Plymouth Locomotive Works, Inc.

National Labor Relations Board - Board Decisions

May 30, 1982

261 N.L.R.B. 595 (N.L.R.B. 1982)

PLYMOUTH LOCOMOTIVE WORKS, INC.
Plymouth Locomotive Works, Inc. Plymouth Office
Workers Union. Cases 8-CA-13281 and 8-
CA-13621-1
May 30, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On August 28, 1981, Administrative Law Judge
Thomas E. Bracken issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions3 of the Administrative Law Judge, and
to adopt his recommended Order,4 as modified
herein.
'Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent also contends that the Administrative Law Judge's findings
and conclusions are the result of bias and prejudice. After a careful exam-
ination of the record, we find no merit in this contention.
The Administrative Law Judge found, at fn. 12 of his Decision, that
the parties had agreed to the bumping procedure contained in the shop
employees contract. The record, however, indicates that the parties had
agreed to the bumping procedure quoted in the second sentence of fn. 12,
which is different from, and less restrictive than, the shop employees
bumping procedure. This inadvertent error does not affect our decision
herein.
The passage quoted by the Administrative Law Judge in the second
paragraph of sec. II, F, of his Decision is from Chet Monez Ford, 241
NLRB 349, 350 (1979). The passage is itself a quotation from Guerdon
Industries; Inc., Armor Mobile Homes Division, 218 NLRB 658, 659 (1975),
which cites Celanese Corporation of America, 95 NLRB 664 (1951).
' We hereby amend the Administrative Law Judge's Conclusion of
Law 1, as follows, to conform more closely to the violation found:
"I. By unilaterally granting merit increases to its office and technical
employees during the period of January 1979 through April 1980,
and by unilaterally granting a 25-cent-per-hour wage increase on
April 20, 1980, when a majority of the employees in the appropriate
unit described below, at a Board-conducted election, had designated
the Union as their collective-bargaining representative, without af-
fording the Union the opportunity to bargain about such matters, the
Company has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(aX5) of the Act."
'We find that it will effectuate the purposes of the Act to require Re-
spondent to expunge from Howard's personnel record, or other files, any
references to his unlawful demotion or constructive discharge. We shall
modify the Administrative Law Judge's recommended Order according-
ly.
We have modified the Administrative Law Judge's recommended
Order to conform it to his recommended remedy and notice, with respect
to the extension of the certification year.
261 NLRB No. 87
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Plymouth Locomotive Works, Inc., Plymouth,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Upon request, bargain with the above-
named Union as the exclusive representative of the
employees in the unit described above, concerning
wages, hours, and other terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement.
The certification year shall extend I year from the
date that such new bargaining negotiations begin."
2. Insert the following as new paragraph 2(c)
and reletter the subsequent paragraphs accordingly:
"(c) Expunge from Ervin W. Howard's person-
nel records, or other files, any references to his de-
motion effective March 1, 1980, and his subsequent
constructive discharge."
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
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT make any changes in the
wages, hours, or other terms or conditions of
employment or eliminate positions of the em-
ployees in the aforesaid collective-bargaining
representative unit without first giving notice
595
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to their collective-bargaining representative
and affording such representative an opportu-
nity to engage in collective bargaining with re-
spect to any such proposed change.
WE WILL NOT threaten to withdraw any
wage increases or insurance benefits.
WE WILL NOT maintain any rule which pro-
hibits any employee from distributing literature
or soliciting on behalf of a labor organization
in nonworking areas during nonworking time.
WE WILL NOT demote, discharge, or other-
wise discriminate against any of you for sup-
porting Plymouth Office Workers Union, or
any other union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
the rights guaranteed you by Section 7 of the
Act.
WE WILL, upon request, bargain collectively
concerning rates of pay, wages, hours of em-
ployment, the elimination of jobs, and other
terms or conditions of employment with Plym-
outh Office Workers Union, as the exclusive
representative of all the employees in the ap-
propriate unit described below and, if an
agreement is reached, we will execute a writ-
ten contract incorporating the terms of the
agreement. The Union's certification year shall
extend I year from the date such new bargain-
ing negotiations begin. The appropriate unit is:
All office clerical employees and technical
employees employed at the Respondent's
Plymouth, Ohio facility, excluding all pro-
duction and maintenance employees, and
professional employees, guards and supervi-
sors as defined in the Act.
WE WILL offer Ervin W. Howard immedi-
ate and full reinstatement to his former job or,
if the job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or any other rights or privileges pre-
viously enjoyed, and WE WILL make him
whole for any loss of earnings and other bene-
fits resulting from his demotion, less any net
interim earnings, plus interest.
WE WILL expunge from Ervin W. Howard's
personnel records, or other files, any refer-
ences to his demotion of March 1, 1980, or his
subsequent constructive discharge.
WE WILL make Margaret Reeder whole for
any loss of earnings and other benefits result-
ing from her layoff, less any interim earnings,
plus interest.
PLYMOUTH LOCOMOTIVE WORKS,
INC.
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge:
These cases were heard at Norwalk, Ohio, on August
25-26, 1980.' The original charge was filed by the Union
on October 19, 1979, with a complaint being issued
thereon on November 23, 1979. A second charge was
filed on March 3, amended March 31, and the amended
consolidated complaint was issued on April 30, 1980.
Amendments to the complaint were also made at the
hearing. The consolidated complaint avers that Respond-
ent committed various acts violating Section 8(aXl), (3),
(4), and (5) of the Act. Respondent in its answers denied
that it committed any unfair labor practices. The case
presents the following issues:
(a) Whether Respondent unilaterally granted merit in-
creases to employees in the bargaining unit represented
by the Union during the period of April 30, 1979, to the
present without notice to, or bargaining with, the Union.
(b) Whether Respondent unilaterally, without notice to
or bargaining with the Union, granted to employees in
the bargaining unit represented by the Union a 25-cent-
per-hour wage increase on or about April 19, 1979.
(c) Whether Respondent unilaterally, without notice to
or bargaining with the Union, modified on October 1,
1979, its life insurance plan for employees in the bargain-
ing unit represented by the Union.
(d) Whether Respondent unilaterally, without notifica-
tion to or bargaining with the Union, adopted and made
available on November 1, 1979, a personal accident in-
surance plan for employees in the bargaining unit repre-
sented by the Union.
(e) Whether Respondent posted a notice on January
25, 1980, which threatened to withdraw insurance and
merit increases and to reclaim such increases already
paid unless increases and to reclaim such increases al-
ready paid unless the charge in Case 8-CA-13281 was
withdrawn.
(f) Whether Respondent maintained overly broad no-
distribution and no-solicitation rules.
(g) Whether Respondent unilaterally eliminated the ti-
mekeeper position without notice to, or bargaining with
the Union.
(h) Whether Respondent demoted Ervin Howard in
February 1980, and refused Howard the opportunity to
bump certain employees who had less seniority than
Howard and who held jobs for which Howard was
qualified.
(i) Whether Respondent told employees on February
29, 1980, that Margaret Reeder would not have been laid
off if the Union had not been organized.
