Pimalco, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 9, 2003

28-CA-018462 (N.L.R.B. Sep. 9, 2003)

JD(SF)–60–03
Chandler, Arizona
UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

SAN FRANCISCO BRANCH OFFICE

DIVISION OF JUDGES

PIMALCO, INC.
and
UNITED STEELWORKERS OF AMERICA,
AFL-CIO, CLC
On Behalf of the General Counsel
Jerome E. Schmidt, Esq.
Phoenix, Arizona.
On Behalf of the Charging Party
Michael Keenan, Esq.
Ward, Keenan and Barrett, P.C.
Phoenix, Arizona.
On Behalf of Respondent
Gregg Tucek, Esq.
Sherman and Howard, L.L.C.
Phoenix, Arizona.
Case 28-CA-18462
DECISION
Statement of the Case
John J. McCarrick, Administrative Law Judge. This case was tried in Phoenix, Arizona
on June 16, 17 and 18, 2003, upon General Counsel’s Complaint that alleged Pimalco, Inc.,
(Respondent) violated Section 8(a)(1) and (5) of the Act by dealing directly with employees and
by eliminating the unit position of safety coordinator without notice to The United Steel Workers
of America, AFL-CIO, CLC (Union) and without affording the Union an opportunity to bargain
with respect to the effects of this Decision.1 Respondent timely denied any wrongdoing. On the
entire record, including my observation of the demeanor of the witnesses, and after considering
the briefs filed by the parties, I make the following:
1 At the hearing, Counsel for the General Counsel filed a Notice of Intent to Amend
Complaint. The Notice sought to amend the Complaint to allege 17 employees of Respondent
as supervisors and agents within the meaning of the Act in paragraph 4(b). I granted the Motion.
Payless Drug Stores, 313 NLRB 1220, 1220-1221 (1994); Pincus Elevator & Electric Co., 308
NLRB 684, 684-685 (1992); Sheet Metal Workers Local 91 (Schebler Co.), 294 NLRB 766, 774-
775 (1989). Respondent admitted that all employees but Harl Chamberlain and John Emory are
supervisors and agents within the meaning of the Act. Later in the hearing Counsel for the
General Counsel withdrew paragraphs 6(d), (e) and (g) of the Amended Complaint.
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Findings of Fact
I. Jurisdiction
Respondent, a Delaware corporation with an office and place of business in Chandler,
Arizona (Respondent’s facility), has been engaged in the manufacture and extrusion of
aerospace aluminum products. During the 12-month period ending January 23, 2003,
Respondent in conducting its business operations purchased and received at its facility goods
valued in excess of $50,000 directly from points located outside the State of Arizona.
Respondent admits and I find that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. The Issues
1. Did Respondent violate Section 8(a)(1) and (5) of the Act in August 2002 by dealing
directly with employees concerning Jesus Arredondo’s grievance?
2. Did Respondent violate Section 8(a)(1) and (5) of the Act in November 2002 by
dealing directly with employees to remedy grievances concerning the Thanksgiving
holiday schedule?
3. Did Respondent violate Section 8(a)(1) and (5) of the Act in November 2002 by
eliminating the Safety Coordinator position?
4. Did Respondent violate Section 8(a)(1) and (5) of the Act in January 2003 by dealing
directly with employees concerning the work schedule?
5. Did the Union waive its right to bargain over schedule changes and removal of the
Safety Coordinator position?
III. Alleged Unfair Labor Practices
A. The Facts
1. Introduction
Respondent produces aerospace aluminum products at its facility in Chandler, Arizona.
Respondent’s facility consists of four buildings: IBC, Aerospace, PSI and Drawn Tube Mill.
In 20022 William Pottgen (Pottgen) was Respondent’s Director of Human Resources, Arvid H.
“Butch” Sorenson (Sorenson) was Flow Path Manager in the Aerospace plant, Gary Dale (Dale)
was the plant superintendent in the Drawn Tube Mill, Roger Dvorak (Dvorak) was the supervisor
of the Aerospace press department and reported to Sorenson, Clarence “Zeke” Sutton (Sutton)
was group leader in the Aerospace finishing department and reported to Sorenson, and Crickett
Lee (Lee) was a supervisor in the Drawn Tube Mill and reported to Dale.
