Millard Processing Services

National Labor Relations Board - Board Decisions

Feb 11, 1993

310 N.L.R.B. 421 (N.L.R.B. 1993)

421
310 NLRB No. 55
MILLARD PROCESSING SERVICES
1 The Respondent’s exceptions merely assert that the Board erred
in certifying the Union, a matter that has been fully considered pre-
viously. See 304 NLRB 770 (1991), and 308 NLRB 929 (1992).
For the reasons stated in his dissent in the underlying representa-
tion case (304 NLRB 770), Member Raudabaugh believes that the
Union was not properly certified. Accordingly, he would dismiss the
8(a)(5) allegations.
1 All dates are in 1991, unless otherwise indicated.
2 Procopio denied telling Bruckner that Larry Larsen would close
the plant if the Union came in. However, he could not remember
having any conversation with Bruckner at the bar and grill, or of
even seeing her there at any time. On cross-examination, Procopio
seemed reluctant to admit that he had occasionally talked to Tonda
Bruckner at Millard’s plant. In contrast, Bruckner seemed to be giv-
ing her best recollection of a conversation she had with Procopio.
Continued
Millard Processing Services, Inc. and UFCW Local
No. 271, affiliated with United Food and Com-
mercial Workers International Union. Cases
17–CA–15133, 17–CA–15375, and 17–CA–15843
February 11, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On October 9, 1992, Administrative Law Judge
Leonard M. Wagman issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel 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 exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Millard Processing Serv-
ices, Inc., Omaha, Nebraska, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Constance N. Traylor, Esq., for the General Counsel.
Patrick J. Barrett, Esq. (McGrath, North, Mullin & Kratz,
P.C.), of Omaha, Nebraska, for the Respondent.
Thomas F. Dowd, Esq. (Thomas F. Dowd & Associates), of
Omaha, Nebraska, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. These
cases were tried in Omaha, Nebraska, on February 27 and
28, and April 8, 1992. On an amended charge filed in Case
17–CA–15133 on September 13, 1990, by the Union, UFCW
Local No. 271, affiliated with United Food and Commercial
Workers International Union, and a further charge in Case
17–CA–15375 on January 2, 1991,1 by the Union, the Re-
gional Director for Region 17 issued an order consolidating
cases, consolidated complaint and notice of hearing, on Sep-
tember 24, against Millard Processing Services, Inc. (Mil-
lard). Thereafter, on the Union’s further charges in Cases 17–
CA–15843 and 17–CA–15923, filed, respectively, on October
8 and November 27, an amended charge in Case 17–CA–
15843, filed on November 27, and the previous charges filed
in Cases 17–CA–15133 and 17–CA–5375, the Regional Di-
rector, on December 10, issued his order further consoli-
dating cases consolidated complaint and notice of hearing. At
the hearing, on February 27, 1992, on the Union’s motion,
I severed Case 17–CA–15923 to expedite resolution of the
issues regarding the Union’s certification which had been
raised in that case.
The consolidated complaint, to the extent pertinent to
Cases 17–CA–15133, 17–CA–15375, and 17–CA–15843, and
as amended at the hearing, alleged that Millard had violated
Section 8(a)(1) of the National Labor Relations Act (29
U.S.C. § 151 et seq.), by interrogating employees regarding
their union membership, activities, and sympathies, asking
employees to advise fellow employees to withhold support
from the Union, and threatening employees with the closing
of Millard’s plant if the employees selected the Union as
their collective-bargaining representative. The consolidated
complaint in these cases also alleged that Millard violated
Section 8(a)(5) and (1) of the Act by unilaterally changing
its employees’ wages, hours, and other terms and conditions
of employment. In its timely answer to the consolidated com-
plaint issued on December 10, Millard denied these allega-
tions.
On the entire record before me in this proceeding, includ-
ing the briefs filed by the General Counsel and Millard, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Millard, a corporation engaged in the processing and slic-
ing of bacon, has an office and place of business in Omaha,
Nebraska, where, in the course of its business, it annually
purchases and receives products, goods, and materials valued
in excess of $50,000 directly from points outside the State
of Nebraska. Millard admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Millard also admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
In May 1990, employee Tonda Bruckner encountered Su-
pervisor Scott Procopio, after work, at a bar and grill located
a few blocks from Millard’s plant. In the course of conversa-
tion with Bruckner, Supervisor Procopio asserted that if the
Union ‘‘came in,’’ Larry Larsen, Millard’s owner, would
close the plant.2 At the time of this incident, the subject of
422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Her sincere manner persuaded me that she was the more reliable wit-
ness. Accordingly, I have credited her account of Procopio’s re-
marks.