() Whether Respondent withdrew recognition of the
Union as the exclusive bargaining representative of its
office and technical employees on or about July 23, 1980,
and refused to meet and negotiate with the Union there-
after.
I All dates are in 1980 unless otherwise indicated.
596
597PLYMOUTH LOCOMOTIVE WORKS, INC.
Upon the entire record' including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and the
Company, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, an Ohio corporation, is engaged in the
manufacture of industrial and material handling equip-
ment at its plant in Plymouth, Ohio, where it annually
ships goods valued in excess of $50,000 directly to points
located outside the State. The Company admits, and I
find, that it is an employer engaged in commerce and in
operations affecting 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 ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company, originally founded in 1888, manufac-
tures three lines of products: locomotives, lift trucks, and
ceramics. In 1937, the Plymouth Order of Mechanics
became the collective-bargaining representative of its
production and maintenence employees, who at the time
of the hearing consisted of approximately 149 employ-
ees. 3
In 1978, Ervin W. Howard commenced organizing the
office and technical employees of the Company.' On Oc-
tober 31, 1978, in an election conducted by the National
Labor Relations Board, a majority of the employees in
the unit selected the Union as their collective-bargaining
agent. On November 7 the Union was certified by the
Board as the exclusive collective-bargaining representa-
tive for this unit. 5
Howard was elected as the president of the Union and
has remained in that position. Following the Board certi-
fication, the Union and the Company commenced collec-
tive-bargaining negotiations. The Union was represented
by a negotiating committee, of which Howard was the
chief spokesman. Originally the chief negotiator for the
Company was J. W. Hickey, a labor consultant out of
Columbus, Ohio. Sometime after March 1979, Hickey
was replaced by Harvey B. Rector, a labor consultant
out of Akron, Ohio. Gregory E. Kibler, Respondent's
controller, who was also its director of industrial rela-
tions, remained as the Company's chief in-house negotia-
tor throughout the negotiations. The parties engaged in
' The General Counsel's unopposed motion to correct the transcript
dated September 11, is granted, and received into evidence as G.C. Exh.
'9.
' The record is silent as to the type of relationship that existed between
the shop union and the Company.
This fact was testified to by Howard, was uncontradicted, and is
credited. Most of the testimony of both the General Counsel's witnesses
and Respondent's witnesses was uncontradicted and is credited. where
there is a conflict in testimony I have resolved the credibility issue at that
point.
I The appropriate unit consists of "All office clerical employees and
technical employees employed at the Respondent's Plymouth, Ohio, fa-
cility, excluding all production and maintenance employees, guards and
supervisors as defined in the Act."
collective-bargaining negotiations for a period of over 21
months, with the last session having taken place on July
22. By letter dated July 23, Respondent notified the
Union that since the certification year had expired, it was
no longer required to bargain with the Union because
the Union no longer represented a majority of Respond-
ent's employees in the office clerical and technical em-
ployee bargaining unit.
B. Unilateral Changes in Wages and Insurance
1. Merit increases
During the period when the company and union repre-
sentatives were engaged in negotiations, on various occa-
sions the Company unilaterally granted what it termed
merit or upgrade increases to many employees. General
Counsel Exhibit 2 was a list of the 43 employees in the
bargaining unit and was prepared by Controller Kibler
for the Board. This list shows that, starting with in-
creases granted to three employees in January 1979, an
additional 23 employees received increases during the
balance of the year. In the first 4 months of 1980, 17 em-
ployees received such increases. Kibler testified that the
employees' supervisor had the discretion to determine
who should receive an increase, when it should be
awarded, and how much it should be. While Kibler had
the right to review these increases, he candidly admitted
that he would generally approve whatever increase was
recommended by the supervisor, so long as it fell within
the wage rate guidelines set for the employee's job classi-
fication. Kibler also admitted that the Company had not
notified the Union of any of these increases prior to their
being put into effect.
2. The 25-cent increases
It was stipulated that all employees of the Company,
in as well as out of the office and technical employees'
bargaining unit, received a 25-cent-an-hour increase in
their wages. Howard testified that on the payday closest
to April 19, 1979, he received a memorandum from the
Company that had been inserted in his pay envelope, in-
forming him that he was receiving a 25-cent-an-hour in-
crease commencing with that paycheck. Howard further
testified without contradiction that there had been no
notice or bargaining with the Union about an increase,
prior to the date he received the notice.
William S. Sturman had commenced employment with
the Respondent in November 1977 as its executive vice
president and general manager. Sturman testified that he
notified the employees of the 25-cent wage increase on
April 19, 1979, by means of a payroll stuffer. The stuffer
was a formal letter, dated April 19, 1979, from Sturman
to each employee, advising the employee of this increase,
and attributing it to the inflationary spiral. (See G.C.
Exh. 15.)
Subsequently Sturman testified that he notified the
chairman of the board of Respondent's parent company,
by a letter dated April 6, 1979, that he had "announced"
a general increase of 25 cents an hour effective April 2,
1979. When asked on cross-examination how he had an-
nounced this, he testified that he had called all of the de-
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partment heads into his office on April 6, and told them
to "dispense" that information to all the employees. He
admitted that he did not follow up on the department
heads to see if they announced this raise. Sturman testi-
fied that employees were paid every 2 weeks on a
Friday, for the 2 weeks prior to a I week time lag. This
meant that the Friday, April 20, pay envelope would
have contained his April 19 letter of announcement, and
that the paycheck was for work done from April 2
through April 13, 1979.
3. Life insurance
During the period that Respondent was bargaining
with the Union, Respondent unilaterally increased the
coverage limit of the life insurance that it provided for
all of its employees. On October 1, 1979, the Company
raised this coverage from $10,000 to $12,000. Kibler ad-
mitted that the Company notified the Union of this
change in coverage, after the date of the increase.
Howard also testified that the Union was never notified
that there was to be an increase in life insurance prior to
the Company's notification of the increase.
4. Personal accident insurance
In October 1979, Respondent, by its personnel secre-
tary Teresa O'Dell, inserted a letter that was set forth on
the stationery of the Life Insurance Company of North
America and signed Terry O'Dell, in its office employ-
ees' pay envelope. This letter recommended that its em-
ployees participate in a "Voluntary Plan of Accidental
Death and Dismemberment Insurance."(See G.C. Exh.
12.) The letter went on to explain that the purchase of
such insurance was a voluntary matter, and that it could
be purchased, "at economical group rates," through the
convenience of payroll deductions. The insurance was
scheduled to become effective on November 1, 1979.
Also inserted was a flyer captioned "Personal Accident
Insurance" which explained the coverage and costs that
the employees could select under this group policy.
Dorothy Redder, the payroll clerk, testified that the
Company administered the plan by deducting the premi-
ums from the consenting employees' pay, forwarding
such payments to the insurance company, and keeping
records of employee contributions. It was stipulated that
Respondent had not notified or bargained with the
Union concerning the solicitation and administration of
this program.
5. Conclusion
It is uncontested by Respondent that after the Union
had been certified, and while the parties were engaged in
negotiations, the Company made unilateral changes in
wages and insurance programs, without any prior notice
to the certified bargaining representative.