From 1997 to 1998, Manuel Armenta (Armenta) was the Union’s staff representative for
Sub-District II and from 1999 to the present was Sub-district Director for Sub-district II. From
2 All dates herein refer to 2002 unless otherwise noted.
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1999 to the present John Fisher (Fisher) was the Unit Chair3 for Union Local 3937 at
Respondent’s facility. In November 2002, Harry Lutes (Lutes) was Union steward in the
Aerospace department. In August 2002 Rudy Marrufo was the Union’s griever in the Drawn
Tube Mill.
Respondent and the Union have been parties to a collective-bargaining agreement since
April 1, 1998 effective through July 31, 2003. The Union is the exclusive collective-bargaining
representative of Respondent’s employees in the following appropriate unit:
All hourly production employees employed by the Respondent, but excluding all
clerical employees, professional employees, die repair and maintenance
employees and supervisors as defined in the Act.
2. The Jesus Arredondo Grievance
On about August 7, Jesus Arredondo (Arredondo), a general helper in Respondent’s
Drawn Tube Mill, asked his supervisor Lee if he could leave work two hours early on August 8 if
he worked two hours late on August 7.4 Lee said that was ok. However, later on August 7 Lee
changed his mind and told Arredondo he had not given sufficient notice. Lee told Arredondo if
he took the time off for the doctor’s appointment he would get a warning. Arredondo then had a
conversation with Mary Ramsey (Ramsey), a team leader for Respondent in the finishing
department and a former Union Unit Chair and Griever. Ramsey told Arredondo, “don’t worry. I
talked to Bill Pottgen, and everything’s fine.” Arredondo replied, “Thank you. I don’t need you,
but I talked to Rudy (Marrufo) already.” Ramsey said, ”not to talk to him, talk to me.”5 Later on
August 7, Arredondo complained to Union Griever Marrufo about the denial of leave for the
doctor’s appointment. On August 7, Marrufo spoke with Lee who told Marrufo that Dale said
Arredondo could not take the time off. Marrufo next spoke with Dale who advised Marrufo he
was just following policy. Marrufo said he would have to file a grievance. At about 1:30 p.m. on
August 7, Marrufo had a conversation with Ramsey. Ramsey told Marrufo that she could fix
Arredondo’s problem. She said she had talked to Pottgen and all Marrufo had to do was talk to
Pottgen and he would fix it. Marrufo replied that he was filing a grievance over the matter.
Ramsey said that on August 12, fellow employee Cathy Strong told her that Dale
changed the policy for taking time off for doctor’s appointments and that Arredondo was getting
written up for going to a doctor’s appointment. Ramsey then approached supervisor Lee who
told her that, “ . . .yes, that it had come down that Gary Dale was no longer going to allow us to
fill in our hours or make up our time.” Ramsey admitted talking to Pottgen next about the issue
of time off for doctor’s appointments. Ramsey asked Pottgen when the policy changed about
making our schedules up. Ramsey mentioned that Arredondo was going to be written up for an
attendance problem because of a doctor’s appointment. Pottgen replied he had no idea about
this. Ramsey said she had a doctor’s appointment and what was she to do. Pottgen said, “go
talk to Gary (Dale), and then if I had any more problem with it, to come back to him.” Ramsey
next spoke with Marrufo and said she had spoken with Pottgen. Ramsey suggested that Marufo
go to the first step of the grievance procedure regarding Arredondo and speak with Pottgen.
3 The Unit Chair was the chief officer for Union Local 3937 at Respondent’s facility.
4 Arredondo testified he had this conversation with Lee on August 6, 2002. It is clear from
the Union’s grievance and Arredondo’s time records that the conversation occurred on
August 7, 2002. General Counsel’s Exhibit 7 and Respondent’s Exhibit 7.
5 While Ramsey admitted having a conversation with Arredondo, she denied telling him not
to talk to Marrufo.