3 On direct examination, Supervisor Barber testified that he did not
know either Ybanez or Sanchez and that he could not recall any con-
versation he might have had with Ybanez. Further, on direct exam-
ination, Barber denied questioning Ybanez or Sanchez about their
thoughts regarding the Union. Barber also denied telling Ybanez to
advise other employees against joining the Union.
The certainty with which Barber had testified on direct examina-
tion contrasted with his inability on cross-examination to recall any
details of the several conversations he admitted having with employ-
ees regarding the Union, during the preelection period. Barber did
not provide any recollection of the content of any these conversa-
tions. When counsel pressed him for some details of his conversa-
tions, he seemed annoyed as he answered, ‘‘I don’t have actual
physical data on that, no.’’ My effort to extract some information
from him regarding these conversations also failed. Barber did not
exercise his recollection, except to admit that he had ‘‘several con-
versations with some employees out there.’’
In contrast with Barber, Ybanez seemed to be giving his best
recollection of his encounter with Supervisor Barber in mid-July
1990. As Ybanez impressed me as the more conscientious witness,
I have credited his testimony, and have rejected Barber’s denials.
4 Except as reflected in fn. 8 below, the essential facts regarding
the alleged unilateral changes are not in dispute.
union representation was a matter of importance among
Millard’s employees. Indeed, this conversation occurred only
a few weeks before the Board conducted a representation
election in Case 17–RC–10493, among Millard’s plant em-
ployees. I find that Procopio’s message amounted to a threat
of economic reprisal aimed at discouraging employees from
voting for the Union. I also find that by this threat, Millard
violated Section 8(a)(1) of the Act.
In mid-July 1990, in the breakroom at Millard’s plant, Su-
pervisor Jon Barber, in the presence of employee Joe
Sanchez, asked employee Alex Ybanez what he thought
about the union. Ybanez’ initial response was: ‘‘It has its ups
and downs.’’ He then told of how he had at one time de-
cided to join a union at another plant, but that the employer
closed it down. Supervisor Barber remarked: ‘‘See where the
union left you. You don’t need a union.’’ Barber continued:
‘‘You should talk to other people about not joining the union
for the simple reason that we have the same benefits.’’ Bar-
ber’s tone caused Ybanez to sense that he was being ordered
to go through the plant, urging employees against joining the
Union.3
Barber’s questioning of Ybanez’ union sentiment was not
accompanied by any assurance against reprisal if the answer
revealed a prounion attitude. Also, Barber followed up his
question by soliciting Ybanez to advise other employees to
reject the Union. By thus pressuring Ybanez to speak out
against the Union, Millard violated Section 8(a)(1) of the
Act. PYA/Monarch, Inc., 275 NLRB 1194, 1202 (1975). I
also find that in these circumstances, Barber’s interrogation
of Ybanez was coercive and therefore violated Section
8(a)(1) of the Act.
B. Unilateral Changes
1. The facts
a. Background
Millard admits, and I find, that the following unit of its
approximately 400 employees is appropriate for collective-
bargaining purposes within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time maintenance, pro-
duction, and sanitation employees employed by Millard,
at its facility located at 13076 Renfro Circle, Omaha,
Nebraska, but excluding all office clerical employees,
guards, foremen and supervisors as defined in the Act,
and all other employees.
On June 29, 1990, a majority of Millard’s employees, in
the unit described above, designated and selected the Union
as their representative for collective-bargaining purposes, in
a secret ballot election which the Board conducted in Case
17–RC–10493. Thereafter, Millard filed objections to the
election. On August 27, the Board certified the Union as the
exclusive representative of the employees in the unit de-
scribed above, for the purpose of collective bargaining with
Millard.
By its letter dated September 6, the Union requested that
Millard recognize, and bargain with, the Union as the exclu-
sive collective-bargaining representative of the unit described
above. In my decision in Millard Processing Services, in
Case 17–CA–15923 (July 21, 1992), I found that:
Millard has since about September 6, refused to bar-
gain collectively with the Union, as the exclusive rep-
resentative of the employees in the appropriate unit, and
that by such refusal, Millard has engaged in and is en-
gaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
b. The alleged changes4
Prior to July 28, 1990, Millard assigned its slicing depart-
ment employees to two Saturday shifts. The first shift
worked from 7 a.m. until 3:30 p.m. The second shift’s Satur-
day hours were, generally, from 4 p.m. until midnight. How-
ever, the second shift ended at various times, up to 1 a.m.
Millard’s curing department also worked in two shifts on
Saturdays prior to July 28, 1990. The curing employees’ first
shift started in the morning, at a variety of times. However,
7:30 a.m. predominated. On most Saturdays, before July 28,
1990, this shift ended at 4 p.m. In 1990, before July 28, the
second curing shift, for the most part, started at 4:30 p.m.
and ended at times varying from 9:30 p.m. to 1:30 a.m.
