Laminates Unlimited, Inc.

National Labor Relations Board - Board Decisions

Jan 19, 1989

292 N.L.R.B. 595 (N.L.R.B. 1989)

LAMINATES UNLIMITED
Laminates Unlimited , Incorporated and Baltimore
Regional Joint Board , Amalgamated Clothing
and Textile Workers Union , AFL-CIO Cases
5-CA-19183 and 5-CA-19280
January 19, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On August 24, 1988, Administrative Law Judge
Lowell Goerlich issued the attached decision The
Respondent filed exceptions and a supporting
brief 1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order
as modified 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent, Laminates Unlimited, Incorporated, Bal-
timore, Maryland, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified
1 Substitute the following for paragraph 2(a)
"(a) Offer Carolyn Granger immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed, and make
her whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
her, in the manner set forth in the remedy section
of the decision "
2 Insert the following as paragraph 2(b) and re
letter the remaining paragraphs
"(b) Remove from its files any reference to the
unlawful transfer and notify the employees in writ-
t The Respondent has requested oral argument The request is denied
as the record and briefs adequately present the issues and the positions of
the parties
2 The Respondent has excepted to some of the judge s credibility find
rags 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
3 We shall modify par 2(a) of the judge s recommended Order to con
form to the Board s traditional reinstatement language We shall also
modify the judge s recommended Order to include an expunction provi
sion
595
ing that this has been done and that the transfer
will not be used against her in any way "
3 Substitute the attached notice for that of the
administrative 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 the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT unlawfully discourage concerted
or union activities of our employees in Baltimore
Regional Joint Board, Amalgamated Clothing and
Textile Workers Union, AFL-CIO, or any other
labor organization, by unlawfully and discrimina
torily transferring our employees to more onerous
jobs because of their union affection or discrimi
nate against them in any manner regarding their
hire or tenure of employment, or any term or con-
dition of employment, in violation of Section
8(a)(3) and (1) of the National Labor Relations
Act
WE WILL NOT unlawfully interrogate employees
regarding to their union membership or affection
WE WILL NOT tell employees that we will fight
the Union all the way even if it means closing our
plant
WE WILL NOT unlawfully create the impression
we are watching our employees' union activities
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Carolyn Granger immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any
other rights or privileges previously enjoyed and
WE WILL make her whole for any loss of earnings
and other benefits resulting from her transfer
WE WILL notify her that we have removed from
our files any reference to her transfer and that the
transfer will not be used against her in any way
WE WILL supply the Union with the names and
addresses of our probationary employees
LAMINATES UNLIMITED, INCORPO
RATED
Marc A Stefan Esq and Eric M Fine Esq, for the
General Counsel
292 NLRB No 61
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Glenn P Hare Esq of Baltimore Maryland, for the Re
spondent
Bernard W Rubenstein Esq, of Lutherville Maryland,
for the Charging Party
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge The
charge in Case 5-CA-19183, filed by Baltimore Regional
Joint Board Amalgamated Clothing and Textile Workers
Union, AFL-CIO (the Union) on October 22, 1987 was
served on Laminates Unlimited Incorporated (the Re
spondent) on October 23, 1987 A complaint and notice
of hearing was issued on December 4, 1987 In the com
plaint it was alleged among other things, that the Re
spondent unlawfully withheld requested information
from the Union in violation of Section 8(a)(1) and (5) of
the National Labor Relations Act (the Act)
The charge in Case 5-CA-19280 filed by the Union on
December 3, 1987, was served on the Respondent on the
same date A complaint and notice of hearing was issued
on January 28, 1988 In the complaint among other
things it was charged that the Respondent had violated
Section 8(a)(1) of the Act by unlawfully interrogating
and threatening employees and Section 8(a)(3) of the Act
by discriminatorily transferring employee Carolyn
Granger from the cleaning department to the prep de
partment
An order consolidating the foregoing cases was en
tered on February 4, 1988
The Respondent filed timely answers denying that it
had engaged in the unfair labor practices alleged
The consolidated cases came on for hearing in Balti
more, Maryland on March 23 and 24 1988 All parties
were afforded a full opportunity to be heard, to call, ex
amine and cross examine witnesses to argue orally on
the record to submit proposed findings of fact and con
