit work.
Indeed, according to Koltenback, Shields was not authorized to
do this work and had not been instructed or authorized to do it
by management.
Landis approached Shields yelling “stop. What are you do-
ing.” When Shields told him, confirming Landis’ concerns, he
told Shields “they can’t be having you do that,” and Landis
referenced that there were employees on layoff. Landis told
Shields he was going to get Mercoli. Landis stepped away to a
phone and paged Mercoli. When management did not respond
he went to get Mercoli so that management could intervene.
There is some dispute among the parties as to whether Landis
told Shields to “stop” as a means of getting his attention to talk
to him and find out what he was doing, or told him to “stop”
performing the work. I find that the narrow dispute about
Landis’ use of the word “stop” not important. Without regard
to the initial use of the word “stop,” I agree that Landis con-
veyed to Shields that he should cease performing the work
while Landis asked him what he was doing and then went, first
to page, and then to find the manufacturing manager. Landis
did not, in any way, force Shields to stop working. However,
through his interaction with Shields, Landis intended to convey
that Shields should stop working, he did convey this, and, on
account of Landis, Shields did stop working while Landis went
to get the plant’s manufacturing manager Mercoli.
It is beyond cavil that an honest and reasonable assertion of
collectively-bargained based rights—even if, unlike here, it is
incorrect—is protected and concerted activity. NLRB v. City
Disposal Systems Inc., 465 U.S. 822 (1984) (endorsing Board’s
view that employee’s refusal to perform work as ordered (driv-
ing a truck in this instance) because of his honest and reason-
able invocation of a contractual right is protected and concerted
activity); Tillford Contractors, 317 NLRB 68, 69 (1995).13
The Board’s decision in Tillford Contractors, supra, is in-
structive. In that case a union job steward, Battoe, believed that
another employees’ presence at the job site, Baucum, “argua-
bly” violated the contract if Baucum was there working as an
area foreman. The steward Battoe approached Baucum, in-
quired whether he was there as an area foreman, threatened to
file internal union charges against him, and told him, according
to the credited testimony: “You’ve got no goddamn business
being here,” and “The best thing you could do is get the hell
away from us.” Baucum responded by attempting to call the
union business agent to determine whether the contract prohib-
ited him from being on the job. Unable to reach the business
agent, he went to the employer’s office and, along with the
owner, reviewed the contract. They determined that, contrary
to the union steward’s view, the employee was permitted to
work at the jobsite as an area foreman. Based on the steward
telling the employee that he had no “goddamn” business being
on the job, the employer discharged the steward because “he
could not abide an employee ‘talking back’ and “sticking his
nose where he had no business.”
The Board found the employer violated the Act by discharg-
ing Battoe:

Battoe, in attempting to ascertain Baucum’s job status,
was engaged in protected concerted activity. The informa-
tion he sought was necessary in order to determine
whether the Respondent was violating the collective-
bargaining agreement. When an employee makes an at-
tempt to enforce a collective-bargaining agreement, he is
acting in the interest of all employees covered by the con-
tract. It has long been held that such activity is concerted
and protected under the Act. Interboro Contractors, 157
NLRB 1295 (1966). An employee making such a com-
plaint need not specifically refer to the collective-
bargaining agreement. As long as the nature of the com-
plaint is reasonably clear to the person to whom it is com-
municated, and the complaint does, in fact, refer to a rea-
sonably perceived violation of the collective-bargaining
agreement, the complaining employee is engaged in the
process of enforcing that agreement. . . .
We find that Battoe did not engage in conduct which
removed him from the Act’s protection. His comments to
Baucum that he had ‘‘no goddamn business’’ on the job
and that ‘‘the best thing [he] could do was to get the hell
away,’’ were directly related to his protected and con-
certed activity of attempting to enforce the collective-

13 The cited cases involve enforcement of the terms of a collective-
bargaining agreement. Here there was no contract in effect. Landis
was seeking to police and enforce the existing terms and conditions of
employment, which were based on the recently implemented proposal.
The distinction, if it is of significance at all, could only bolster protec-
tion for Landis’ conduct as any waiver of statutory contained in the
labor agreement that might be implicated by the conduct “does not
outlive the contract that contains it, absent some evidence of the par-
ties’ intentions to the contrary.” Ironton Publications, 321 NLRB 1048
(1996).