On July 28, 1990, and thereafter, Millard extended the first
shift on Saturdays, in both the slicing and curing depart-
ments, by 2 hours, from 7 a.m. to 5:30 p.m. Also, on and
after that date, Millard changed the second shift on Satur-
days, for both departments. The new hours were 5:30 p.m.
to 2 p.m. Millard made both changes without either noti-
fying, or bargaining with, the Union.
From 1988 until September 1990, Millard provided its bar-
gaining unit employees with an optional group health insur-
ance program administered by New York Life Insurance
Company. Approximately 35 to 40 percent of the unit em-
ployees participated in this program. Millard and the partici-
pating unit employees, each, paid 50 percent of the pre-
miums. The policy was renewable, annually, on October 1.
In August 1990, New York Life announced substantial in-
423MILLARD PROCESSING SERVICES
5 At the hearing before me, counsel for the General Counsel, inad-
vertently amended par. 7(b) of the consolidated complaint to allege,
inter alia, that ‘‘[o]n or about November 1, 1990,’’ Millard
‘‘changed from a life insurance plan administered by New York Life
Insurance Company to another life insurance plan.’’ However, the
exhibits received in evidence and the expert testimony of Millard’s
witness, Mark Hudak, showed beyond doubt that Standard Insurance
of Oregon, rather than New York Life Insurance Company, was the
life insurance plan carrier prior to the change in April.
6 Millard reduced the wages of the following defrosters, as shown:
Maurice Armstrong from $6.60 to $ 6.10/hr.
Leroy Thompson from $6.30 to $5.80/hr.
Angel Arreola from $6.00 to $5.75/hr.
Lawrence Hart from $6.00 to $5.50/hr.
Shawn Pierce from $6.00 to $5.75/hr.
Rayford Palmer from $6.55 to $6.05/hr.
Brian Hardy from $6.25 to $5.75/hr.
creases in the premium rates for Millard’s group health pro-
gram. Millard decided to change this program.
In mid-September 1990, without notifying or attempting to
bargain collectively with the Union, Millard, unilaterally, de-
cided to provide its bargaining unit employees with a self-
funded group health insurance program, which Blue Cross
and Blue Shield of Nebraska would administer. Millard and
the participating employees would each pay 50 percent of the
premiums. Although lower than those required under the pro-
posed New York Life rate schedule, the premiums required
under the Blue Cross-Blue Shield administered program were
somewhat higher than those paid under the previous New
York Life policy. The employees’ weekly health insurance
premium payroll deductions for a single person rose from
$8.01 to $10.33. For family coverage, the weekly premium
payroll deductions went from $24.85 to $28.41.
From October 1, 1990, up to and including October 31,
1990, Millard paid the increases for the employees. Com-
mencing November 1, 1990, the bargaining unit employees
paid the increased premiums.
On November 1, 1990, Millard adopted an option permit-
ting employees to pay their health insurance premiums out
of pretax dollars, thus lowering their reportable gross in-
come, and, in some instances, slightly increasing take-home
pay. Millard’s printed announcement of the new health insur-
ance program, which it issued to its employees, showed, for
example, that an employee receiving a specified amount of
wages per week, with single coverage, would take home an
additional 31 cents per week, while another employee, with
family coverage, would go home with 92 cents less per
week.
The Blue Cross-Blue Shield plan included a preferred pro-
vider organization (PPO) program, designed to reduce the
cost of providing health care. If an employee chose a physi-
cian or hospital on the Blue Cross-Blue Shield preferred pro-
vider list, the insurance plan would pay 85 percent of the co-
insurance amount after the employee paid the deductible. The
employee’s total out-of-pocket expenses for covered service
would be limited to $950 per person and $1900 per family
membership.
If an employee covered by the new health insurance pro-
gram chose a physician or hospital not on the PPO list, his
or her out-of-pocket expenses would increase. The program
would pay only 70 percent of the coinsurance amount after
the employee had paid the deductible. The employee’s total
out-of-pocket expenses would be lmited to $2450 per person
and $4900 per family.
The expired New York Life Insurance Company health in-
surance policy covering Millard’s bargaining unit employees
did not have a PPO plan. Coverage was not governed by the
choice of a specific physician or hospital. The New York
Life program limited out-of-pocket expenses to $1200 per
person and $2400 per family.
Later, in April, Millard, without notice to the Union, and
without seeking to bargain collectively with the Union,
changed the carrier for the life insurance policy which it was
providing for its bargaining unit employees. The former car-
rier was Standard Insurance of Oregon. The new carrier was
Phoenix Mutual Life Insurance Company. Both insurance
policies provided coverage amounting to three times the in-
sured employee’s annual salary. There was no change in the
terms or conditions of the coverage.5
In November 1990, Millard reassigned 11 bargaining unit
employees, who were classified as defrosters, to other work.