clusions and to file briefs All briefs have been carefully
considered
On the entire record in this case and from my observa
tion of the witnesses and their demeanor I make the fol
lowing i
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE BUSINESS OF THE RESPONDENT
At all times material the Respondent, a Maryland cor
poration with an office and place of business in Balti
more Maryland (the Respondents facility), has been en
gaged in the manufacture of laminated office furniture
i The facts found are based on the record as a whole and my observa
tion of the witnesses The credibility resolutions have been derived from
a review of the entire testimonial record and exhibits with due regard for
the logic of probability the demeanor of the witnesses and the teachings
of NLRB Y Walton Mfg Co 369 U S 404 408 (1962) Regarding those
witnesses testifying in contradiction of the findings their testimonies have
been discredited either as having been in conflict with the testimonies of
credible witnesses or because the testimonies were in and of themselves
incredible and unworthy of belief All testimony has been reviewed and
weighed in light of the entire record No testimony has been omitted
During the preceding 12 months, a representative
period the Respondent, in the course and conduct of its
business operations described above, sold and shipped
from its Baltimore, Maryland facility products goods,
and materials valued in excess of $50 000 directly to
points outside the State of Maryland
The Respondent is now and has been at all times ma
terial, an employer engaged in commerce within the
meaning of Section 2(2) (6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The Union is now and has been at all times material a
labor organization within the meaning of Section 2(5) of
the Act
III THE UNFAIR LABOR PRACTICES
A Case 5-CA-19280
The Facts
I consider Tablytha Deily to be an unusually truthful
witness As a witness she was forthright, honest candid,
and sincere Her demeanor reflected her as a truthful
person She exhibited no observable hostility or rancor
Deily had been employed as a supervisor of the cleaning
department at the time that the alleged discriminatee
Carolyn Granger was transferred from the cleaning de
partment to the prep department
Later Deily was let go According to James Richard
Echart, plant manager she was told that she was let go
because of a reorganization and a reduction in supervi
sory manpower
On the Saturday (November 14, 1987) after Granger
signed a union authorization card (November 12, 1987)
the Respondent imposed a rule tht required employees to
sign in and out when they attended the bathroom [t]hat
there was too many going into the bathroom spending
too much time
A petition was prepared against this rule and circulat
ed among the employees Granger was the first signer
The petition was going against us having to sign [in]
and out of the bathroom The petition was handed to
Deily by Patricia Page, secretary for the Union Deily
carried the petition to George E Kelly director of man
ufacturing, who opened the paper According to Kelly
he received the petition in mid November on a Saturday
Kelly reviewed the petition The petition had to do
with signatures that were protesting the bathroom
policy On the following morning Kelly gave the peti
tion to Iluminada Acosta Ythier director of human re
sources to log in as a grievance Ythier testified that
there were [a]pproximately 30, 32 names on the peti
tion According to Ythier the grievance was later with
drawn by Page However James Richard Eckhart plant
manager testified that the grievance was turned over to
him to settle in the second step I sat down with Pat
Page and settled the grievance
According to Deily the petition was discussed at the
supervisors meeting following her receipt of the petition
(around November 16 1987) James Crystal the Re
spondent s president attended this meeting In reference
LAMINATES UNLIMITED
to the petition Crystal said that he did not appreciate it
He did not think it was necessary As far as he was con
cerned petitions don t scare him And no matter what it
takes even if the-The petition and the union did not
scare him And no matter what it takes if it means shut
ting his doors or using every cent he has he would fight
it as far as he had to It was also mentioned that Caro
lyn [Granger] was a troublemaker She started the peti
tion Patricia Page was a troublemaker
As noted above Granger had signed a card and joined
the Union on November 12 1987 Fredrick Hartner
business agent for the Union, at their regular weekly
meeting gave the card to Ythier According to Ythier
the Granger card was received by her from Hartner on
November 20, 1987, whereupon she turned it in to pay
roll Ythier testified that she informed neither Kelly nor
Eckhart that Granger had signed a union card Out of a
bargaining unit of 70 employees 31 had signed union
checkoff cards
On November 20, 1987, the same day Ythier received
Granger s union card Kelly received a page to escort
Granger to Ythier s office Kelly walked with Granger
to Ythier s office, where Ythier told Delly that she was
not needed Delly left Normally Delly would have re