It is well settled that good-faith compliance with Sec-
tion 8(aX5) of the Act presupposes that an employer will
not make unilateral changes in wages or benefits without
affording the employees' statutory representative an op-
portunity to bargain collectively with the employer
about such changes. N.LR.B. v. Benne Katz, et al., d/b/a
Williamsburg Steel Products Company, 369 U.S. 736, 747
(1962); N.LR.B. v. Crompton Highland Mills, Inc., 337
U.S. 217, 224, 225 (1949); Master Slack and/or Master
Trousers Corp., 230 NLRB 1054 (1977). Such unilateral
action "tends to subvert the Union's position as the rep-
resentative of the employees .... " N.L.R.B. v. Insur-
ance Agents International Union, AFL-CIO [Prudential In-
surance Company], 361 U.S. 477, 485 (1960).
In defense of its actions Respondent presents a series
of defenses which are reviewed below:
a. The merit increase
Respondent argues in its brief that it had an established
policy to grant merit increases, and since no agreement
had been reached, it could, and did, grant merit increases
as a company prerogative.6 However, this is not the law,
as the courts and the Board have held that merit wage
increases are mandatory subjects of collective bargaining,
and that the continuation of a company's granting them
once it has commenced bargaining with the statutory
bargaining agent, violates Section 8(a)(5) of the Act.
N.L.R.B. v. Katz, supra at 746; Brockway Motor Trucks,
Division of Mack Trucks Inc. v. N.L.R.B., 582 F.2d 720
(3d Cir. 1978).
b. The 25-cent increase
Respondent's main contention is that this allegation of
the complaint is barred by Section 10(b) of the Act,
which provides for a 6-month statute of limitations. It is
Respondent's position that the 25-cent wage increase was
"put into effect" on April 2, 1979, and therefore oc-
curred 6 months prior to the filing and serving of the
charge on April 19, 1979, in Case 8-CA-13281.
However, the law and the evidence does not support
Respondent's position. It is well settled that the 6-month
period does not begin to run until the party adversely af-
fected has received actual or constructive notice of the
conduct constituting the alleged unfair labor practice.
Wayne Electric Inc., 226 NLRB 409, 416 (1976); South-
eastern Michigan Gas Company, 198 NLRB 1221 (1972).
Also as stated in L C. Cassidy & Sons, Inc., 185 NLRB
920, 926 (1976), the notice whether actual or construc-
tive, must be clear and unequivocal. And, since Section
10(c) is a defense, the burden is on Respondent to estab-
lish notice. Alabaster Lime Company, Inc., 199 NLRB
1116, 1118 (1972). Certainly Sturman's telling his depart-
ment heads on April 6 to dispense this notice of the raise
does not meet the Board's test, especially since the gen-
eral manager admitted that he did not know if these su-
pervisors had done so or not.
I fmd that the earliest date possible on which the
Union received a clear and unequivocal notice of this
across-the-board increase was on April 20, for it was on
this Friday payday that the employees received their pay
envelopes for the 2 prior pay weeks. There, stuffed in
their envelopes, was Sturman's letter of April 19, 1979,
announcing the general increase.
Even if the letters from Sturman had been received on
April 19, instead of April 20, the statute of limitations
No evidence was submitted by the Company in support of this allega-
tion.
598
PLYMOUTH LOCOMOTIVE WORKS, INC.
would not be a bar to this allegation, as Section 102.114
of the Board's Rules and Regulations specifies that the
day on which the alleged unfair practice occurs is not
computed in measuring the limitations period. The Balti-
more Transfer Company, 94 NLRB 1680 (1951). I there-
fore find that the charge was timely filed within the 6-
month period of limitation.
As a second defense, Respondent alleges that the wage
increase was covered by a Board settlement in Case 8-
CA-12502 made on July 9, 1979. However, no evidence
in support of this allegation was produced and it must
fail for lack of proof.
Accordingly, I find that the merit increases granted in
1979 and 1980, and the 25-cent increase granted on April
20, 1979, to the bargaining unit employees represented
by the Union, constituted violations of Section 8(aX5)
and (1) of the Act.
c. Life insurance
Respondent's defense is bottomed on the assertion of a
commercial contract between itself and an insurance
company, that provides for life insurance for its produc-
tion and maintenance employees, as well as its office em-
ployees. Dorothy Redden, a payroll clerk, testified that
the contract with the insurer provided coverage in the
amount of $10,000 life insurance effective as of October
1, 1978, with the coverage automatically increasing to
$12,000 as of October 1, 1979. Respondent contends in
its brief that the Union never requested any change or
cancellation of the policy, therefore the insurance com-
pany contract remained in effect.
It is clear that Respondent carried such insurance for
its plant employees as this is set forth in their collective-
bargaining agreement (Resp. Exh. 5). But Respondent
bargained with the Plymouth Order of Mechanics, and
both parties agreed to these amounts of insurance and
yearly increases. However, Respondent admittedly did
not bargain with the office employees Union about this
increase, and insurance is a mandatory subject of bar-
gaining. Master Slack, 230 NLRB 1054. Certainly if an
Employer could increase insurance benefits at its own
discretion while bargaining with a union for a collective-
bargaining agreement, it would undermine the Union's
position in the eyes of its members, and cause them to
wonder if they really needed a Union. This is something
Respondent may not do. American Seating Company, 106
NLRB 250 (1953); Consolidated Fiberglass Products Co.,
Inc., 242 NLRB 10 (1979).
d. Personal accident insurance
Respondent contends that the offering of the Acciden-
tal Death and Dismemberment Policy was merely a so-
licitation by its insurance carrier for new business.
However, the evidence shows that it was much more
than that. Respondent played a substantial part in its ef-
fectuation, as it presented it to the employees, took part
in the administration of the plan, deducted the premium,
kept records of employee contributions, and the employ-
ees received the advantage of group rates. Certainly the
union employees received something of value from the
Employer, that they had previously not received. Again,
such tactics have the effect of undermining the Union, as
the receipt of such a benefit without the aid of its bar-
gaining representative brings to the employee's mind the
question of the need for a union. Such personal accident
insurance, under the facts of this case, is a mandatory
subject for collective bargaining, and Respondent should
not have put it into effect without bargaining with the
Union about its adoption. General Electric Company, 150
NLRB 192 (1964).
e. Notice on withdrawal of benefits
As previously stated, on October 19, 1979, the Union
filed a charge with the Board, charging that Respondent
had violated Section 8(a)(1) and (5) of the Act, by
making unilateral changes in the terms and conditions of
employment for employees in the office clerical and
technical employee bargaining unit. On the following
November 23, the Board issued a complaint (Case 8-
CA-13281). Thereafter, on January 25, Respondent re-
plied to this charge by posting in its office a two-page
letter, giving its version of the negotiations that had been
going on between the parties, and also discussed the
complaint that had been issued. Management's letter then
went on to say:
The Regional Director did issue a complaint on
the rate increases and insurance based upon the
union charges. Therefore, this puts the Company in
a position warranting withdrawal of said insurance
and merit increases and reclaiming by payroll deduc-
tion, the amounts already paid, unless said charges
are withdrawn.