KINGSBURY, INC. 1205
bargaining agreement. In order for an employee engaged
in such activity to forfeit his Section 7 protection his mis-
conduct must be so ‘‘flagrant, violent, or extreme’’ as to
render him unfit for further service. United Cable Televi-
sion Corp., 299 NLRB 138 (1990), quoting Dreis &
Krump Mfg., 221 NLRB 309, 315 (1975), enfd. 544 F.2d
320 (7th Cir. 1976). It is undisputed that Battoe did not
threaten or engage in acts of violence. Further, although
the Respondent characterizes Battoe’s conduct as insubor-
dinate, at most, his conduct was profane and disrespectful.
It is well established that some profanity and even defi-
ance must be tolerated during confrontations over contrac-
tual rights. We find that Battoe’s conduct was not so fla-
grant or extreme as to remove him from the Act’s protec-
tion. We therefore find that the Respondent discharged
Battoe for engaging in protected activity in violation of
Section 8(a)(3) and (1) of the Act.

317 NLRB at 68–69 (footnote omitted).

The instant case is similar. It is not a very difficult decision
to conclude that Landis was engaged in protected activity in his
encounter with Shields. As in Tillford Contractors, Landis
approached the employee he suspected of offending the terms
and conditions of employment and asked him what he was
doing there. Unlike the steward in Tillford, Landis did not
threaten Shields, curse Shields, or tell him to “get the hell away
from us.” In Tillford, the challenged employee ceased working
and began investigating whether he was supposed to be at the
jobsite in the capacity of area foreman. Here, Landis did not
leave it to Shields to figure that out: Landis paged and then
went directly to the manufacturing manager, alerting him to the
situation and Kingsbury management intervened in support of
Landis. The essence of Landis’ conduct was the protected and
concerted activity of investigating, policing, and enforcing the
terms and conditions of employment.
Kingsbury contends that Landis was not engaged in pro-
tected activity until he reported Shields to Mercoli. That is
wrong. Landis’ entire encounter with Shields, from his initial
inquiry of Shields of what he was doing, to the efforts to have
management intervene to end Shields’ performance of bargain-
ing unit work, was action taken as part of an effort by Landis to
police and enforce the existing terms and conditions of em-
ployment. That was his purpose, and his actions and com-
ments, particularly regarding the concern about laid off work-
ers, fully support that conclusion. No other motive or purpose
is even remotely suggested by the record or the parties.

It is equally clear that in this case, the portion of Landis’
conduct to which Kingsbury objects—Landis causing Shields
stop moving the pallets—was part of the res gestae of Landis’
protected conduct of policing and enforcing the terms of condi-
tions of employment. The act of having Shields stop moving
pallets cannot be isolated from Landis’ protected and legitimate
conduct of questioning Shields and then immediately reporting
the situation to management. Landis first yelled “stop” to
Landis to speak to him and ask what he was doing. The direc-
tion (whether implicit or explicit) for Shields to stop moving
the pallets was effective while Landis paged, and then went
and found management so it could intervene. It was “directly
related to his protected and concerted activity of attempting to
enforce the collective-bargaining agreement.” Tillford, supra.
Even conceding, arguendo, that Landis should not have encour-
aged or directed Shields to stop moving the pallets while
Landis went to get management, the direction was inextricably
part of—it makes no sense apart from—Landis’ effort to en-
force the terms and conditions of employment.
In arguing that Landis’ conduct was not protected, Kings-
bury’s chief contention is that Landis’ conduct violated work
rule N, in section 6.01 of the unilaterally implemented last offer
(a rule that was also in the expired contract as rule 15 of section
6.01). That rule states that an employee’s “Participation in a
work stoppage, causing a production slowdown, or interfering
with the rest of production” is “adequate cause for discharge.”
Of course, Kingsbury cannot implement or enforce a rule
that disciplines an employee for protected conduct. NLRB v.