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Marrufo said, “I don’t need to talk to Bill Pottgen, I’ll go by the grievant’s (sic)”. On August 12,
after 1:30 p.m., Ramsey spoke to Arredondo and asked if he had worked out his problem.
Arredondo said Marrufo had worked it out for him. Ramsey said she had just been in Pottgen’s
office and they were still allowed to use forms to schedule time off for doctor’s appointments.
Ramsey said she had just spoken to Marrufo and he did not mention working out the problem.6
On August 8, Arredondo told Marrufo that Ramsey had approached him and said she
had taken care of the warning. Ramsey told Arredondo that Marrufo did not know how to do his
job and to talk to her not Marrufo. Marrufo told Arredondo he was filing the grievance today. On
August 8 Marrufo filed the grievance concerning Arredondo’s leave with Dale. The grievance
form reflects that Dale agreed to remove the warning from Arredondo’s file on August 9.7
Arredondo’s time records reflect that he worked two hours late on August 7 and left two hours
early on August 8. He did not work on August 9, 10 or 11. For the reasons set forth in the
Analysis section, it is unnecessary to resolve the credibility conflict in the testimony of
Arredondo, Marrufo and Ramsey.
3. The Thanksgiving Holiday Grievance
In mid November, employees in the Aerospace finishing department who worked the
4:00 p.m. to 2:30 a.m. shift were unhappy with the Thanksgiving schedule because it required
them to work to 2:30 a.m. on Thanksgiving Day. According to Lutes, a metal finisher/team
leader and Union steward in the finishing department on the 4:00 p.m. to 2:30 a.m. shift, on
November 18 from 4:00 p.m. to 4:20 p.m., supervisor “Zeke” Sutton conducted a meeting with
25 employees present. Various employees complained about the Thanksgiving schedule.
According to Lutes, Sutton told employees that Flow Path Manager Sorenson was not an evil
person and would listen to them. Sutton suggested that the employees elect someone to go talk
to Sorenson. The employees selected Lutes to speak with Sorenson about the Thanksgiving
schedule. Lutes testified that on November 19 at another meeting with the finishing department
employees, Sutton said that employee Marcus Sekayouma had spoken with Pottgen and that
the Thanksgiving schedule was going to be changed. Sutton testified that he was on vacation
the week before November 18. When he came to work on Monday, November 18 at about 3:30
Sorenson met Sutton and took him to the Drawn Tube Mill to interview for a job there. Harl
Chamberlain took Sutton’s place as supervisor in the Aerospace finishing department. Sutton
interviewed with Sorenson, Tom Ploughe, Dale and Keith Bimbo for two hours. Sutton was
given the job and he left work at 6:15 p.m. to sleep so he could begin work the next day on the
day shift. Sutton’s testimony is corroborated by his own time sheets8 and by Sorenson’s
testimony. No other employees were called to corroborate Lutes’ testimony. Sutton denied that
he encouraged employees to deal with Sorenson or that he said Sekayouma had resolved the
Thanksgiving schedule with Pottgen. I credit the testimony of both Sutton and Sorenson.
6 While Ramsey contends that these conversations occurred on August 12, the probabilities
suggest it occurred on August 7. Ramsey says Arredondo was not yet written up and that Lee
was still of the opinion that Dale would not allow employees to make up time for doctor’s
appointments. Ramsey claims that Marrufo had not yet filed the grievance. By August 9 the
matter had been resolved by Dale, Ramsey’s conversations had to occur no later than August 8.
7 General Counsel’s Exhibit 7.
8 Respondent’s Exhibit 3.
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4. The Elimination of the Safety Coordinator Position
In addition to his duties as duties as Union Unit Chair, Fisher was Respondent’s Safety
Coordinator for two years until December 19. The Safety Coordinator was a bargaining unit
position. Respondent eliminated the Safety Coordinator and created a new position called
Environmental Health and Safety Professional (EHS Professional). This position was salaried
and included many of the duties of the Safety Coordinator in addition to new duties.