mained with the employee in Ythier s office
When Granger returned to her job she reported to
Delly the conversation that occurred during the meeting
As recalled by Delly it was as follows
She said, Lummi [Ythier] asked her what was her
reason for joining the union, because the LUI [the
Respondent] could do more for her than the union
would
that Mr Crystal did not like the union and
where did she think a lot of people in the union
would end up if Mr Crystal ever got the union out
of there
Granger testified that when she entered Ythier s office
Ythier waved Granger s union card and asked her why
she had joined the Union Granger responded that she
wanted to Granger testified further
She asked me then if I was having any trouble
with my job where I worked, maybe one of the
employees was having trouble with my supervisor
I told her no that I was very happy with my job
That I liked the cleaning department I had worked
a lot of factories but this one seemed okay
She was telling me that when I joined the union
they were taking my $14 00 and that-They were
taking my $1400 and then she said to me, Did
they tell you that you wouldn t get any insurance
for 180 days? I said, No She told me that the,
James Crystal, the owner would do anything for us
and her door was always open to us If we had any
trouble we could come into there She just did not
understand why I had joined the union But, it
wasn't her $1400 that was being thrown away She
then said that did I know that James Crystal was
597
against the union And that he was 100 percent
against the union and he would fight it all the way
Even if it meant closing the doors That they had
even helped people in there pay their bills and
things like that
She stated to me or I had stated to her after- I
said , why don t you just put the union out then if
they are so against it? And she said, Oh, the
union will go Then where do you think you will be
when the union does go out
She said that her job was to take and find out
why we joined the union If there was any problem
or anything and when she went back and told
James Crystal, the owner
Just that the owner was against the union And
he would go against it 100 percent and he would
close the doors if he had to And that most factories
did not want unions That the unions asked too
much from the owners and the owners could not
come up with it so where did that leave us, at the
unemployment line
Ythier denied that she had engaged in the above detailed
conversation with Granger Employee Reginald Newton,
however testified that he had a similar experience with
Ythier After Newton had signed a union card on August
28 1987 he was asked to visit Ythier Newton testified
When we went in the office, she was asking me-
She asked me why have I joined the Union She said
I ve been working there for a year and she don t
see why that I joined the Union because-Well, I
told her the only reason I joined the Union at the
time a guy named Gary Berkhart he was working
there, adn [sic] the supervisor that was giving me a
hard time So I told her I joined the Union to pro
tect myself because it seemed like they was trying
to hassel [sic ] me and she just stated that she don t
see why I joined the Union You know she said it
was up to me my own decision But she don't see
why I would want to give 14 hours away [a] month
joining the Union [Emphasis added ]
I discredit Ythier 2
As noted Granger worked as a cleaner in the Re
spondent s cleaning department Her job was basically to
clean desks for shipment after they had been assembled
She vacuumed the drawers waxed the desks touch[ed]
them up with magic marker in case the screw that holds
the door front on has gone in to [o] far , spray[ed] it with
nap and wipe[d] it down and if any scratches or chips
2 Had Newton not testified I would have still discredited Ythier for
her demeanor and attitude on the witness stand which were those of an
untruthful witness who was trying to accommodate her employer
Even if it is assumed that some of the details concerning Granger s
visit to Ythier were not accurate I am convinced that the conversation
occurred as related by Granger Moreover Ythier seemed naive and un
informed about labor relations matters thus it is plausible that she would
have made the remarks attributed to her by Granger
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were observed notified the supervisor or an inspector
Granger s job performance was good Delly character
ized her as a very good employee She was easy [to]
teach, she learned her job and did a very good job at
what she was doing Kelly rated Granger as an excel
lent employee
When Delly arrived at work on November 23 1987,
Kelly instructed her to take Granger to Joe Dietz de
partment (prep department) Delly escorted Granger to
Dietz, who informed her that it was a permanent
change, and that he had been asking for a cleaner for 3
months Delly returned to Kelly and asked him why he
had transferred Granger because it left her with only
one cleaner on the desk line (one employee had quit)
Kelly responded, It was necessary for the good of the