Respondent defends this posting by stating in its brief
that it had the right to inform employees of what had
transpired during its negotiations with the Union. While
this is so, it, however, had no right to threaten its em-
ployees that unless the Union withdrew the charges it
had filed, Respondent would take away the economic
benefits they had received in increased insurance cover-
age, and wage increases. The threat was also double-bar-
reled in that not only would these benefits be withdrawn,
but the employees would also have to pay back the
amount of increases they had received. Certainly such
threat of economic reprisal would intimidate these em-
ployees in the exercise of their statutory rights, and vio-
lated Section 8(aX1) of the Act.
D. No-Distribution, No-Solicitation Rules
On or about April 1, 1979, Howard received from
Hickey, the original labor consultant of Respondent, a
copy of company rules and regulations that was attached
to Hickey's letter dated March 28, 1979. General Rule
20, thereon, provided as follows:
Employees will be subject to disciplinary action
when it is a violation of:
H. Distributing written or printed matter of any
description on Company premises without proper
authorization.
599
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the next negotiating meeting Howard, as president
of the Union, questioned Hickey who was present with
Kibler, about the accuracy of these rules and regulations.
Hickey advised Howard and the other four members of
the negotiating team that the document contained a com-
plete set of rules that were currently in effect. Upon pe-
rusing its contents, Howard countered by requesting that
the Company pay the backpay, that would be required
under the cost-of-living provisions contained in the docu-
ment. Thereupon, Hickey advised the union negotiators
to cross out that cost-of-living provision. Howard then
asked for an up-to-date copy of the rules and regulations.
A month or two later, at a subsequent negotiation ses-
sion, Hickey provided the Union with a second set of
such rules (G.C. Exh. 13). This document contained the
identical no-distribution rule as set forth above. Howard
was never told that this rule was no longer in effect.
A third set of Respondent's rules and regulations was
also received into evidence (G.C. Exh. 10). It was stipu-
lated that these rules had been in effect in the office
since July 11, 1979. Listed under the Minor Offenses cat-
egory were the following:
18. Distributing literature, written or printed
matter of any description on Company time in work
area not incidential to Company business.
19. Soliciting or collecting contributions, for any
purpose, on Company time, without approval of
management.
Respondent's witness Teresa O'Dell, the personnel de-
partment secretary, testified that to the best of her
knowledge, no company personnel had prohibited union
members from distributing union literature. She also tes-
tified that, in fact, its members had distributed meeting
notices and other union literature.
1. Conclusion
Respondent's defense is that since there is no evidence
that it ever enforced these rules, and in that it did allow
union members to distribute union literature, it has not
violated the Act.
However, this defense is wide of the mark. The Board
and the courts have long held that the promulgation and
maintenance of an awful rule is a violation of the Act.
Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793
(1945); N.LR.B. v. Lexington Chair Company, 361 F.2d
283 (4th Cir. 1966). The potential inhibitory effect of the
rules, even if they were not enforced, justifies Board
action. Paceco, a Division of Fruehauf Corporation, 102
NLRB 2149 (1979). That all of these quoted rules were
unlawful is readily apparent.
The original and second rule would prohibit distribut-
ing union literature on company primises at any time,
and in any area, which must include nonworktime, and
such nonwork areas as restrooms and cafeterias, and
therefore violated the Act. The third rule, put into effect
on July 11, 1979, while not as broad as the original rules,
were nevertheless too ambiguous and overly broad to
satisfy the requirements of the statute. In Florida Steel
Corporation, 215 NLRB 97 (1974), the Board held that
"the term 'company time' like 'working hours,' is unduly
ambiguous and tends to connote all paid time from the
beginning to the end of the work shift, and can easily be
interpreted as a restriction on solicitation during break-
times or other periods when employees are compensated
though not actively at work." Since Respondent's rules
can fairly be interpreted by an employee to prohibit the
distribution of union literature during nonworking hours,
they violate Section 8(a)(1) Drum Parts, Inc., 222 NLRB
511 (1976); Stoddard-Quirk Manufacturing Co., 138
NLRB 615 (1962).
The first two rules are also unlawful as they prohibit
any distribution of any printed matter on company prem-
ises "without proper authorization." This requirement of
prior company authorization has been prohibited by the
Board, as stated so clearly in AMC Air-Conditioning Co.,
232 NLRB 283, 284 (1977): "However, Respondent
cannot lawfully require an employee to secure permis-
sion as a precondition to engage, without fear of manage-
ment interference or retaliation, in protected concerted
activities on company property in nonwork areas on the
employees' free time."
Accordingly, I find that by promulgating and main-
taining these unlawful no-distribution, no-solicitation
rules, Respondent violated Section 8(a)(l) of the Act.
E. Elimination of Timekeeper Position and Demotion
of Howard
1. The General Counsel's case
Howard started working for Respondent in July 1971
as an errand boy. After several weeks he was put in the
production office, where he worked with expeditors as a
clerical worker.7 Besides performing clerical duties he
also was required to go to the stockroom and check the
availability of parts, and at the time of vacation of an ex-
peditor, fill in for him. Howard testified that in 19738 he
was made the timekeeper for the factory employees,
which job required him to go into all parts of the shop,
during the course of a day. His typical day consisted of
collecting each shop employee's daily labor reports, and
then calculating the time an employee performed on the
parts shown in the reports. He would then post this time
into ledgers. He would then go into the shop, pull the
timecards of the production and maintenance employees,
and verify the timecard with the daily labor report. Next
he would close out shop orders that had been completed,
keep records of the employees' absences, and fill out
shop orders when they were needed in case of rework.
This work gave Howard substantial knowledge of the
parts the Company produced, because if there was any
discrepancy in the labor reports he would have to go to
the files, check the part number, check the shop order
and pull the blueprints. Howard admitted that he could
? Expeditors were subsequently called planners, and their department
name was changed to "planning" at some undisclosed date.
8 Howard's recollection as to the date is apparently in error, as Resp.
Exh. 1, captioned "Update Report," dated 9/11/72, states that Howard
was the timekeeper at that time. This report shows that Howard was of-
fered a position that had opened up in the planning department which
offered a greater chance for advancement, more responsibility, and an im-
mediate increase in pay. Howard declined the job offer because of off-
the-job factors.
600
PLYMOUTH LOCOMOTIVE WORKS, INC.
not read complicated blueprints, but testified that he had
learned to read blue prints on parts, through his handling
of blueprints. 9
Howard continued his duties as a timekeeper for the
next 6 years, and in July 1978, when he organized the
Union, he was still working as the factory timekeeper.
Subsequently, when he was serving as the chief negotia-
tor for the Union, he continued to perform his duties of
timekeeper.
In July 1978, the Company started a job evaluation
program, and Howard was evaluated by his then super-
visor, Jerry Slone, the chief manufacturing engineer.
Howard testified that Slone filled out his appraisal form,
rated him with scores of 7 to 8 on a basis of 10, for three
of the four evaluations, and gave him a low rating in the
category "attitude." Slone informed Howard at this time
that he would not receive a merit increase because of his
point total. This was the first time Howard had ever
been told that he had a poor attitude, and, prior to this
time, supervisors had told him that he did a very good
job.