Respondent contends that the parties agreed to eliminate the Safety Coordinator in a
Letter of Understanding dated April 1, 1998. The letter provides in pertinent part:
During the 1998 negotiations, the parties discussed and acknowledged that an
effective safety program may include the assignment of bargaining unit
employees to non-traditional roles in support of safety. If the Company chooses
to make such assignment, it shall have the sole right and responsibility to
determine the need, duration and selection of employees to fill this position. Pay
for such assignment shall be equal to the highest classification excluding team
leader in the plant to which the assignment is made.
It was further agreed that for those employees who are assigned as safety
coordinators at the time of ratification of this agreement, they will continue in that
role or maintain their pay for at least one year. Any coordinator thereafter
reduced as a result of an evaluation of their role, shall be placed in the highest
available classification for which they are qualified in their plant.
Pottgen was a member of Respondent’s negotiating team during the 1997-1998
bargaining with the Union. Pottgen contends that the above Letter of Understanding was
prepared after the Union admitted during bargaining that Respondent had the authority to
eliminate the Safety Coordinator position. Nile Evans (Evans), president of Respondent from
1995 to March 2000 was also a member of Respondent’s negotiating team. Evans admitted that
after the 1998 contract was signed, Respondent could eliminate a person holding the Safety
Coordinator job only, “if they were performing or not.” Armenta was a member of the Union’s
negotiating team with Respondent in 1997-1998. Armenta said that the purpose of the above
Letter of Understanding was to keep bargaining unit employees in the position of Safety
Coordinator and that there was no agreement between the parties to give Respondent sole
authority to eliminate the Safety Coordinator position. I credit Armenta’s testimony. If the
purpose of the Letter of Understanding was to give Respondent authority to eliminate the Safety
Coordinator job from the bargaining unit, it is surprising that a bargaining unit employee, Fisher,
was selected to fill this position in 2000.
5. The January 13, 2003 Schedule Change
Respondent’s Aerospace press department normally operated four days a week with ten
hour shifts, Monday through Thursday. In January 2003, Respondent had acquired new
business that required two presses to run five days a week. However, there was only enough
work on the remaining presses to operate three days. Respondent decided that it did not want
to operate the two presses using overtime on Friday but to have employees who would have
been idle rescheduled for Friday on a non-overtime basis.
9 Richard Hernandez also held the position of Safety Coordinator until his job was removed
from the bargaining unit on about December 30, 2002.
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Dvorak announced the schedule change for the Aerospace press department on
January 13, 2003. Dvorak told employees that they would have to take time off during the week
to work on Fridays. This change meant that some employees had to be off work Monday
through Thursday so they could work Friday. There is no dispute that this schedule change was
made without notice to the Union. Later, Pottgen told Fisher that Respondent had to make a
schedule change and Fisher agreed the changes should be voluntary. At about the same time
Skippergosh told Dvorak he had no objection to the schedule changes if they were voluntary.
While Dvorak testified Skippergosh agreed that it would be alright to force someone to change
schedules, it is clear that Dvorak was speculating and there was no agreement by Skippergosh
that Respondent could force employees to work on Friday. Respondent contends that the
parties’ collective-bargaining agreement, Article I, Section 3, gives Respondent the right to
make changes to the work schedule without bargaining with the Union. This portion of the
collective-bargaining agreement provides:
ARTICLE I. PURPOSE AND SCOPE
Section 3. Direction of Working Forces
Except as may be limited by the provisions of this Agreement, the
operation of the Company and the direction of the working forces, including the
right to hire, lay off, suspend, dismiss and discharge any employee for proper
and just cause, are vested exclusively with the Company. In exercising this right,
the Company will not violate the Agreement.10
B. The Analysis
1. The Jesus Arredondo Grievance
It is well settled that an employer who by passes the collective-bargaining representative
and deals directly with employees to resolve grievances violates the Act. American Postal
Workers Union, 281 NLRB 1015 (1986); Postal Service, 268 NLRB 876, 877-878 (1984).