plant Delly observed, How could it be necessary
when it was leaving me short handed of people and I
could not get the furniture out for shipment
Neither Delly, Dietz nor Granger had been informed
of the transfer of Granger 3
At the time of Granger s transfer, according to Delly,
there was a back up in the cleaning department caus
ing Delly to ask for additional help
Regarding the transfer Kelly explained that it had
been concluded at some previous time that if defects
were identified prior to the cleaning stage the Respond
ent would have time to make corrections and adjust,
thereby enabling [it] to better meet [its] commitments
Thus it was resolved to do cleaning at the prep stage so
that product defects could be identified before the prod
ucts were assembled To obtain this objective a cleaner
was to be added to the prep department This objective
however, had not been implemented but hung fire while
Eckhart and Kelly discussed the contemplated change
over several months [F]inally [Kelly] lost [his] patience
and on November 16 he met with Eckhart Kelly said
[Y]ou ve got to stop we are going to do it now
Thereupon the two conferees examined the seniority list
and, as stated by Kelly it was obvious that one of the
best candidates was Carolyn Granger Kelly considered
Granger an excellent employee a super cleaner
and the best of the four cleaners in the department
whom he considered for transfer According to Kelly
one of the other cleaners Pat Page was leaving She
was the most experienced and Elwin Chariton was
able to reedge a job that Granger was unable to do At
the time there were four cleaners in the cleaning depart
ment and four cleaner inspectors It was left to Kelly
to contact Ythier to get replacements for the cleaning
department which was done probably the next morn
mg
According to Kelly, because of his and Eckhart s plant
absences 4 Delly was not informed of Granger s transfer
until the morning of November 23 1987, at which time
she was also told two people had been hired as replace
3 When asked why the parties involved Dietz Delly and Granger
were not informed of Granger s impending transfer Ythier stated it was
not her job Kelly was evasive and Eckhart said We didn t feel we
had-I didn t feel I had to and I was supposed to earlier and I did not
* Eckhart testified on this subject We didn t feel we had-I didn t
feel I had to and I was supposed to earlier and I did not
ments Kelly had not discussed Granger s qualifications
with Granger s supervisor nor had he reviewed her file
According to Ythier she was told by Kelly to obtain
two replacements for the cleaning department on No
vember 16 1987 She obtained Ivan Martinez There
was another gal to come in that did not show Martinez
went to work on November 23 1987 An application for
the position of Freda Muncy Cummings, date November
20 1987 was presented by the Respondent as that of the
second hiree According to Ythier, she was unsuccessful
in obtaining additional replacements
Granger was never asked whether she wanted to be
transferred to the prep department or whether she was
able to perform the work in the department 5 nor was
the prep department job ever put up for bid
The job to which Granger was transferred in the prep
department was somewhat similar to her job in the clean
ing department However unlike her cleaning depart
ment job, she cleaned parts of desks rather than the as
sembled desk and [m]ust be capable of constant lifting
of 65 pounds and more Granger gave these reasons the
prep cleaners job was more arduous She was required
to bend over pick up the parts and put them
down A lot of times she was unable to pick up the
parts because they were too wide and her hands could
not reach around them
Granger testified I pick it up [the part] from the
dirty pile I take and clean it and then it is laid right
down beside it on the roller And then I start a clean pile
up I just reverse it take the dirty clean it and then put
it on the clean pile You have to pick it up, clean one
side A lot of times there is two sides so you have to flip
it and turn it Although Granger was allowed help in
lifting nevertheless she was told by Supervisor Dietz
that her job requirements required her to lift 65
pounds or more
On the first day Granger worked in the prep depart
ment she slipped and fell I had bent down to clean a
part and when I went to clean it my foot slipped and I
fell I fell on my tail and hit my back on the floor
Granger told her supervisor Dietz that she had fallen
He said `Just don t lift the heavy parts 6
On the next day November 24 1987 Ythier appeared
at Granger s job station and said that Granger was ac
cusing her Granger told him that she thought she was
transferred because she had joined the union Ythier
replied she had nothing to do with that and that any
thing Granger said in that factory will get back to her
s Employee Anna Marie Dilliard who did cleaners work in the prep
department was given a lifting test before she was hired to determine
whether she was capable of performing the work Granger was given no
such test
e Regarding the incident Dietz wrote a memo dated November 24
1987 as follows