Millard transferred 9 of the 11, temporarily, to other duties
on November 12, 1990, and the remaining 2, respectively, on
November 8 and 14, 1990. Seven of these same employees
received lower wage rates in their new job assignments.6
Millard made these changes in response to the depletion of
its supply of frozen pork bellies, which it uses to produce
bacon. Millard reassigned the employees and reduced the
wage rates of seven of them, without any notice to the
Union, and without giving the Union any opportunity to bar-
gain collectively on behalf of the unit employees.
Since Millard began operations, on June 27, 1988, it has
experienced two temporary lapses in the flow of frozen pork
bellies to its plant. The first of the lapses involved an insuffi-
cient flow of frozen pork bellies to Millard in the fall of
1989. At that time, the shortage was not so severe as to
cause Millard to dispense with its defrosting activity com-
pletely. Millard retained sufficent numbers of defrost em-
ployees to process the fluctuating flow of frozen pork bellies.
As the flow diminished, Millard reduced the number of de-
frost employees in the work force. When the flow increased,
Millard recalled defrost employees as needed. Millard did not
change the defrost employees’ hourly wage rates during the
1989 shortage.
The second lapse occurred in November 1990. At that
time, Millard had virtually depleted its frozen pork bellies.
The record shows that in contrast with October 1989, when
there were 32 million pounds of frozen pork bellies available
to Millard, in October 1990, only 4.8 million pounds were
available. Millard processes 400,000 pounds of pork bellies
per day. In the face of this temporary depletion, Millard of-
fered in-plant transfers to the 11 defroster employees. The 11
accepted the temporary transfers and the wage rates applica-
ble to their new job classifications. Six to 8 weeks before
Millard transferred the defroster employees to other classi-
fications, it had made the decision to do so, after noting from
market reports that frozen pork belly inventories were dwin-
dling.
Rayford Palmer, who was a Millard employee from Sep-
tember 1989 until December 1990, was classified as a de-
froster for the duration of that period. However, Millard fre-
quently assigned him, temporarily, to slicing, curing, or to
the smoke house, but continued to pay him at the defroster
424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Millard argues in its brief that Rayford Palmer’s testimony was
‘‘patently incredible’’ (Millard’s Br. at 15, fn. 2.) However,
Millard’s brief did not substantiate this assertion. Palmer testified in
a frank and forthright manner, and seemed sincere in his efforts to
respond to questions. I also noted that his testimony that his hourly
wage remained the same when he was temporarily transferred from
his defroster work to other classifications was uncontradicted.
8 At the hearing, on April 8, 1992, Millard’s manager of human
resources, Harold Edrington, testified about Millard’s unsuccessful
efforts to encourage its slicing and curing employees to work on
Sundays. In support of his testimony, Millard offered into evidence
a notice to employees, dated November 1, 1989, announcing the
abandonment of the bonus and double time incentives for Sunday
work. I rejected the offer on the ground of relevance, as urged by
counsel for the General Counsel. However, counsel for the General
Counsel permitted Edrington to testify about these same incentives,
without objecting. As the proffered exhibit corroborated Edrington’s
testimony regarding the circumstances leading up the alleged unilat-
eral adoption, in June, of a 7-day work schedule, including Sunday,
I have decided to reverse my ruling. Therefore, I now receive the
notice in evidence as R. Exh. 26.
9 I based my findings of fact regarding Millard’s bus service on
the testimony of its Operations Manager William R. Woodward and
its Human Resources Manager Harold Edrington, and on pertinent
exhibits.
classification’s hourly rate, except on this occasion in No-
vember 1990.7
I also find from the testimony of Operations Manager
Woodward, that, depending on production needs, Millard, as
a matter of practice, both before and since the Board-con-
ducted election on June 29, 1990, has moved bargaining unit
employees, temporarily, from one classification of work to
another, at will. However, neither Woodward nor any other
witness testified that defroster employees, who were trans-
ferred temporarily to other work in 1989, suffered a wage
rate cut as a result of the transfer.
Millard’s personnel records, received in evidence, show
employees receiving long-term reclassifications accompanied
by wage increases, or no change in wages. There was no
showing of wage reductions. However, these records did not
reflect the temporary job changes disclosed in Palmer’s and
Woodward’s credited testimony.
In 1989, Millard undertook an incentive plan to encourage
employees to work on Sundays. At first, Millard offered a
bonus for Sunday work. After a short trial period, Millard
dropped the bonus and went to a double time payment for
Sunday work. On November 1, 1989, Millard abandoned the
double time incentive and went to the time-and-a-half rate
after 40 hours in any work week.8 Millard achieved its Sun-
day-work objective in early June, almost 1 year after the
Union had won the representation election at its plant.
On June 2, Millard posted notices to its plant employees,
announcing:
Starting 6.2.91 until further notice work will be
scheduled 7 days a week
See the days off schedule for your days off.
Millard immediately began scheduling 7-day workweeks.