General Counsel’s allegation that Respondent dealt directly with employees to resolve
Arredondo’s grievance rests upon a finding that Ramsey was acting as an agent of Respondent
since there is no evidence that Pottgen dealt directly with Arredondo. The Board applies
common law principles of agency in determining whether an employee is acting with apparent
authority on behalf of the employer when that employee makes a particular statement or takes a
particular action. Cooper Industries, 328 NLRB 145 (1999). Apparent authority results from a
manifestation by the principal to a third party that creates a reasonable belief that the principal
has authorized the alleged agent to perform the acts in question. Southern Bag Corp., 315
NLRB 725 (1994). The Board’s test for determining agency is whether, under all the
circumstances, employees would reasonably believe that the employee in question was
reflecting company policy and speaking and acting for management. Waterbed World, 286
NLRB 425, 426-427 (1987). An employee’s statement may be attributed to the employer if the
employee is held out as a conduit for transmitting information from the employer to other
employees. D & F Industries, Inc., 339 NLRB No. 73, slip op. at 1 (2003).
10 General Counsel’s Exhibit 4.
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The record is devoid of any evidence that Respondent authorized Ramsey to act as its
agent or held her out as a conduit to resolve grievances on its behalf. There is no evidence that
Ramsey’s duties as team leader would have created a reasonable belief that she was acting on
respondent’s behalf. Ramsey’s position as liaison for the Tribal Employment Relations Office of
the Gila River Indian Community was not a position created by Respondent but by an
independent entity. While Ramsey attended grievance hearings as liaison, this activity is not
reflective of authority to deal with grievances on behalf of Respondent. Ramsey’s frequent
meetings with Pottgen at work, by themselves, do not establish agency since there is no
evidence that Pottgen ever authorized or suggested that Ramsey had authority to speak on
Respondent’s behalf. Moreover, the meetings alone would not create a reasonable belief that
Ramsey was speaking and acting for management. I find that Ramsey was not an agent of
Respondent.
Having found no evidence to support General Counsel’s allegation that Respondent
dealt directly with employees in resolving Arredondo’s grievance, I will dismiss that portion of
the Complaint.
2. The Thanksgiving Holiday Grievance
As noted above, an employer who bypasses the collective-bargaining representative and
deals directly with employees to resolve grievances violates the Act. American Postal Workers
Union, 281 NLRB 1015 (1986); Postal Service, 268 NLRB 876, 877-878 (1984). However,
having credited the testimony of both Sutton and Sorenson that Sutton could not have been
present on November 18 or 19 to make the statements attributed to him by Lutes, i.e. that
Pottgen had resolved the Thanksgiving schedule grievance with employee Sekayouma, I find
there is no evidence to support General Counsel’s allegation that Respondent dealt directly with
employees to remedy the Thanksgiving schedule. I will dismiss that portion of the Complaint.
3. The Elimination of the Safety Coordinator Position
There is no dispute that Respondent removed the position of Safety Coordinator and its
duties from the bargaining unit and created the new position of EHS Professional that
subsumed the work of the Safety Coordinator. Respondent contends that the Union waived its
right to bargain over the elimination of the Safety Coordinator from the bargaining unit in the
April 1, 1998 Memorandum of Understanding to the collective-bargaining agreement.11
In Taos Health System, 319 NLRB 1361, 1364 (1995), the Board affirmed the
Administrative Law Judge’s finding that the employer violated Section 8(a)(1) and (5) of the Act
when it unilaterally transferred bargaining unit work to newly created supervisory jobs. The ALJ
concluded:
During the term of a collective-bargaining agreement, an employer violates
Section 8(a)(5) by modifying an explicit or implicit term of the agreement without
the union signatory's consent or the union's "clear and unmistakable" waiver of
its statutory right to bargain concerning the matter at issue. Metropolitan Edison
Co. v. NLRB, 460 U.S. 693 (1983); and Bonnell/Tredgar Industries, 313 NLRB
789 (1994), enfd. 46 F.3d. 339 (4th Cir. 1995).
A similar conclusion was reached in Hampton House, 317 NLRB 1005, 1005 (1995).
11 General Counsel’s Exhibit 4 at page 75.
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Respondent’s reliance upon the April 1, 1998 Memorandum of Understanding to
establish the Union waived its right to bargain over the decision or effects of the decision to
remove the Safety Coordinator job from the bargaining unit is misplaced. No reasonable reading
of that letter establishes that the Union clearly and unmistakably waived its right to bargain over
the elimination of the Safety Coordinator position. The first paragraph of the letter deals only
with the right of Respondent to assign bargaining unit employees to the Safety Coordinator job.