Ms Carolyn Granger approached me to tell me one she did not
think she was going to cut it back here (she meant she couldn t
handle the job) Also she told me that she s having back pains and
she thinks they re [the pains] from working in my department Well
I don t -underline don t twice- think soi -exclama
tion point- I told her I didn t want her to lift any heavy objects
and if she came across a heavy object she should either see me or
the Material Coordinator who I also informed not to allow her to do
any heavy lifting
LAMINATES UNLIMITED 599
one way or another Granger also quoted Ythier as
saying that it was her job to take and found [sic] out
what was wrong and why we joined the union And
then she would go back and tell the owner James Crys
tal Also around this time Dietz had moved his desk
from one end all the way over to the department the de
partment where [Granger] was at The desk was right
on top of Granger Additionally a camera was com
pletely turned around to focus on Granger and where
she was working According to Deily the cameras
were used to watch people and how they were working
and what they were doing Deily had observed a
camera turned on the union president
Granger again fell and hurt her back Granger missed
28 days of work because of this injury
On November 24, 1987, Granger had complained that
she could not do the job and wanted to go back to the
cleaning department Eckhart testified that he knew
shortly after Granger transferred she was unhappy with
her job Eckhart testified that he knew of no employee
who was kept on the job since the Union has been there
who has been involuntarily transferred into a job
that they made it very plain from day 1 they did not
want it According to Eckhart, Granger had been
having a great deal of difficulty doing the job since
she s been transferred which he atributed to a bad atti
tude
B The 8(a)(1) Violations
Conclusions and Reasons
The Respondent violated Section 8(a)(1) of the Act by
1 Ythier s questions accompanied by threats directed
to Granger on November 20 1987 about why she had
joined the Union'
2 Ythier s remarks addressed to Granger that James
Crystal, the Respondents president, was against the
Union and that he would fight it all the way even if it
meant closing the doors Cf Cartridge Actuated Devices
282 NLRB 426 (1986)
3 Ythier's threat of retaliation for union support ad
dressed to Granger on November 20 1987 Where do
you think you will be when the union does go out
4 Ythier s remark addressed to November 20 1987
that her job was to find out who joined the Union
5 Ythier s creation of an impression of surveillance
when on November 27 1987 she informed Granger that
anything Granger said in that factory would get back to
her one way or another
The foregoing activities interfered with restrained
and coerced employees in the exercise of the rights guar
anteed them by Section 7 of the Act and were in viola
tion of Section 8(a)(1) of the Act
to as a troublemaker at a staff meeting at which the pets
tion was considered Granger was transferred precipi
tantly to a more arduous and onerous job on the first
working day after her union affection had been revealed
to the Respondent and after she had been unlawfully in
terrogated and threatened by the Respondent
Thus the teachings of Wright Line"' come into play
and the Respondent has the burden of proving that
Granger would have been transferred even though she
had not been a union partisan
The Respondent asserts that Granger s union affection
was not a consideration and that her transfer was
planned before the Respondent could have known of her
union partisanship, thus, it would have occurred in any
event
If it were assumed arguendo that the Respondent had
intended to supply the prep department with a cleaner
prior to November 23, 1987 it does not necessarily
follow that Granger was that choice As revealed in the
credited record, the Respondent hired two employees to
commence work on November 23, 1987 Martinez ap
peared for work Cummings did not One of these must
have been a replacement for the cleaner who had quit in
the cleaning department, and the other may have been
either a cleaner for the prep department or the additional
employee Deily had requested for the cleaning depart
ment (Deily had complained about the lack of personnel
in the cleaning department indeed she questioned why
Granger had been taken away from her) Under this as
sumption Granger would have been an afterthought for
it seems unreasonable that the Respondent which had a
man available, Martinez would have placed a woman on
a lifting job without determining whether she could do
the work Moreover it does not seem plausible that the
Respondent would move an experienced employee to a
job where the employee had no experience and place an
inexperienced employee in the experienced employee s
job Thus it would appear that business considerations
did not necessarily dictate the Respondent's action in
transferring Granger even if it is assumed that the prep
job was to be filled on November 23, 1988 Moreover it
seems at odds with industrial realities that the Respond