Millard also required employees to work 6 consecutive days
and then take 2 days off. Employees on this new schedule
would have different days off each week, and would work
on Sundays, on a rotating basis. Millard did not give any no-
tice or warning of this new work schedule to the Union. Nor
did Millard offer to bargain with the Union about this
change.
On May 7, 1990, Millard began providing free bus service
for its second-shift employees, to and from work, on a 6-
week trial basis. Millard contracted with the Mayflower Bus
Company to establish a bus route between the plant, located
in southwest Omaha, and points in south Omaha, which in-
cluded an area due south of downtown Omaha. Mayflower
was to pick up the second-shift employees at specified pick-
up points and return them to those points at night, after the
second shift ended.
On the conclusion of the trial period, Millard and
Mayflower set up a southern route and a northern route to
serve the second-shift employees. The southern route oper-
ated between the plant and points in south Omaha. The
northern route operated between the plant and points in north
Omaha. Mayflower had authority to adjust the routes for the
convenience of the employees. The bus company could, and
did, routinely, change stop locations from one street to an-
other, or from one corner to another. Mayflower was free to
make such changes, as long as it kept Millard informed of
them. Millard’s primary concerns were punctuality and the
amount of time employees spent on the bus, enroute.
Mayflower changed the schedules and its stops for the em-
ployees’ convenience. From time to time, employees would
tell the bus drivers that they would be better served if the
bus stopped at the next corner. Millard received word of the
changes from Mayflower, and included such information in
the revised bus schedules, which it gave to new hires.
On September 18, Millard posted the following notice at
the plant:
BUS RIDERS NOTICE
The schedule for the M.P.S. bus will be changed effec-
tive Monday, September 23, 1991.
There will only be one bus, but it will cover most
of the same route that is now covered by two.
Attached to the notice was a new schedule, to be effective
on September 23. This new schedule reflected changes in
times, a single route, and a reduction in the number of stops.
Millard neglected to notify the Union of these changes, or
of the decision to make them. Nor did Millard offer to bar-
gain with the Union about them.9
I find from Operations Manager Woodward’s testimony
and Millard’s notice to employees, dated October 7, that
prior to that date, Millard did not require payment of any fee
when an employee requested replacement of a lost paycheck.
Such incidents had arisen with sufficient frequency as to
cause concern to Millard. In its notice, dated October 7, Mil-
lard announced that, effective that day, it would charge $15
for issuance of a replacement check, and would deduct that
amount from the new check. Millard did not give notice of
this policy change to the Union. Nor has Millard offered to
bargain collectively with the Union about it.
2. Analysis and conclusions
The General Counsel contends that Millard violated Sec-
tion 8(a)(5) and (1) of the Act, when it made each of the
changes recited above, without affording the Union notice of
425MILLARD PROCESSING SERVICES
10 Millard contends that the amendment of the complaint at the
hearing to include an allegation that its unilateral change of the in-
surance carrier for the employees’ life insurance was barred by the
6-month limitation period prescribed by Sec. 10(b) of the Act. I find,
however, that this allegation is closely related to the other allegations
of unilateral changes in the underlying charges, and thus was not
barred by Sec. 10(b) of the Act. Long Island Day Care Services, 303
NLRB 112 (1991).
the contemplated change, and an opportunity to bargain col-
lectively on behalf of the bargaining unit. Millard argues
that, assuming that the Board had properly certified the
Union as the collective-bargaining representative of its plant
employees, these changes were not substantial enough to en-
title the Union to bargain about them. Therefore, according
to Millard, its unilateral actions did not violate the Act. I find
merit in the General Counsel’s position.
Section 8(d) of the Act, which defines the duty to bargain
collectively imposed by Section 8(a)(5) of the Act, requires
an employer to ‘‘meet . . . and confer in good faith [with
his employees’ majority representative] with respect to
wages, hours and other terms and conditions of employ-
ment.’’ NLRB v. Katz, 369 U.S. 736, 742–743 (1962). Items
falling within the language of Section 8(d) are mandatory
subjects of bargaining. NLRB v. Borg-Warner Corp., 356
U.S. 342, 349 (1958). Accordingly, an employer is prohibited
from changing matters related to wages, hours, or terms and
conditions of employment without first affording the employ-
ees’ bargaining representative a reasonable and meaningful
opportunity to discuss the proposed alterations. NLRB v.
Katz, supra, 369 U.S. at 743.