Washington Aluminum Co., 370 U.S. 9, 16–17 (1962); Con-
sumers Power Co., 282 NLRB 130, 132 (1986) (“Respondent’s
disciplinary policy cannot, at any rate, lawfully ‘mandat[e]’ that
Knight be discharged in violation of Sec. 8(a)(1).”).
However, this is not Kingsbury’s claim. Rather, Kingsbury
contends that work rule N constitutes a waiver by the Union of
employee rights statutory rights to engage in conduct, otherwise
protected, that violates the rule. NLRB v. City Disposal System,
supra at 837 (“if an employer does not wish to tolerate certain
methods by which employees invoke their collectively bar-
gained rights, he is free to negotiate a provision in his collec-
tive-bargaining agreement that limits the availability of such
methods. No-strike provisions, for instance, are a common
mechanism by which employers and employees agree that the
latter will not invoke their rights by refusing to work. In gen-
eral, if an employee violates such a provision, his activity is
unprotected even though it may be concerted”).
However, in this case, the claim that the Union has waived
its statutory rights through work rule N is unsustainable, for a
number of reasons. The issue is one of waiver and work rule
N—which is the no-strike clause contained in the expired con-
tract—is of a kind typically found in labor agreements. It was
reproposed, unchanged, and undiscussed as far as the record
reveals, as part of Kingsbury’s final offer that was unilaterally
implemented in January 2009. The lawfulness of Kingsbury’s
implementation of its final offer is not at issue in these cases.
But a unilateral implementation does not amount to or equate to
a waiver of statutory rights by the Union. While the Union may
have agreed to this no-strike clause as part of the contract in the
past, and while one may expect that it would have agreed to this
same clause in a new contract—no contract has been reached.
The implemented final offer is not, contrary to the Respon-
dent’s shorthand description, an implemented contract. It is an
implemented proposal, to which the Union has not bound itself,
and through which Kingsbury cannot unilaterally impose a
waiver of statutory rights. If, for instance, in response to
Shields’ performance of bargaining unit work, Landis had
called a strike, Kingsbury would not be in a position to argue
that the no-strike clause of the expired contract, or its unilater-
ally implemented proposal permitted it to discharge the em-
ployees for striking. See Industrial Hard Chrome, LTD, 352
NLRB 298, 311 fn. 11 (2008) (no-strike clause not enforceable
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1206
to waive employees’ right to conduct work stoppage after expi-
ration of the contract and during bargaining for new contract).
A strike would, to say the least, constitute interference with
production far beyond that of which Landis is accused here.
But be it a strike or telling an interloper to stop working while
the union president checks it out with management, there is no
waiver of statutory rights by the Union.14
Second, even assuming, very wrongly, that these unilaterally
implemented work rules did constitute an agreed-to waiver of
statutory rights, the claim that the rule against “interfering with
the rest of production” waives Landis’ otherwise protected
conduct is untenable. The question is not whether the language
of this phrase, plucked from the context of the rule itself, could
conceivably be interpreted the way Kingsbury contends, but
whether the contract—or other evidence—demonstrates a
“clear and unmistakable” waiver of statutory rights. Metropoli-
tan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983) (“we will
not infer from a general contractual provision that the parties
intended to waive a statutorily protected right unless the under-
taking is ‘explicitly stated.’ More succinctly, the waiver must
be clear and unmistakable”). “To meet the ‘clear and unmis-
takable’ standard, the contract language must be specific, or it
must be shown that the matter claimed to have been waived
was fully discussed by the parties and that the party alleged to
have waived its rights consciously yielded its interest in the
matter.” Allison Corp., 330 NLRB 1363, 1365 (2000); Georgia
Power Co., 325 NLRB 420–421 (1998) (“either the contract
language relied on must be specific or the employer must show
that the issue was fully discussed and consciously explored and
that the union consciously yielded or clearly and unmistakably
waived its interest in the matter”), enfd. 176 F.3d 494 (11th Cir.
1999); Lear Siegler, Inc., 293 NLRB 446, 447 (1989) (waivers
of employee rights must, however, be explicitly stated, clear
and unmistakable). Proof of a contractual waiver is an affirma-
tive defense and it is the Respondent’s burden to show that the
contractual waiver is explicitly stated, clear and unmistakable.