ent would have transferred Granger from a short handed
department without discussing the effect of the transfer
on the efficiency of the department with its supervisor
especially when the prep departments need was not
urgent (The Respondent if its witnesses are to be be
lieved, had been dilly dallying over its decision to place
a cleaner in the prep department) Moreover, the Re
spondent's explanation for its precipitant action does not
withstand scrutiny 9
C The Transfer of Granger
These things support the General Counsel's prima
facie case The Respondent possessed antiunion animus
Granger signed a union card on November 11, 1987,
Granger's name appeared at the head of a petition pro
testing a new bathroom rule, and Granger was referred
7 See Rossmore House 269 NLRB 1176 1177 (1984)
251 NLRB 1083 (1980)
In NLRB v Griggs Equipment 307 F 2d 275 278 (5th Cir 1962) the
court said [T]he inference drawn by the Board of discriminatory mote
vation is sustained and is buttressed by the fact that the explanation [of
fered by the employer] of the layoffs failed to stand under scrutiny
Also in NLRB Y Dant 207 F 2d 165 167 (9th Cir 1953) the court said
It is well settled that the inferences drawn by the Board are strength
ened by the fact that the explanation of the discharge offered by the re
spondent fails to stand under scrutiny
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although the Respondent claims it selected Granger
for transfer because she was an excellent employee it
seems implausible that the Respondent would not have
chosen Martinez rather than Granger to work in the
prep department because the cleaning department was
having difficulty meeting production schedules and the
job in the prep department was not immediate and re
quired heavy lifting Thus, business consideration seems a
shallow excuse for Granger s transfer
Other factors are persuasive that Granger s transfer
was discriminatory The timing of the transfer shortly
after the Respondent learned of Granger s union affec
tion and shortly after she had been deemed a trouble
maker reveals an ulterior motive and a retaliatory objec
tive Ace Machine Co 249 NLRB 623, 631 (1980) 10
A camera was readjusted to focus on Granger
Prior to her transfer the Respondent did not talk to
Granger about the transfer explain to her the reasons for
the transfer, or inquire whether she would be able to do
the work Such behavior implies under the circum
stances of this case, a discriminatory motive Cf F WI L
Lundy Bros Restaurant 248 NLRB 415, 420 (1980) Ad
ditionally the Respondent failed to consult with Grang
er s supervisor or the supervisor in the prep department
to ascertain whether she would be able to perform the
new task or whether her transfer would jeopardize the
work in the cleaning department
The precipitant action of a high management official in
transferring a new union member to a more onerous job
a seemingly low level management matter acting with
out consultation with the supervisors involved may be
well explained as an attempt to punish an employee for
his/her union and concerted activities and demonstrate
to other employees what was forthcoming to them if
they followed the same tactics Such explained objective
is in conformity with and accommodated Crystal si i
desire to remove the Union from the plant
Finally I am not convinced and do not believe (de
meanor considered) that the Respondent considered
Grangers transfer to the prep department prior to its
learning that she had signed a union card
I find that the transfer of Granger on November 23
1987 was discriminatory and in violation of Section
8(a)(3) of the Act12 and was effected for the deliberate
purpose of discouraging union activity 13 Granger would
not have been transferred except for her union affection
10 Timing alone may suggest antiunion animus as a motivating factor
in the employers action NLRB v Rain Ware Inc 732 F 2d 1349 1359
(7th Cir 1984)
11 Although Crystal was the only person who could have testified
about his antiunion remarks free from pressure in relation to his job
tenure it is significant that he did not appear for testimony
12 Under § 8(a)(3) of the Act it is unlawful for an employer by dis
crimmation in terms of employment to discourage membership in any
labor organization which includes discouraging participation in concert
ed activities NLRB v Erie Resistor Corp 373 U S 221 233 (1963)
is When it is considered that 31 employees out of a unit of 70 had
signed checkoff cards Granger s alignment with the Union was not a
small event for an employer who was bent on removing the Union from
the plant It seems quite obvious that the Respondent did not intend to
allow the increase in union membership to be unrestrained
D Probationary Employee Issue
By letter dated October 7, 1987, the Union requested
a list of names and addresses of all bargaining unit em
ployees including probationary [employees] currently
working at LUI Because the Respondent has furnished
names and addresses other than those of the probationary
employees, the only issue that is before me is whether
the Respondent may withhold the names and addresses