Where, as here, a labor organization had won a majority
in a Board-held election, and the resolution of objections to
the election resulted in the union’s certification, the Board,
in Mike O’Connor Chevrolet, 209 NLRB 701, 703 (1974),
enf. denied on other grounds 512 F.2d 684 (8th Cir. 1975),
provided the following guidance regarding an employer’s
duty to comply with Section 8(d) of the Act in such cir-
cumstances:
[A]bsent compelling economic considerations for doing
so, an employer acts at its peril in making changes in
terms and conditions of employment during the period
that objections to an election are pending and the final
determination has not been made. And where the final
determination on the objections results in the certifi-
cation of a representative, the Board has held the em-
ployer to have violated Section 8(a)(5) and (1) for hav-
ing made such unilateral changes. Such changes have
the effect of bypassing, undercutting, and undermining
the union’s status as the statutory representative of the
employees in the event a certification is issued.
The Board has also held that ‘‘in order for a statutory bar-
gaining obligation to arise with respect to a particular change
unilaterally implemented by an employer, such change must
be a ‘material, substantial, and a significant’ one affecting
the terms and conditions of employment of bargaining unit
employees. [Citations omitted.]’’ Angelica Healthcare Serv-
ices Group, 284 NLRB 844, 853 (1987). I find that Millard
has made material, substantial, and significant changes in the
wages, hours, and conditions of employment, as alleged by
the General Counsel. Thus, I find that the changes in Satur-
day shift schedules, the changes in health and life insurance
carriers,10 the increases in health insurance premiums, the de-
creases in wage rates for the defrost employees in November
1990, the imposition of a 7-day work schedule, including
Sundays, and the requirement that employees work 6 con-
secutive days and then take 2 days off, the reduction in bus
transportation, and the imposition of a $15 fee for replace-
ment of lost checks satisfied the Board’s test.
I also find that Millard has failed to show that ‘‘compel-
ling economic considerations’’ required it to make any of
these changes without giving the Union notice and without
affording the Union an opportunity to bargain about each of
them. By failing to notify the Union and provide it with an
opportunity to bargain while its objections to the election
were pending, Millard acted at its peril. As the Board cer-
tified the Union on August 27, I find that by implementing
the changes recited above, without prior notice to the Union
and without affording the Union an opportunity to bargain,
Millard violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Millard Processing Services, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union, UFCW Local No. 271, affiliated with
United Food and Commercial Workers International Union,
is a labor organization within the meaning of Section 2(5) of
the Act.
3. By questioning employee Alex Ybanez regarding his
union sentiment, threatening employees with plant closure if
the Union succeeded in organizing its employees, and by so-
liciting employee Alex Ybanez to discourage employees
from supporting the Union, Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(1) of
the Act.
4. At all times since June 29, 1990, the Union has been,
and continues to be, the exclusive representative of Respond-
ent’s employees in the following bargaining unit found ap-
propriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time maintenance, pro-
duction, and sanitation employees employed by Re-
spondent, at its facility located at 13076 Renfro Circle,
Omaha, Nebraska, but excluding all office clerical em-
ployees, guards, foremen and supervisors as defined in
the Act, and all other employees.
5. By unilaterally changing the wages, hours, and other
terms and conditions of employment of its bargaining unit
employees by changing the Saturday shift schedules for both
first and second shift employees, changing from a group,
health insurance program provided and administered by New
York Life Insurance Company, to a plan funded by Respond-
ent and adminstered by Blue Cross-Blue Shield of Nebraska,
changing the amount of health insurance premiums paid by
the unit employees, changing the life insurance carrier for its
bargaining unit employees from Standard Insurance of Or-
egon to Phoenix Mutual Life Insurance Company, placing
the workweek for bargaining unit employees on a 7-day
basis, including Sunday, and requiring them to work 6 con-
426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
secutive days followed by 2 days off, reducing the bus serv-
ice provided to bargaining unit employees by eliminating one
of two routes, reducing the number of stops, and using one
bus instead of two, and by charging employees $15 for re-
placing lost paychecks, Respondent has violated Section
8(a)(5) and (1) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Having found that Re-
spondent unilaterally changed the Saturday shift schedules
for the first and second shifts, and that Respondent has uni-
laterally changed to a 7-day work schedule, requiring em-
ployees to work 6 consecutive days and take the next 2 days
off, I shall order that Respondent restore the Saturday shift,
the weekly work schedules, and the bargaining unit employ-
ees’ individual work schedules to the status quo ante by re-
voking the unilateral changes it made in those schedules, and
restoring the previous schedules. Having found that Respond-
ent unilaterally changed the carriers of its employees’ health
and life insurance, and that Respondent also increased the
health insurance premiums paid by its employees, I shall
order that Respondent, at the Union’s request, rescind those
changes, and reimburse those employees who were required
to pay increased premiums, deductible medical expenses or
other out-of-pocket expenses under those changes. Having
found that Respondent unilaterally reduced the wage rates of
defrost employees Armstrong, Thompson, Arreola, Hart,
Pierce, Palmer, and Hardy, I shall order Respondent to re-
store their respective wage rates to what they were prior to
these unilateral reductions and make them whole for any loss
of earnings suffered because of this unlawful conduct. Hav-
ing found that Respondent unilaterally changed its bus serv-
ice by reducing the routes from two to one, eliminating
stops, and decreasing the number of buses from two to one,
I shall order that Respondent restore the status quo ante by
revoking these changes and restoring the bus service by rein-
stating the two routes and their designated stops, and by
using two buses to perform this transportation service. Hav-
ing found that Respondent has unilaterally changed its policy
regarding the loss of paychecks by requiring bargaining unit
employees to pay to Respondent $15 to replace each lost
paycheck, I shall order that Respondent revoke this policy,
restore its former policy of replacing paychecks without
charge, and reimburse those employees who have paid the
unlawful fee. Backpay for lost earnings resulting from Re-
spondent’s unilateral changes shall be computed as described
in Ogle Protection Service, 183 NLRB 682, 683 (1970). In-
terest for backpay and reimbursements shall be computed as
described in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, Millard Processing Services, Inc.,
Omaha, Nebraska, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Telling employees that if they selected the Union,
UFCW Local No. 271, affiliated with United Food and Com-
mercial Workers International Union, or any other labor or-
ganization to represent them for purposes of collective bar-
gaining, Respondent would close its plant.