No mention is made of eliminating the job. Moreover the second paragraph of the
Memorandum contemplates the ongoing role of bargaining unit employees in the Safety
Coordinator job during the term of the collective-bargaining agreement. The second paragraph
provides only that the individual holding the Safety Coordinator job will be placed into another
bargaining unit position upon evaluation of their role. There is no express waiver here of the
Union’s right to bargain over the decision or effects of removal of the Safety Coordinator
position from the bargaining unit.12 I find that by unilaterally removing the Safety Coordinator
job from the bargaining unit, Respondent violated Section 8(a)(1) and (5) of the Act.
Metropolitan Edison Co. v. NLRB, 460 U.S. (1983); Dorsey Trailers, Inc., 327 NLRB 835 (1999);
Georgia Power Co., 325 NLRB 420 (1998); Edgar Benjamin Healthcare Center, 322 NLRB 750
(1996).
4. The January 13, 2003, Schedule Change
General Counsel contends that Dvorak’s announcement that employees in the press
department would have to take days off during the week in order to work on Fridays was direct
dealing that violates Section 8(a)(1) and (5) of the Act. Respondent argues that the evidence
does not support the allegation at paragraph 6(f) of the Complaint and that the Union waived
any right to bargain about schedule changes.
I will deal first with Respondent’s procedural argument that paragraph 6(f) of the
Complaint should be dismissed because the Complaint allegations are not supported by the
evidence. “The propriety of a pleading is today judged by its effectiveness as a mechanism for
giving an adverse party notice of the claim upon which relief is sought.” Curtiss-Wright Corp. v.
NLRB, 347 F. 2d 61, 72 (3d Cir. 1965). “All that is requisite in a valid complaint before the
Board is that there be a plain statement of the things claimed to constitute an unfair labor
practice that the respondent may be put upon his defense.” American Newspaper Publishers
Assn. v. NLRB, 193 F. 2d 782, 800 (7th Cir. 1951), affd. 345 U.S. 100 (1953). Moreover, an
unpled but fully litigated matter may support an unfair labor practice finding despite a lack of an
allegation in the complaint. Hi Tech Cable Corp., 318 NLRB 280, (1995). The Complaint at
paragraph 6(f) provides:
On or about January 13, 2003, the respondent, by Roger Devore,13 at the
Respondent’s facility, dealt directly with employees regarding voluntary use of
vacation days, personal time off, and unpaid time off as a means to avoid layoff
of its employees.
12 While I have found that there is no ambiguity in the Memorandum of Understanding dated
April 1, 1998, the testimony of witnesses who participated in the negotiations that led to the
April 1, 1998 Memorandum of Understanding was conflicting and did nothing to shed light on
the parties’ intent. Niles testified that after the 1998 collective-bargaining agreement was signed
the Safety Coordinator could be eliminated only if they were not performing their job.
13 The record reflects that the correct name of this person is Roger Dvorak.
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The evidence adduced at the hearing dealt with Dvorak’s announcement of a schedule
change and the need for employees to take days off during the week so they could work on
Fridays. The issue of Respondent’s direct dealing with employees concerning the schedule
change and need to take days off was fully litigated at the hearing. I find that the Complaint
allegation is supported by evidence concerning direct dealing and the need to take time off due
to a schedule change. The complaint allegation put Respondent on notice that the direct
dealing on January 13, 2003, concerning the schedule change and the need to take time off
constituted an unfair labor practice. Curtiss-Wright Corp. v. NLRB, supra. Moreover, the issue
of direct dealing concerning the schedule change was fully litigated even in the absence of a
sufficient complaint allegation. Hi Tech Cable Corp., supra.
With respect to the direct dealing allegation concerning the schedule change, the Board
has held that an employer’s direct discussion with employees about new work schedules
without union approval is direct dealing in violation of Section 8(a)(1) and (5) of the Act.