Allied Signal Aerospace, 330 NLRB 1216, 1228 (2000), review
denied 253 F.3d 125 (2001); General Electric, 296 NLRB 844,
857 (1989), enfd. mem. 915 F.2d 738 (D.C. Cir. 1990).
Kingsbury claims that the portion of rule N barring “interfer-
ence with the rest of production” was squarely violated by
Landis, and any conduct that falls within that huge shadow has
been waived. There is a fatuousness that dogs this claim. First,
the phrase “interfering with the rest of production,” on which
the discharge is based, cannot be read in isolation from the
entire rule. In NLRB v. Mastro Plastics v. NLRB, 350 U.S. 270,
318–322 (1956), the Supreme Court explained that a labor
agreement, “[l]ike other contracts, must be read as a whole and
in the light of the law relating to it when made.”15 Rule N is a

14 Kingsbury does not argue, and I am not aware of any evidence
demonstrating that the parties intended this no-strike clause in the ex-
pired agreement to outlive the contract. Accordingly, the no-strike
clause in the expired contract does not “live on” to waive statutory
rights in the postexpiration period. Ironton Publications, 321 NLRB
1048 (1996).
15 In Mastro Plastics, supra, the Supreme Court found that a no-
strike clause stating that “there shall be no interference of any kind with
the operations of the Employers, or any interruptions or slackening of
no-strike clause, and it is directed toward prohibiting strikes,
work stoppages, and thus the restrictions on “interfering with
the rest of production” must be read in that context. It is far-
fetched, and there is no basis to suggest it comports with the
parties’ intent, to pluck the phrase “interfering with the rest of
production” from its context in a no-strike clause and contend it
constitutes a waiver of any conceivable conduct that impinges
on or delays any aspect of the plant’s operations in any way, for
any reason, for even a few minutes. A point the General Coun-
sel touches on, in a somewhat different argument, is apt: a cof-
fee break, a phone call, a conversation, can be said to “interfere
with production,” as could arriving at work 5 minutes late be-
cause of highway traffic. One would be hard pressed to argue,
and the Respondent disavows it, that those facets of industrial
life were intended to be covered by the rule prohibiting “inter-
fering with the rest of production.” But Kingsbury’s argument
could sweep such innocuous conduct with the ambit of the
rule’s prohibition.
The Respondent’s claim of waiver is even weaker when we
consider the particular (and peculiar) circumstances to which it
seeks to apply the rule in this case. It is not simply that the
“production” that it claims Landis “interfered with” took only a
few minutes, did not affect the plant’s overall production, or the
work of any other division employee. More importantly, the
“production” that it claims Landis “interfered with” was the
unauthorized movement of company property by an employee
from another facility that management did not know was in the
Philadelphia plant and who did not have permission to enter it.
Koltenback was absolutely clear in his testimony: Shields was
not authorized by management to perform the tasks which
Landis halted him from doing for a few minutes until manage-
ment came and backed Landis up. Given Koltenback’s enthu-
siastic endorsement of the Union’s view that Shields had no
business moving those pallets in the plant, one wonders if the
term “production” can reasonably be applied to the perform-
ance of tasks unauthorized, and unapproved by management.
If an outsider walked in off the street and began helping to load
pallets, and Landis (or another employee) approached and
asked him to stop while he went to alert management, would
that too, under Kingsbury’s sweeping view of this rule, consti-
tute interference with production? If that example seems far-
fetched, it was the very one mooted by Koltenback, who in his
testimony equated Shields to “any outside person” and opined
that “[i]f management knew that Eric [Shields] was in the proc-
ess of doing [the loading], it was our responsibility to stop him
or any outside person who is not part of the bargaining unit.”
(Emphasis added.)
Assumingly wrongly that the no-strike rule was contractually
binding, Kingsbury has not proven that the rule was intended to
apply to this kind of conduct. It has not proven that through
this rule the Union waived its right to enforce the terms and
conditions of employment by halting a nonbargaining unit
“outsider” from performing unauthorized bargaining unit work

production of work by any of its members,” and that prohibited “any
strike or work stoppage during the term of this agreement” did not
constitute a waiver of employees’ rights to engage in unfair labor prac-
tice strikes.