A year later, on Howard's anniversary date in July
1979, he asked Slone if he had received Howard's job
approval form. ' Howard testified that Slone said he had
it in his drawer, but commented that there was no use in
filling it out and get Howard "all riled up," because
there was no way he was going to get an increase. When
Howard asked Slone if this was because of his being in
the Union, Slone replied "that was probably so."
In September 1979, Howard met with Kibler, told him
that his job appraisal form had not been filled out, and
that Slone's reason for not doing so was because of his
union activity. Kibler's reply was, "He [Slone] is prob-
ably right, but I would not swear to that in court." "
In December 1979, Howard learned for the first time
from labor consultant Rector that his job of timekeeper
was to be abolished. Rector advised Howard that the
Company was going to go along with the bumping pro-
cedures agreed to in the collective-bargaining negotia-
tions, 2 and that Howard would be allowed to bump any
I Roger Collins, who became plant superintendant on February 1, after
serving as general foreman, verified that Howard's duties as a timekeeper
were as described by Howard, except that he had never seen Howard
write up orders. Howard was completely a credible witness, his testimo-
ny is uncontradicted, and I find that he wrote up orders.
'o The testimony of Kibler indicates that the practice of having job ap-
praisals started in 1978.
" Slone was called by Respondent as its witness and was asked a few
preliminary questions. After testifying that he was at one time Howard's
supervisor, he was questioned as follows:
Q. Now there has been some testimony here that you told Mr.
Howard that you thought that the elimination of his job was because
of his Union activity.
Did you ever make any such statement as that?
A. No, sir, I did not.
Mr. Rector: No further questions.
Since Slone was not questioned as to his conversation with Howard
about his failure to receive an increase, Howard's testimony is uncontra-
dicted and I credit it. I also credit Howard's testimony as to his conver-
sation with Kibler, as this testimony remains uncontradicted.
n" The parties had agreed to the already existing bumping procedure
contained in the shop employees contract. The language contained there-
in as to bumping provided that when an employee was laid off, such em-
ployee could "Bump an employee of lesser seniority provided he is quali-
fied for the work by work experience and can perform the work with a
minimum amount of supervision."
office employee as long as Howard had more seniority
and the qualifications to perform the job.
On February 18, Howard received a memo from Plant
Manager Collins that his job was to be abolished as of
March 1. The memo also informed Howard that he
would have the right to bump a less senior employee,
providing he could perform the work, and that he was to
contact Kibler to discuss his options.
Three or four days after Howard received this brief
memo, he met with Kibler and informed the controller
that he thought he was qualified for the jobs of shipping
clerk, parts salesman, and planner. On February 27,
Howard again met with Kibler. At this meeting, Kibler
advised Howard that he had checked with his supervi-
sors, reviewed his file, and had concluded that he was
only qualified to do one job, inventory control clerk,t 3
and that he could bump Margaret Reeder, the inventory
control clerk. When Howard asked what would happen
to Reeder, Kibler replied that she would be laid off, as
she was not qualified to bump anyone. On February 27,
Howard informed Kibler that he had decided to bump
Reeder. Kibler then told Howard that his job was going
to be put on a computer, and when Howard asked what
about the parts of his job that could not be put on a
computer, Kibler replied that he did not know.
On the morning of February 29, a union committee
consisting of Howard and two others, met with Kibler to
discuss the abolishing of the timekeeper job. Howard
made a recommendation that he be a locomotive planner,
but was turned down. Kibler then told the committee
that the decision of the Company to abolish the position
of timekeeper, was final. Later in the morning, Howard
and Reeder met with Kibler, and two other company of-
ficials. Kibler proceeded to inform Reeder that Howard
had bumped her job and that she was to be laid off.
Howard further testified that during the conversation
"Mr. Kibler made the remark to Margaret Reeder that
this would not have happened if it wasn't for the
Union." Reeder, when asked if there was any reference
to the Union at this meeting, testified that she was upset
and crying when Kibler said, "That is what comes from
having a Union," or some words to that effect.
Kibler admitted that he made a reference to the Union
at this meeting, and described the reference as follows:
"The reference was that had an organization not existed,
we would not have used the bumping procedure to elim-
inate a particular individual." On being shown his pre-
hearing affidavit, Kibler agreed that he told Reeder, "If
the Union had not been organized she would not have
been bumped."
On March 1, Howard commenced the duties of the in-
ventory control clerk and worked for 1 week. He then
met with Kibler and told him that he would take the
layoff instead of Reeder. Respondent agreed with
Howard's request, Reeder returned, and Howard was
laid off on March 7.
" An inventory control clerk was paid $5.07 an hour, whereas the
timekeeper received $6.42 an hour.
601
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Respondent's defense
Respondent contends that the decision to eliminate the
timekeeper position was made some years before its
actual elimination, and that Howard became aware of the
decision on March 21, 1978. Donald Branthouse, who
had been involved with computers for Respondent since
1968, testified that Respondent projected, in apparently
1969, that some of the duties of the timekeeper could be
assigned to a computer.' 4 Branthouse testified that this
"labor projection" would eliminate the factory timekeep-
ing operation completely. He also testified when
Howard's duties were computerized, his duties of verify-
ing the absentees and getting this data into data process-
ing was given to foremen, so as to give them more of a
handle of their work force.
General Manager Sturman testified that on March 21,
1978, he held a meeting with four of Respondent's high
officials'5 and Howard. The purpose of the meeting was
to discuss ways and means of improving shop time re-
porting, and to correlate it with the manufacturing proc-
ess so as to improve Respondent's cost accounting.
When asked if those present were informed that the
timekeeper's job would be computerized, Sturman
vaguely answered:
The essence of this meeting was to discuss the
volume of the data and the best way to go about
accumulating and recording. And the computer was
definitely the consideration at the time.
At the end of the meeting Sturman concluded that the
three computers the Company had were inadequate, and
that they were going to have to wait until they upgraded
the system.
According to Kibler the Company decided to elimi-
nate the timekeeper job about the first of 1980, and the
controller admitted that this decision was made before it
was discussed with the Union or Howard. He also testi-
fied that he did not remember when he first discussed
the elimination of the job with Howard, but did not be-
lieve that it occurred before February 1980. 6
Kibler admitted he met with Howard in the latter part
of February, at which time he told Howard that he had
two options, (1) layoff, or (2) bump another employee in
the bargaining unit, as long as he had more seniority and
could perform the duties of that job. He also admitted
that a day or so thereafter he told Howard that there
was only one position for which he was qualified to
bump to, inventory control clerk.
Respondent in its brief contends that Howard was not
qualified for any of the three positions he spoke to
Kibler about: shipping clerk, parts salesman, and planner.
Respondent also contends that even if he were, he would
not be allowed to bump any employee currently in those
positions, because all three positions are in a higher labor
" Resp. Exh. 6 is a labor flow chart that is dated March 6, 1969.
15 Bill Ross, his operating assistant; Gerald Sanders, director of engi-
neering; Jerry Slone, director of manufacturing; and Glen Dowd, manu-
facturing engineer manager.