Flambeau Airmold Corp., 334 NLRB No. 16 (2001); Harris-Teeter Super Markets, Inc., 310
NLRB 216, 217 (1993); Harris-Teeter Super Markets, Inc., 293 NLRB 743, 744-745 (1989).
Nevertheless, a union may waive its right to bargain about mandatory subjects. Waivers
can occur in any of three ways: by express provision in the collective-bargaining agreement, by
the conduct of the parties (including past practice, bargaining history and action or inaction), or
by a combination of the two. United Technologies Corp., 274 NLRB 504, 507 (1985). In the
instant case Respondent contends that there has been a waiver of the right to bargain over the
schedule change by the Union and hence no direct dealing in violation of Section 8(a)(1) and (5)
of the Act. Respondent argues there has been a waiver by the Union of the right to bargain
about schedule changes by express agreement of the parties in the 1998 collective-bargaining
agreement, by the agreement of Union representatives to the January 13, 2003, schedule
change and through the Union’s history of acquiescence to schedule changes.
Both the Board and the Courts have found that waivers of statutory rights are not to be
lightly inferred, but instead must be "clear and unmistakable." Metropolitan Edison Co. v.
NLRB, 460 U.S. 693, 708 (1983). When an employer contends that the provisions of a
collective-bargaining agreement show that a union has waived its right to bargain over an issue,
either the contract language relied on must be specific or the employer must establish that the
parties fully discussed the issue and that the union clearly and unmistakably waived its interest
in the matter. Trojan Yacht, 319 NLRB 741, 742 (1995); Angelus Block Co., 250 NLRB 868,
877 (1980).
The Board has consistently held that generally worded management rights clauses that
do not contain language dealing with the specific subject allegedly waived is insufficient to waive
a union’s statutory bargaining rights. Dorsey Trailers, Inc., 327 NLRB 835 (1999); Georgia
Power Co., 325 NLRB 420 (1998); Edgar Benjamin Healthcare Center, 322 NLRB 750 (1996).
Respondent relies on Article I, Section 3 of the 1998 collective-bargaining agreement
between the parties to establish the Union waived the right to bargain over scheduling
employees. The language of Section 3 provides:
Section 3. Direction of Working Forces
Except as may be limited by the provisions of this Agreement, the operation of
the Company and the direction of the working forces, including the right to hire,
lay off, suspend, dismiss and discharge any employee for proper and just cause,
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are vested exclusively with the Company. In exercising this right, the Company
will not violate the Agreement.
The contract provision in the instant case makes no mention of scheduling employees or
requiring employees to take days off. The Companies’ “direction of the working forces“
language is too broad and ambiguous to infer that the Union waived its right to bargain over
scheduling. Moreover, there is no bargaining history concerning this contract provision.14 The
evidence adduced at the hearing concerning past practice establishes only that Respondent has
notified the Union about schedule changes and the Union has acquiesced in the changes. It is
clear that past acquiescence to previous unilateral changes does not operate to waive a union’s
right to bargain over future changes. Owens-Brockway Plastic, 311 NLRB 519, 526 (1993).
Finally, Respondent contends that through both Fisher and Skippergosh, the Union
agreed to the schedule changes. Respondent’s reliance on any alleged agreements with Fisher
and Skippergosh came only after Dvorak announced the schedule changes. The direct dealing,
which is the subject of the unfair labor practice, had already occurred. I find that the Union did
not waive its right to bargain over scheduling changes by express agreement or past practice.
I find that Respondent’s announcement to employees that they would have to take a day
off during the workweek to work on their day off without notice to or approval by the Union,
constituted direct dealing with employees in violation of Section 8(a)(1) and (5) of the Act.
Conclusions of Law
By dealing directly with employees by telling them that they would have to take a day off
during the week to work on their day off and by unilaterally removing the Safety Coordinator
position from the bargaining unit without affording the Union an opportunity to bargain about the
decision or its effects, Respondent has engaged in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
Respondent has not otherwise violated Sections 8(a)(1) and (5) of the Act as alleged in
the Complaint.