KINGSBURY, INC. 1207
long enough to bring the situation to management’s attention so
that management can manage the plant. A “clear and unmis-
takable” waiver of otherwise protected and concerted conduct
related to enforcing the conditions of employment has not been
shown.
The question remains, quite apart from the issue of waiver,
whether in carrying out this policing and enforcement of the
terms and conditions of employment, Landis acted in a manner
that would cause him to lose the protection of the Act. This
seems to me, the proper issue in this case. Putting aside claims
of waiver and “interfering with the rest of production,” the
question that matters is whether through his conduct, Landis
lost the protection of the Act. Tillford, supra at 69 (“Having
found that [employee] was engaged in protected concerted
activity, we turn to the question whether he in some manner
lost the protection of the Act.”).
In this case, the conduct which Kingsbury claims warrants
Landis’ discharge is that, as part of policing and enforcing the
terms and conditions of employment, Landis had Shields stop
moving pallets while Landis asked him what he was doing and
while Landis went and sought management’s assistance. There
is nothing else. This is not a case about a discharge for oppro-
brious conduct. Landis did not curse Shields. He did not
threaten Shields. He did not use or threaten physical force
against Shields. He did not deride him or mock him. He did
not force Shields to stop working. It is true that he was upset
and spoke sharply to Shields, but if that were grounds for losing
protection of the Act the Act would not cover very many people
involved in labor disputes.16 In any event, Landis’ demeanor
was not the basis on which Kingsbury claims to have dis-
charged Landis.
As referenced, above, “[w]hen an employee is discharged for
conduct that is part of the res gestae of protected concerted
activities, the pertinent question is whether the conduct is suffi-
ciently egregious to remove it from the protection of the Act.”
Stanford NY, LLC, supra; J. W. Microelectronics Corp., supra
(“It is well settled, however, that not every impropriety com-
mitted in the course of Section 7 activity deprives the offending
employee of the protection of the Act. A line must be drawn
between situations where employees exceed the bounds of law-
ful conduct in a moment of exuberance or in a manner not acti-
vated by improper motives and those flagrant cases in which
misconduct is violent or of such serious character as to render
the employees unfit for further service.”); Ogihara America
Corp., supra (“The Board has held that where ‘an employee is
discharged for conduct that is part of the res gestae of protected
activities, the relevant question is whether the conduct is so
egregious as to take it outside the protection of the Act, or of
such character as to render the employee unfit for service.’”)
(quoting, Guardian Industries Corp., supra). “The employee’s
right to engage in concerted activity permits some leeway for
impulsive behavior, which must be balanced against the em-

16 Consumer Power Co., 282 NLRB 130, 132 (1986) (“The protec-
tions Section 7 afford would be meaningless were we not to take into
account the realities of industrial life and the fact that disputes over
wages, hours, and working conditions are among the disputes most
likely to engender ill feelings and strong responses.”).
ployer’s right to maintain order and respect. Where the conduct
occurs in the course of protected activity, the protection is not
lost unless the impropriety is egregious.” Coors Container Co.,
supra (referring to profanity).
Because the incident arose in the context of Landis’ con-
certed and protected activity, I do not believe the Employer is
free to define Landis’ “interference” with Shields’ moving of
pallets as a dischargeable offense. The protection from retalia-
tion against employees engaged in protected activity under the
Act is more robust than that. This is not to say that Landis
should have gotten Shields to stop working while Landis went
to get management. I will assume this is misconduct. But there
was an impulsivity, a spontaneity, and a lack of serious (if any)
harm to Shields, the production process, or management’s au-
thority, in the incident. There is no evidence that other em-
ployees were affected by the incident. It is worth stressing too,
that while Landis managed to get Shields to stop working, there
is no evidence at all that he forced him to do so. If Shields had
told Landis to “jump in a lake” there is no basis to conclude
anything other than that Landis would have done what he did
anyway: run off to alert management. It all adds up to far less
than an egregious act of misconduct “of such serious character
as to render the employee[ ] unfit for further service.” Under
the circumstances, Landis’ spontaneous reaction to Shields’
performance of bargaining unit work, which resulted in a very
short cessation of unauthorized work, that was immediately
reported to management and then fixed by management, is not
the kind of egregious conduct that causes an employee other-
wise engaged in protected activity to lose the protection of the
Act.