" Howard fixed the date as February 18, the date he received the
letter from Collins, G.C. Exh. 17, and I so find.
bracket, grade 5, and bumping up from Howard's grade
3 would not be permitted.
3. Analysis and Conclusion
a. Elimination of position
The Board has long held that the elimination of unit
jobs, albeit for economic reasons, is a matter within the
statutory phrase "other terms and conditions of employ-
ment" and is a mandatory subject of collective bargain-
ing within the meaning of Section 8(a)(5) of the Act.
Town & Country Manufacturing Company, Inc., 136
NLRB 1022, 1027 (1962). Accordingly, where the auto-
mation of bargaining unit work will result in the elimina-
tion of unit jobs, it is the duty of the employer to bargain
with its employees' bargaining representative over the
decision to install automated equipment, as well as the ef-
fects of such decision. John Hutton Corp., d/b/a KUMU
Radio AM/FM, 213 NLRB 85 (1974); Richland Inc., 180
NLRB 91 (1969). It is also required that the employer in
such circumstances give sufficient notice and be willing
to bargain in good faith so that the bargaining repre-
sentative can have a meaningful opportunity to bargain.
Rochet and Ruud, d/b/a The Renton News Record, and
Bellevue American Publishing Company, Inc., and North-
west Business Machines Company, Inc., and The Produc-
tion Company, Inc., 136 NLRB 1294 (1962).
However, in the instant case, Respondent neither gave
sufficient notice, nor did it bargain with the Union about
the elimination of the job of timekeeper. When Howard
first learned in December 1979 from Rector that the job
of timekeeper was to be abolished, there is nothing in the
record to show that this was being presented to Howard
as the union representative to be bargained over. Rather
it was presented to Howard as the employee whose job
was simply going to be abolished. The decision had al-
ready been made by management, and there was nothing
to bargain over. Howard's only decision, as it was laid
out to him by the consultant, was to decide which office
employee he wanted to bump, provided such employer
had less seniority and Howard had the qualifications to
perform the job.
Kibler confirmed that the decision to eliminate the job
was made before Respondent notified Howard or the
Union. Yet, Howard was not notified of the specific date
until he received Collins' memo on February 18, which
was less than 2 weeks before the elimination became ef-
fective. It was not until February 29 that union repre-
sentatives met with Kibler to bargain over the job elimi-
nation and its effects, and they were summarily rebuffed
by the director of industrial relations who told them that
the decision of the Company was final.
Respondent's defense that the decision to eliminate the
position was made before the advent of the Union, and
that Howard was aware of the decision in March 1978 is
not supported by the evidence. It is true that in 1969 Re-
spondent projected that some of the timekeeper's duties
could some day be put on a computer, but there is no
evidence this was ever conveyed to Howard after he
was hired in 1971. Then, at the meeting called by the
Company in March 1978 to discuss ways and means of
602
PLYMOUTH LOCOMOTIVE WORKS, INC.
improving shoptime reporting and cost accounting, Stur-
man's testimony established, at most, that putting some
timekeeping data on a computer was discussed as a possi-
bility at some unknown future date. In no way does the
evidence establish that at this meeting, or at any other
time prior to Rector's conversation with Howard in De-
cember 1979, that Howard or the Union was told the
timekeeper's job would be computerized, and the posi-
tion eliminated.
Thus, 13 months elapsed from the date that the Union
was certified until Respondent finally told Howard that
the timekeeper's work was in part to be computerized
and the position eliminated. Yet, during these many
months, the Company never broached at any of its nego-
tiating meetings, that the Company was desirous of and
planning to eliminate this job. When it finally was pre-
sented, it was a fait accompli. No opportunity to negoti-
ate the effects of the computerization was proffered to
the Union, and at every turn Howard and the union ne-
gotiators were told that the decision was final. There
were parts of the timekeeper's job that were not taken
over by the computer, and Kibler admitted that he did
not know how they were to be handled. Also, some
parts of the job were even assigned to supervisors. Cer-
tainly, there were meaningful negotiations that could
have been engaged in, concerning the ramifications of
this vital change in operations. But Respondent adamant-
ly refused to do so.
I find therefore that Respondent violated Section
8(a)(1) and (5) of the Act by unilaterally eliminating the
position of timekeeper without notice to or bargaining
with the Union.
ping clerk, parts salesman, or planner." As Kibler testi-
fied it was he who made the decision as to what other
jobs Howard was qualified for. However, Kibler, who
was never Howard's supervisor, and not really familiar
with his duties, did not discuss Howard's qualifications
with Jerry Slone or Roger Collins, who had been
Howard's supervisor during the 1-1/2-year period prior
to the elimination of his job. This is all the more remark-
able since Kibler had admitted that the supervisors
evaluate the performance of employees and actually
decide what increase in pay should be given to them.
Kibler did assert that to determine Howard's qualifica-
tions for the other jobs, he reviewed the positions for
which Howard had more seniority than the incumbent
employee, looked at the qualifications required of these
employees, and examined Howard's personnel file. How-
ever, when the personnel director was questioned specifi-
cally about these positions, he admitted a lack of knowl-
edge about the training and qualifications needed to per-
form their duties. The record shows that Howard had
more seniority than the following employees in the clas-
sifications reviewed by Kibler:
Name
Dan Carter
Francis Dorian
Terry Hopkins
R.E. Kleman
Terry Perkins
Barbara D. Slone
Classification
Planner
Shipping Clerk
Lift truck parts sales
Planner
Planner
Planner
Hourly
Rate
$6.55
8.19'
7.00
7.28
6.08
5.84*
b. Demotion
Although Respondent contends in its brief that there
was no union animus in the record, I do not find this to
be so. After Howard organized the Union in 1978, he
suddenly learned that he had a bad attitude, and was
denied a merit increase. Then, I year later, Howard's su-
pervisor, Slone, told him that his union activities would
probably prevent him from getting any increase, and he,
in fact, received no increase. Kibler in turn verified
Slone's statement when Howard questioned him about
not having his job appraisal filled out. Clearly, Respond-
ent harbored animus toward the founder and president of
the Union, and through him to the Union.
Based on the foregoing evidence of Howard being the
organizer and president of the Union, Respondent's
knowledge of his union activities, the union animus, and
Respondent's failure to grant or consider Howard for a
merit increase, and its unilateral elimination of the time-
keeper job without bargaining with the Union, I con-
clude that the General Counsel has made a prima facie
showing of unlawful motivation. Under Wright Line, a
Division of Wright Line Inc., 251 NLRB 1083 (1980), this
causes the burden to shift, and the Respondent must
prove affirmatively that the demotion of Howard would
have occurred even in the absence of his protected activ-
ities.
We now turn to the first of Respondent's defenses:
that Howard was not qualified for the position of ship-
* The hourly rate of these two employees, who were paid
monthly, is calculated on the basis of a 40-hour week, 173 hours
a month.
While the General Counsel contends that Howard had
the qualifications to handle the shipping clerk's job, I do
not find that to be the case. Respondent makes not only
domestic shipments but also shipments to foreign coun-
tries, which requires the knowledge of a vast amount of
specialized shipping rules and regulations. Howard's
work experience with the Company in no way gave him
experience in this unique field.