Remedy
Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent must bargain with the Union as the exclusive representative of the
employees in the following appropriate unit concerning terms and conditions of employment
and, if an understanding is reached, embody the understanding in a signed agreement:
All hourly production employees employed by the Respondent, but excluding all
clerical employees, professional employees, die repair and maintenance
employees and supervisors as defined in the Act.
14 Respondent’s reliance on Union griever Lutes’ testimony that the collective-bargaining
agreement gave Respondent the unilateral right to make schedule changes is misplaced. As a
minor Union official with no evidence of expertise in bargaining history or contract interpretation,
Lutes testimony is of dubious value.
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Further having found that Respondent violated Section 8(a)(1) and (5) of the Act by
unilaterally removing the Safety Coordinator position from the bargaining unit, I shall
recommend that Respondent be ordered to reinstate Safety Coordinators John Fisher and
Richard Hernandez and make them whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of removal to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed 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 recommended:15
ORDER
The Respondent, Pimalco, Inc., its officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Failing to bargain in good faith with the Union as the exclusive representative of
out employees in the following appropriate unit:
All hourly production employees employed by the Respondent, but excluding all
clerical employees, professional employees, die repair and maintenance
employees and supervisors as defined in the Act.
(b) Bypassing the Union and dealing directly with bargaining unit employees
concerning wages, hours and other terms and conditions of employment.
(c) Removing bargaining unit positions without first giving the Union adequate notice
and a meaningful opportunity to bargain with us regarding the decision to remove the position
and the effects of removing the position.
(d) In any like or related manner interfere with, restrain or coerce employees in the
exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive representative of the
employees in the following appropriate unit concerning terms and conditions of employment
and, if an understanding is reached, embody the understanding in a signed agreement:
All hourly production employees employed by the Respondent at its Chandler,
Arizona facility, but excluding all clerical employees, professional employees, die
repair and maintenance employees and supervisors as defined in the Act.
15 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 purposes.
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(b) Within 14 days from the date of this Order, offer John Fisher and Richard
Hernandez full reinstatement to their former jobs as Safety Coordinator, without prejudice to
their seniority or any other rights or privileges previously enjoyed.
.
(c) Make John Fisher and Richard Hernandez whole for any loss of earnings and
other benefits suffered as a result of the removal of the Safety Coordinator job in the manner set
forth in the Remedy section of the Decision.
(d) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and papers, and all other records, including an electronic copy of such
records if stored in electronic form necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its facility in Chandler, Arizona
copies of the attached notice marked “Appendix.”16 Copies of the notice, on forms provided by
the Regional Director for Region 28, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since December 1, 2002.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, San Francisco, California, September 9, 2003.
_____________________
John J. McCarrick
Administrative Law Judge
16 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union,

Choose representatives to bargain with us on your behalf,

Act together with other employees for your benefit and protection,

Choose not to engage in any of these protected activities.

WE WILL NOT fail to bargain in good faith with the United Steelworkers of America,
AFL-CIO, CLC, (Union) as the exclusive representative of our employees in the following
appropriate bargaining unit:
All hourly production employees employed by us at our facility located in Chandler,
Arizona, but excluding all clerical employees, professional employees, die repair and
maintenance employees, and supervisors, as defined in the Act.
WE WILL NOT bypass the Union and deal directly with employees in the bargaining unit
concerning wages, hours and other terms and conditions of employment.
WE WILL NOT remove bargaining unit jobs without first giving the Union adequate
notice, and a meaningful opportunity to bargain with us regarding the decision to remove
the position and the effects of removing the position.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL bargain in good faith with the Union as your exclusive collective-bargaining
representative.
WE WILL Within 14 days from the date of this Order, offer John Fisher and Richard Hernandez
full reinstatement to their former jobs as Safety Coordinator, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
JD(SF)–60–03
Chandler, Arizona
WE WILL Make John Fisher and Richard Hernandez whole for any loss of earnings and other
benefits suffered as a result of the removal of the Safety Coordinator job in the manner set forth
in the Remedy section of the decision.
PIMALCO, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
2600 North Central Avenue, Suite 1800 Phoenix AZ, 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUSTNOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (602) 640-2146.