The contention that Landis “interfered with production”
evokes—albeit, implicitly, Kingsbury never directly asserts it—
the specter that Landis acted in a way that arrogated to himself
management’s privilege to direct employees and production, or
that he seized, however, momentary, control of the production
process. Kingsbury does assert (R. Br. at 1) that “Landis took
matters into is own hands.” He did, in that he caused Shields to
stop; but he did so only for long enough to report the matter to
management. If he took “matters into his own hands” it was
only for as long (and it was not more than a few minutes) as
necessary to alert management so that management could take
the matter into its hands. I do not believe, particularly under
the circumstances, that Landis’ conduct can be characterized as
a seizure of power or cast as a fundamental challenge to the
norms of the labor-management relationship. He did not, for
instance, cause Shields to stop working and end the matter there
(as did the employee in Tillford, supra, who was reinstated by
the Board). Landis went directly to management so that man-
agement could handle the issue.
Thus, the question is whether the protections of the Act are
lost by an employee who spontaneously and impulsively inter-
venes to halt work that is unauthorized by management,
promptly reports it to management, and seeks to have manage-
ment intervene. That is what Landis did here, and frankly it
looks more like an endorsement of management’s authority and
control of the workplace, than a challenge to it. Management
immediately backed Landis up, and immediately assigned the
work to a bargaining unit employee and away from Shields.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1208
Kingsbury admits it did not and would not have authorized
Shields to move the pallets. Kingsbury admits it “it was our
responsibility to stop” Shields. Landis made it possible for
Kingsbury to carry out this responsibility. In that sense he
helped management take control of the plant, he did not take
control from them.17
To discharge Landis for his conduct is to discharge him for
conduct that was rooted in and part of his effort to alert man-
agement to a violation of the terms and conditions of employ-
ment, conduct that is squarely protected concerted activity un-
der the Act. If Landis carried out this protected activity in a
manner beyond accepted protocols, the error occurred without
force or threat of force, and without outrageous or manifestly
offensive conduct. Under the circumstances, Kingsbury’s dis-
charge of Landis, on grounds that he caused Shields to stop
moving pallets while Landis questioned him and then went to
get management, was a violation of Section 8(a)(1).18
Given my finding on the 8(a)(1) violation, I need not pass on
the General Counsel’s alternative dual-motivation theory that
Landis’ discharge violated Section 8(a)(3) of the Act. La-Z-
Boy Midwest, 340 NLRB 80 (2003). Shamrock Foods Co., 337
NLRB 915 (2002).
CONCLUSIONS OF LAW
1. The Respondent, Kingsbury, Inc. (Kingsbury), is an em-
ployer within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Charging Party, Kingsbury Shop Employees’ Asso-
ciation (the Union), is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Union is the recognized collective-bargaining repre-
sentative of a bargaining unit composed of the shop employees
employed by Kingsbury at its Philadelphia operation.
4. On or about January 16, 2009, Kingsbury violated Section
8(a)(1) and (5) of the Act by unilaterally contracting out pro-

17 I note that in assessing Landis’ conduct, we do not reach the ques-
tion of whether the protections of the Act would be lost by a union
president who, in premeditated fashion, roamed the plant policing the
terms and conditions of employment by ordering workers to stop pro-
duction, and assumed the role of manager or “approver” of any work
carried out in the plant. Hyperbole aside that is not what happened
here.
18 I note that in considering Landis’ conduct and his discharge, I have
assumed that as part of his protected conduct he engaged in misconduct
by causing Shields to stop working. However, this misconduct was not
egregious, flagrant, or otherwise sufficient to cause Landis to lose the
protections of the Act. In making this assumption, I have not reached
the question of whether Landis would have been engaged in protected
activity if, having learned that Shields was performing bargaining unit
work, and given that there was no no-strike clause in effect, Landis
caused a real, as opposed to this phantom interference with operations
by calling an immediate work stoppage by the Kingsbury workforce.