of probationary employees on the Union s request
Article II, section 2 of the contract provides in part
The Company will furnish the Union with a list of all
new employees and in section 1 All new employees
who voluntarily join the Union shall maintain their mem
bership in the Union as a condition of continued employ
ment Under the contract probationary employees may
become members of the Union and become subject to the
checkoff before their probationary period has expired
Probationary employees under the contract are de
scribed as (see art 4)
Section 1 During his/her first ninety (90) days of
employment, a new employee shall be considered in
his/her probationary period During the probation
ary period the employee may be discharged or oth
erwise disciplined, with or without cause without
recourse to the grievance and arbitration provisions
of this Agreement
Section 2 Probationary employees shall have no
rights under this Agreement except as otherwise
provided Upon successful completion of his/her
probationary period the employee shall gain senior
ity status with his/her seniority counted retroac
tively to the date of his [sic] his/her hire
In article 7 the contract provides in case of a reduc
tion of the work force
Section 3 In all cases of reduction in the work
force lasting five (5) working days or longer the fol
lowing procedures shall be followed
(a) All probationary employees shall be laid off in
the respective departments where the layoff occurs
(b) Thereafter all probationary 'employees
throughout the plant shall be laid off provided there
are available employees with seniority who are fully
capable of doing the work of the probationary em
ployees to be displaced
Under article 13 of the contract the probationary em
ployee is entitled to jury duty pay and under article 15
call in pay Article 22 sets the starting rate for probation
ary employees at $4 25 Thus it is clear that the Union,
in negotiating terms and conditions of employment and
benefits for probationary employees, has acted as the
probationary employees bargaining agent
The Union asserts that it needs (testimony of Fredrick
Hartner business agent) the names and addresses of the
employees so [it] can communicate with the people
and keep them informed of what is available what the
union is all about so that they have the ability to
make a determination in joining the union or the
things that are available to them within the agreement
LAMINATES UNLIMITED
Although the probationary employees have no con
tractual rights to use the grievance procedure in the
event they are discharged or otherwise disciplined, they
do have certain rights inuring to them under the contract
that the Union has a statutory duty to protect More
over, because the probationary employees fall within the
appropriate unit , the Union has statutory duty to repre
sent them, too Additionally, the probationary employees
perform the same kind of work under the same supervi
Sion Thus, it is clear that if the Union is not furnished
the names and addresses of the probationary employees,
it will be unable to completely fulfill its statutory duties
In a recent case the United States Court of Appeals
for the Sixth Circuit said in NLRB v Postal Service, 841
F 2d 141 144 6th Cir 1988)
Generally an employers duty to bargain collec
tively established in § 8(a)(5) of the National Labor
Relations Act, obligates it to provide a labor union
with relevant information necessary for the proper
performance of the union s duties as the employees
bargaining representative Detroit Edison Co v
NLRB, 440 U S 301 99 S Ct 1123 1125, NLRB v
Acme Indus Co, 59 LED 2d 333 (1979), 385 U S
432 87 S Ct 565, 17 L Ed 2d 495 (1967) NLRB v
Truitt M f g C o 351 U S 149, 76 S Ct 753 100
L Ed 1027 (1956) The failure to provide such in
formation constitutes an unfair labor practice in vio
lation of § 8(a)(1) and (5) of the Act 29 US C
§ 158 (a)(1) (5)
On the same subject the Board has said in the recent
case of Hawkins Construction Co 285 NLRB 1313 1315
(1987)
In determining relevancy, it is sufficient that the
Union demonstrate that there is a probability that
the desired information is relevant and that it would
be of use to the Union in carrying out its statutory
duties and responsibilities NLRB v Acme Industrial
Co, supra at 437
As the Board stated in Georgetown Holiday Inn 235
NLRB 485 486 (1978)
[I]t is well settled that the names and addresses of
unit employees like wage data are presumptively
relevant to the Unions role as bargaining agent
either during contract negotiations or during the
term of an agreement Hence no showing of par
ticularized need was necessary
See also Hecla Mining Co 248 NLRB 1341 1343 (1980)
Accordingly I find that in refusing to provide the
Union with the names and addresses of the probationary
employees after the Union s October 7 1987 request the
Respondent violated Section 8(a)(5) of the Act
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com
merce within the meaning of Section 2(2), (6), and (7) of
the Act and it will effectuate the purposes of the Act for
jurisdiction to be exercised
601
2 The Union is a labor organization within the mean