(b) Interrogating employees regarding their attitude toward
the Union or any other labor organization.
(c) Asking employees to advise other employees to reject
the Union or any other labor organization.
(d) Refusing to bargain in good faith with the Union as
the exclusive representative of its employees with respect to
rates of pay, wages, hours of employment, and other terms
and conditions of employment, in an appropriate unit con-
sisting of:
All full-time and regular part-time maintenance, pro-
duction, and sanitation employees employed by Millard,
at its facility located at 13076 Renfro Circle, Omaha,
Nebraska, but excluding all office clerical employees,
guards, foremen and supervisors as defined in the Act,
and all other employees.
(e) Making unilateral changes in the hours of employment,
the health insurance program, the life insurance program, the
wage rates, the work schedules, the policy of replacing lost
paychecks without charge, the bus transportation furnished
by the Respondent, or in other terms or conditions of em-
ployment covering bargaining unit employees, without prior
notice to or bargaining with the Union as the exclusive rep-
resentative of the bargaining unit described above.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Notify and give the Union an opportunity to bargain
about any changes in the unit employees’ terms and condi-
tions of employment, including the changes in the Saturday
hours of the first and second shifts, the change from a New
York Life Insurance Company group health policy to a self-
insured plan administered by Blue Cross-Blue Shield of Ne-
braska, the increase in the amounts of premiums for health
insurance paid by employees, the change in life insurance
coverage from Standard Insurance of Oregon to Phoenix Mu-
tual Life Insurance Company, the reduction in the wage rates
of defrost employees Maurice Armstrong, Leroy Thompson,
Angel Arreola, Lawrence Hart, Shawn Pierce, Rayford Palm-
er, and Brian Hardy, the imposition of a 7-day workweek for
the bargaining unit employees, including Sunday, the require-
ment that they work 6 consecutive days followed by 2 days
off, the reduction of the M.P.S. bus service provided to bar-
gaining unit employees by elimination of one of two routes,
reduction in the number of stops, and the use of one bus in-
stead of two, and the imposition of a $15 charge on employ-
ees for the replacement of a lost paycheck.
427MILLARD PROCESSING SERVICES
12 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(b) On the Union’s request, rescind the changes in Satur-
day shift hours for the first and second shifts, which were
effective on July 28, 1990.
(c) On the Union’s request, terminate the self-insured
health program administered by Blue Cross and Blue Shield
of Nebraska, reinstate the New York Life Insurance Com-
pany’s group health program, and rescind the increases in the
premiums paid by employees, which became effective on
October 1, 1990.
(d) Reimburse employees for the increases in premiums
which they were required to pay on and after November 1,
1990, as a result of the unilateral changes in the group health
insurance program, with interest.
(e) On the Union’s request, terminate the Phoenix Mutual
Life Insurance Company life insurance program and reinstate
the Standard Insurance of Oregon life insurance policy.
(f) Rescind the wage reductions imposed on defrost em-
ployees Maurice Armstrong, Leroy Thompson, Angel
Arreola, Lawrence Hart, Shawn Pierce, Rayford Palmer, and
Brian Hardy in November 1990, and make them whole for
any losses of earnings suffered as a result of these reduc-
tions, with interest, in the manner set forth in the remedy
section.
(g) On the Union’s request, revoke the 7-day work sched-
ule and the requirement that bargaining unit employees work
6 consecutive days, with 2 days off, and restore the work-
week and the work schedule, which were in effect on June
1.
(h) On the Union’s request, revoke the changes in the
M.P.S. bus service, which went into effect on September 23,
including the use of one bus instead of the two, the reduction
in routes from two to one, and the reduction in the number
of stops, and resume the bus service with two buses, and the
same routes and stops as were served prior to the revoked
changes.