However, when Howard's work experience is matched
with the duties of the other two classifications, it is read-
ily apparent that Howard was qualified to handle those
jobs and was entitled to bump five employees other than
Reeder, According to Kibler, he considered Howard for
the positions of parts sales and planner and in both in-
" I have not included reproduction clerk in this review as the General
Counsel did in his brief, because Howard did not express to Kibler any
interest in this classification. Also, it is doubtful if Howard was qualified
for this position, since it required not only the operation of various sizes
of blueprint machines, but also required the ability to disassemble and as-
semble their parts. There is nothing in the record to indicate that
Howard possessed such mechanical skills.
603
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances decided that he was not qualified because he did
not have a sufficient knowledge of the parts.
In the almost 9 years thlat Howard worked for Re-
spondent he was around parts for the entire time, with
the possible exception of his first 2 weeks when he was
an errand boy. During the period he was in the produc-
tion office he went into the stockroom and checked the
availability of parts for the expeditors. For the 7 or 8
years in which he worked as the timekeeper it must be
remembered that he was the factory employees' time-
keeper, not the office employees', and he was constantly
in and about the factory. His first duty each day was to
pick up the daily labor reports of the shop employees,
which described the part each production employee was
working on. Later he went through the shop and pulled
timecards and matched the time thereon with the time
shown in the daily labor report for the parts. He closed
out shop orders, and he filled out shop orders, all of
which required a knowledge of parts. When there was a
discrepancy in records he would pull the blueprint and
check it against the labor reports. Since Howard was
working on records concerning parts, and working
around them in the shop and stockroom as a daily matter
for over 8-1/2 years, I find that he did have a substantial
knowledge of the parts manufactured, purchased, and
used by Respondent.
Raymond E. Kleman, a planner for Respondent for
the past 7 years, testified that he started with the Compa-
ny as a stockman, then was a stock chaser, moving mate-
rial from one machine to another. After approximately 2
years of such duties he was made a planner, with virtual-
ly no training and little supervision. He testified that a
planner receives an order for a part from data process-
ing, then checks the records to see if the part is on hand.
If it is not in stock, he requisitions a blue print by the
part number, and then determines if the part is to be
manufactured in the shop or purchased. If the item is to
be purchased, he makes out a requisition and sends it to
the purchasing department. If the part is to be made in
the shop, he writes up a shop order, and sends it down
to the shop. Whether manufactured or purchased, the
planner follows through on the part's delivery so as to
see that it is on hand by its scheduled date.
Certainly if Kleman's 2 years of working around parts
fitted him for the job of a planner, Howard's almost 9
years of working around parts gave him enough on-the-
job training to hold down such a job. Barbara Slone, the
most junior of the four planners, of whom Howard had
grater seniority, had been an inventory control clerk and
secretary before she became a planner. Respondent pro-
duced no evidence to show that she had any experience
with parts in the shop, prior to being made a planner.
Terry Hopkins, the lift truck parts salesman, had start-
ed with the Company in the stockroom, had worked as a
stock chaser, then as a lift truck operator. In 1977, he
moved into the sales department for lift truck parts. He
receives oral and written inquiries from customers about
parts and prices. To supply this information he consults
an inventory card file, a computer and price book. When
he takes a telephone order he writes it up and sends it to
data processing for processing. If a customer calls in
about an overdue part, he contacts the purchasing de-
partment or shop to expedite delivery. Each of the Com-
pany's other tow lines of products also had a parts sales-
person but both had more seniority than Howard. How-
ever, Howard had seniority over Hopkins, and I find
that Howard did have the qualifications to handle the
position of lift truck parts sales, and could have bumped
Hopkins.
Of particular significance in weighing Respondent's
motive as to its not offering the job of planner to
Howard, is the fact that in late 1972, it obviously consid-
ered him qualified for the job, because it offered that po-
sition to him. Yet, after he acquired 7 or 8 more years of
further knowledge of the plant, its parts and its products,
he is adjudged to be unqualified.
Respondent contends in its brief, as its second defense,
that Howard could not bump up from his grade 3 to the
planners and parts sales grade 5. However, a reading of
the bumping procedure in General Counsel's Exhibit 16
does not show that an employee cannot bump to a
higher grade. Even if it did, this would be waived and
no defense, as Kibler testified that he reviewed these
three positions to see if Howard was qualified for them.
Plainly the director of industrial relations saw no bar to
bumping up.
While I find from the record before me that Respond-
ent did want to put some of the timekeeper's duties on
the computer, it seized up this strategy to demote
Howard and cut his wage by $1.35 an hour, to a rate
lower than that of any of the four planners and parts
salesmen, all of whom were junior to him in seniority.
But for his union activity, he would have been permitted
to bump into a planner's job or a sales parts job, and one
of these employees would have been bumped in the ordi-
nary course of procedure, so that some junior employee
would have been laid off for a bona fide economic
reason. It is true that Howard did work for a week as
the inventory clerk, and then quit, but Respondent's de-
motion amounted to a constructive discharge. "Where
. . .an event or requirement imposes on an employee an
onerous or burdensome choice between remaining in em-
ployment or acceding to his employer's request and such
event or requirement is generated by an employer's
union animus, it does not matter how burdensome is the
choice or how convenient are the alternatives." John
Dory Boat Works, 229 NLRB 844, 850 (1977). Central
Dispatch, Inc. and Mike D. Gigirolamo, 229 NLRB 979
(1977).
However, I do not find that the General Counsel has
proved by a preponderance of the evidence that the Re-
spondent violated Section 8(a)4) of the Act by demoting
Howard and refusing him the opportunity to bump em-
ployees with less seniority. The General Counsel recites
in his brief that Howard filed three charges against the
Company. Since one of these was filed after his demo-
tion it could not have contributed to the Company's
motive to retaliate against Howard. Also, it is true that
Respondent's labor consultant during the course of the
hearing expressed irritation at the number of charges
filed, and asserted that "half of our negotiating time was
spent arguing about something that had already been set-
tled." Since the parties bargained until July 22, Respond-
604
PLYMOUTH LOCOMOTIVE WORKS, INC.
ent's hyperbole could be referring to negotiating sessions
that took place after Howard's demotion, and events
which occurred at such sessions could not have influ-
enced Respondent's decision to demote Howard in Feb-
ruary. Accordingly, I shall recommend that this allega-
tion of the complaint be dismissed.
c. Statement to Margaret Reeder
As previously set forth, Kibler told Reeder on Febru-
ary 29 that, because Howard had bumped her, she was
being laid off. I find that under Howard's testimony of
what Kibler said, "This would not have happened if it
wasn't for the Union," or under Kibler's version, "If the
Union had not organized, she would not have been
bumped," Respondent interfered with Reeder's Section 7
rights. The words expressed by the director of industrial
relations clearly indicated that the Union was the male-
factor, the root cause of her being laid off, and but for it
she would still have a job. While Kibler tried to explain
at the hearing what he meant, it has long been settled
that a violation of Section 8(a)(1) does not turn on the
employer's motive, but rather on "whether the employer
engaged in conduct which, it may reasonably be said,
tends to interfere with the free exercise of employee
rights under the Act." America Freightways, Co. Inc., 124
NLRB 146, 147 (1959). In the context of this meeting,
Kibler's statement to Reeder concerning the Union con-
stituted a violation of Section 8(a)(l).