ing of the Act
3 By interfering with, restraining , and coercing em
ployees in the exercise of the rights guaranteed them by
Section 7 of the Act the Respondent had engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act
4 By unlawfully and discriminatorily transferring
Carolyn Granger from the cleaning department to the
prep department on November 23 1987, the Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the Act
5 The following employees of the Respondent consti
tute a unit appropriate for the purposes of collective bar
gaining within the meaning of Section 9(b) of the Act
All full time and regular part time production and
maintenance employees, including truck drivers and
working leaders employed by Respondent at its
5500 E Lombard Street, Baltimore , Maryland loca
tion, but excluding all other employees, summer
help temporaries and casual labor working less than
twenty hours per week, office clericals, customer
service employees plant clericals guards, and
working supervisors as defined in the Act 14
6 At all times since May 7, 1985 the Union by virtue
of Section 9(a) of the Act, has been, and is the exclusive
representative of the unit for the purposes of collective
bargaining concerning rates of pay, wages hours of em
ployment, and other terms and conditions of employ
ment
7 By refusing to bargain collectively with the Union
by refusing to furnish the Union the names and addresses
of probationary employees as requested by the Union on
October 7 1987, the Respondent had engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act
8 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices it is recommended that
it cease and desist that it take certain affirmative action
designed to effectuate the policies of the Act It also
having been found that the Respondent unlawfully trans
ferred Carolyn Granger on November 23, 1987, from the
cleaning department to the prep department, it is recom
mended that the Respondent remedy such misconduct by
transferring Granger back to the cleaning department
with all rights and privileges restored if any were taken
away
The General Counsel points out that because of back
injuries sustained on the job to which she was unlawfully
transferred Granger was unable to work for approxi
mately 28 days Thus, the General Counsel asserts that
the loss of earnings that resulted from the 28 days during
14 Admitted by the Respondent
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which Granger was unable to work should be restored
to her because the loss of earnings was the direct result
of the unlawful action taken against her by the Respond-
ent, citing American Mfg. Co. of Texas, 167 NLRB 520,
522-523 (1967); Colorado Forge Corp., 285 NLRB 530
(1987); Greyhound Taxi Co., 274 NLRB 459 (1985); ITO
Corp. of Rhode Island, 266 NLRB 503, 506 ( 1983); Graves
Trucking, 246 NLRB 344 (1979). I agree . It is recom-
mended that Carolyn Granger be made whole for all loss
of wages she incurred during the period she was absent
as a direct result of the injuries she received while work-
ing on the cleaner 's job in the Respondent 's prep depart-
ment . Interest shall be paid in accordance with the
Board 's usual formula. t s
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed16
ORDER
The Respondent , Laminates Unlimited , Incorporated,
Baltimore , Maryland , its officers , agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discouraging union or concerted activities of its
employees in Balitmore Regional Joint Board , Amalga-
mated Clothing and Textile Workers Union , AFL-CIO,
or any other labor organization, by unlawfully and dis-
criminatorily transferring its employees to more onerous
jobs because of their union affection or discriminating
against them in any manner concerning their hire or
tenure of employment , or any term or condition of em-
15 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U.S.C. § 6621), shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
' S If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ployment, in violation of Section 8(a)(3) and (1) of the
Act.
(b) Unlawfully interrogating employees regarding their
union membership or affection.
(c) Telling employees that the Respondent would fight
the Union all the way even if it means closing the plant.
(d) Unlawfully creating an impression of surveillance
that the Respondent is observing the employees' union
activities.
(e) Failing and refusing to supply the Union with the
names and addresses of probationary employees.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Forthwith transfer Carolyn Granger to the Re-
spondent's cleaning department on the same cleaner's job
she filled on November 23, 1987, with the restoration of
all rights and privileges, and otherwise fully comply with
the make-whole remedy and all recommendations set
forth in the remedy.
(b) Supply the Union with both the names and ad-
dresses of all probationary employees.
(c) Post at facility in Baltimore, Maryland, copies of
the attached notice marked "Appendix."" Copies of the
notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."