(i) Rescind the policy announced on October 7, which re-
quires bargaining unit employees to pay $15 for replacement
of each lost paycheck, and reimburse bargaining unit em-
ployees for all such payments they may have made as a re-
sult of this unilateral change in policy, plus interest.
(j) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(k) Post at its facility in Omaha, Nebraska, copies of the
attached notice marked ‘‘Appendix.’’12 Copies of the notice,
on forms provided by the Regional Director for Region 17,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(l) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT tell our employees that if they select the
Union, UFCW Local No. 271, affiliated with United Food
and Commercial Workers International Union, or any other
labor organization to represent them for purposes of collec-
tive bargaining, that we will close our plant.
WE WILL NOT coercively interrogate our employees about
their attitude toward the Union or any other labor organiza-
tion.
WE WILL NOT ask our employees to advise other employ-
ees to reject the Union or any other labor organization.
WE WILL NOT refuse to bargain in good faith with the
Union as the exclusive representative of our employees with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, in an appropriate
unit consisting of:
All full-time and regular part-time maintenance, produc-
tion, and sanitation employees employed by Millard, at
its facility located at 13076 Renfro Circle, Omaha, Ne-
braska, but excluding all office clerical employees,
guards, foremen and supervisors as defined in the Act,
and all other employees.
WE WILL NOT make unilateral changes in the hours of em-
ployment, the health insurance program, the life insurance
program, the wage rates, the work schedules, the bus trans-
portation furnished by us, our policy regarding replacement
of lost paychecks, or in other terms or conditions of employ-
ment covering our bargaining unit employees, without prior
notice to or bargaining with the Union as the exclusive rep-
resentative of the bargaining unit described above.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL notify and give the Union an opportunity to bar-
gain about any changes in the unit employees’ terms and
conditions of employment, including the changes in the Sat-
urday hours of the first and second shifts, the change from
a New York Life Insurance Company group health policy to
428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a self-insured plan administered by Blue Cross-Blue Shield
of Nebraska, the increase in the amounts of premiums for
health insurance paid by employees, the change in life insur-
ance coverage from Standard Insurance of Oregon to Phoe-
nix Mutual Life Insurance Company, the reduction in the
wage rates of defrost employees Maurice Armstrong, Leroy
Thompson, Angel Arreola, Lawrence Hart, Shawn Pierce,
Rayford Palmer, and Brian Hardy, the imposition of a 7-day
workweek for the bargaining unit employees, including Sun-
day, the requirement that they work 6 consecutive days fol-
lowed by 2 days off, the reduction of the bus service pro-
vided to bargaining unit employees by elimination of one of
two routes, reduction in the number of stops, and the use of
one bus instead of two, and the imposition of a $15 charge
on bargaining unit employees requesting issuance of a check
to replace a lost paycheck.
WE WILL, on the Union’s request, rescind the changes in
Saturday shift hours for the first and second shifts, which
were effective on July 28, 1990.
WE WILL, on the Union’s request, terminate the self-in-
sured health program administered by Blue Cross and Blue
Shield of Nebraska, reinstate the New York Life Insurance
Company’s group health program, and rescind the increases
in the premiums paid by our bargaining unit employees,
which became effective on October 1, 1990.
WE WILL reimburse our bargaining unit employees for the
increases in premiums which they were required to pay on
and after November 1, 1990, as a result of the unilateral
changes in the group health insurance program, with interest.
WE WILL, on the Union’s request, terminate the Phoenix
Mutual Life Insurance Company life insurance program, for
our bargaining unit employees, and reinstate the Standard In-
surance of Oregon life insurance policy for them.
WE WILL rescind the wage reductions imposed on defrost
employees Maurice Armstrong, Leroy Thompson, Angel
Arreola, Lawrence Hart, Shawn Pierce, Rayford Palmer, and
Brian Hardy in November 1990, and make them whole for
any losses of earnings suffered as a result of these reduc-
tions, with interest.
WE WILL, on the Union’s request, revoke the 7-day work
schedule and the requirement that bargaining unit employees
work 6 consecutive days, with 2 days off, and restore the
workweek and the work schedule which were in effect on
June 1, 1991.
WE WILL, on the Union’s request, revoke the changes in
the M.P.S. bus service, which went into effect on September
23, 1991, including the use of one bus instead of the two,
the reduction in routes from two to one, and the reduction
in the number of stops, and resume the bus service with two
buses, and the same routes and stops as were served prior
to September 23, 1991.
WE WILL rescind the policy announced on October 7,
1991, which requires bargaining unit employees to pay $15
for the replacement of lost paychecks, and reimburse bar-
gaining unit employees for all such payments they may have
made as a result of this unilateral change in policy, plus in-
terest.
MILLARD PROCESSING SERVICES, INC.