Indeed, I have not analyzed whether, under the circumstances of the
lack of a no-strike clause, Landis’ nonviolent, nonphysical entreaty to
Shields to halt work might not be misconduct at all. I note that if it
were not misconduct, then under a Burnup & Sims analysis Kingsbury
was mistaken in its belief that Landis had committed misconduct, and
any discipline would violate Sec. 8(a)(1) for that reason. Burnup &
Sims, 379 U.S. 21 (1964). Again, given my conclusions, I do not reach
the Burnup & Sims analysis.
duction of CH housings work typically performed by the bar-
gaining unit without providing the Union notice or an opportu-
nity to bargain over the contracting out decision.
5. Since late April or early May 2009, and continuing until
approximately mid-October 2009, Kingsbury violated Section
8(a)(1) and (5) of the Act by failing and refusing to provide the
Union with requested information relevant to the Union’s rep-
resentation of employees.
6. On or about September 18, 2009, Kingsbury violated Sec-
tion 8(a)(1) of the Act by discharging employee Steven Landis
for engaging in protected and concerted activity.
7. The unfair labor practices committed by Kingsbury affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
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 effectu-
ate the policies of the Act.
The Respondent shall make whole its employees for losses in
earnings and other benefits which they may have suffered as a
result of the Respondent’s unlawful unilateral contracting out
of the production of CH housings bargaining unit work on or
about January 16, 2009. All payments to employees are to be
computed in the manner set forth in Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest, as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
The Respondent, having unlawfully discharged employee
Steven Landis on September 18, 2009, must offer Landis rein-
statement to the position he occupied prior to his discharge, or
to an equivalent position, should his prior position not exist,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed. The Respondent shall make Landis
whole for any loss of earnings and other benefits, computed on
a quarterly basis from the date of his discharge to the date of a
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as prescribed in New Horizons for the Retarded, supra.
The Respondent shall remove from its files, including Landis’
personnel file, any reference to his discharge, and shall thereaf-
ter notify Landis in writing that this has been done and that the
discharge will not be used against him in any way.
The Respondent shall post an appropriate informational no-
tice, as described in the attached appendix. This notice shall be
posted in the Respondent’s facility or wherever the notices to
employees are regularly posted for 60 days without anything
covering it up or defacing its contents. When the notice is is-
sued to the Respondent, it shall sign it or otherwise notify Re-
gion 4 of the Board what action it will take with respect to this
decision. In the event that, during the pendency of these pro-
ceedings, 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 January 16, 2009.
KINGSBURY, INC. 1209
The Respondent shall, within 14 days of a request, or such ad-
ditional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended19
ORDER
The Respondent, Kingsbury, Inc., Philadelphia, Pennsylvania,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Union as the repre-
sentative of its employees in an appropriate bargaining unit by
unilaterally contracting out bargaining unit work without provid-
ing the Union notice and an opportunity to bargain.
(b) Failing and refusing to bargain with the Union as the repre-
sentative of its employees in an appropriate bargaining unit by
failing and refusing to provide information requested by the Un-
ion that is relevant and necessary to the Union’s representational
duties.
(c) Discharging any employee for engaging in protected and
concerted activity.
(d) In any like or related manner interfering with, restraining
or coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Make all affected employees whole, with interest, in the
manner set forth in the remedy section of this decision, for any
loss of earnings and other benefits suffered as a result of the Re-
spondent’s unilateral contracting out of the production of CH
housings work announced on or about January 16, 2009.
(b) Within 14 days from the date of this Order, offer Steven
Landis full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights and privileges previ-
ously enjoyed.

19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(c) Make employee Steven Landis whole with interest, in the
manner set forth in the remedy section of this Decision and Order
for any loss of earnings or other benefits resulting from his dis-
charge.
(d) Within 14 days from the date of this Order, remove from
its files, including Steven Landis’s personnel file, any reference
to his discharge, and within 3 days thereafter notify Steven
Landis in writing that this has been done and that the discharge
will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due
under the terms of this Order
(f)Within 14 days after service by the Region, post at its facil-
ity in Philadelphia, Pennsylvania, copies of the attached notice
marked “Appendix.”20 Copies of the notice, on forms provided
by the Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pend-
ency of these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at any time since January 16, 2009.
(g) Within 21 days after service by the Region file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply with the provisions of this
Order.

20 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”