F. Withdrawal of Recognition
The General Counsel's evidence as to this allegation is
a letter dated July 23, 1980, in which Respondent noti-
fied the Union that the Company believed that the Union
had lost its majority. The letter concluded by stating two
reasons why the Company believed that the Union had
lost its majority: "Since the certification year expired
October 31, 1979, and the bargaining unit did not sup-
port a strike vote the Company is no longer required to
bargain." At the hearing Respondent's labor consultant
stated on the record that the Company had called off
any further meetings after the negotiation session of July
22.
The legality of an employer's withdrawal of recogni-
tion from a certified union is governed by long-estab-
lished rules which were restated by the Board in Chet
Monez Ford:18
Under these rules, as set out in the Board's decision
in Celanese Corporation of America,"' a certified
union, upon the expiration of the first year follow-
ing its certification, enjoys a rebuttable presumption
that its majority representative status continues. The
presumption may be rebutted, however, by evi-
dence establishing that the union no longer enjoys
majority representative status. Also, even without
showing loss of majority, an employer may refuse
to bargain if he relies on a reasonably based doubt
as to the continued majority status of the union. As
to a reasonably based doubt, two prerequisites for
1" 241 NLRB 349, 350 (1979).
l" 218 NLRB, 658, 659 (1970).
sustaining that defense are that the asserted doubt
must be based on objective considerations and such
doubt must be raised in a context free of unfair
labor practices.
Certainly Respondent presented no hard evidence to
show that the Union no longer represented a majority of
the employees in the bargaining unit. Respondent then
must claim that in refusing to bargain it relied on a rea-
sonable doubt as to the Union's majority status. Turning
then to the first of the prerequisites, Respondent con-
tends that the employees in the bargaining unit did not
support a strike vote. However, the Company produced
no affirmative evidence to support this assertion. The
only testimony concerning a strike vote was that of
Howard. The union president testified that in April or
May, at a meeting, at which a quorum was present in ac-
cordance with the bylaws of the Union, a strike vote was
taken, and it was in favor of a strike. Howard's testimo-
ny is uncontradicted and credited. The union president
admitted that no strike had been called.
Assuming arguendo, that a majority of the union mem-
bers refused to go out on strike, this would not provide
support for a "reasonably based doubt" as to the Union's
majority status. Courts and the Board have long held
that the failure of a majority of employees to support a
strike falls short of overcoming the presumption con-
cerning the Union's continued majority status. Cavalier
Division of Seeburg Corporation, 192 NLRB 290, 305
(1971), enfd. sub nom. Allied Industrial Workers, AFL-
CIO, Local Union No. 289 v. N.LR.B., 476 F.2d 868
(D.C. Cir. 1973); Coca-Cola Bottling Works, Inc., 186
NLRB 1050, 1053 (1970). This is so because obedience to
a Union's strike call depends not only on loyalty to the
Union but also on a willingness to weather the economic
hardships of a strike. Anvil Products Inc., 205 NLRB 709
(1973).
Respondent also failed to meet the second prerequisite,
as its purported doubt was raised in a context of unfair
labor practices. As has been previously found, Respond-
ent by its various unilateral changes had undermined
union support in various ways in violation of the Act.
Then, in February and March, it eliminated the position
of timekeeper without notice to or bargaining with the
Union and refused to give Howard the opportunity to
bump employees who had less seniority than he and who
held jobs for which he was qualified. Finally, it main-
tained overly broad, no-distribution rules and no-solicita-
tion rules right up to the time of its notice to the Union,
that it was refusing to bargain with it.
While Respondent stated in its letter in which it with-
drew recognition of the Union, that an impasse had been
reached at the March 13 negotiation, I do not find that
this assertion is supported by the record. At this meeting,
as Howard testified without contradiction the parties
reached agreement on vacation and on holiday clauses.
At the last meeting, July 22, the parties agreed on the
hours of work, and the Union reduced its demand for a
wage increase from 14 percent to 10 percent. Thus, there
was give-and-take bargaining right up to the day prior to
Respondent's notice of its refusal to bargain. Even so, if
an impasse had been reached, the obligation to bargain is
605
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not concluded, but merely halted temporarily. Mechani-
cal Contractors Association of Newburgh, 202 NLRB 1, 11
(1973). The Board long ago enunciated this principle in
Central Metallic Casket Co., 91 NLRB 725, 573 (1950):
The existence of a bargaining impasse does not de-
stroy either the authority of the representative to
act within the sphere of its representation nor the
right of the employees to seek by collective action
(which may take the form of either further negotia-
tions or concerted application of economic pres-
sures) to pursuade the employer to accept the col-
lective position of the group as to the particular
terms which shall govern the employment relations.
Accordingly, I find that on or about July 23, 1980, Re-
pondent, in violation of Section 8(aX(5) of the Act with-
drew recognition, of the Union, at all times thereafter re-
fused to bargain collectively with the Union as the exclu-
sive representative of its employees in the appropriate
unit of office and technical employees, and by such con-
duct interfered with, restrained, and coerced its employ-
ees in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. By unilaterally granting merit increases to its office
and technical employees during the period of April 30,
1979, through April 1980, and by unilaterally granting a
25-cent-per-hour wage increase on April 20, 1980, when
a majority of the employees in the appropriate unit de-
scribed below at a Board- conducted election designated
the Union as their collective-bargaining representative,
without affording the Union the opportunity to bargain
about such matters, the Company has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
2. By modifying its life insurance plan for its office and
technical employees on October 1, 1979, and by adopting
and making available on November 1, 1979, a personal
accident insurance plan for its office and technical em-
ployees, when a majority of the employees in the appro-
priate unit described below at a Board-conducted elec-
tion designated the Union as their collective- bargaining
representative, without affording the Union the opportu-
nity to bargain about such matters, the Company has en-
gaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(aXS) of the Act.
3. By posting a notice on January 25, 1980, threatening
to withdraw insurance and merit increases, and to re-
claim such increases, and by maintaining overly broad
no-distribution and no-solicitation rules, Respondent has
interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed them in Section 7 of
the Act and has engaged in unfair labor practices in vio-
lation of Section 8(aXI) of the Act.
4. By unilaterally eliminating the timekeeper position
without notice to, or bargaining with the Union, when a
majority of the employees in the appropriate unit, de-
scribed below at a Board-conducted election designated
the Union as their collective-bargaining representative,
the Company has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(5) of
the Act.
5. By discriminatorily demoting Ervin W. Howard on
February 29, 1980, and refusing him the opportunity to
bump certain employees who had less seniority than
Howard, and who held jobs for which Howard was
qualified, thereby discouraging membership in the Union,
Respondent has engaged in, and is engaging in unfair
labor practices within the meaning of Section 8(a)3) and
(1) of the Act.
6. By telling employees on February 29, 1980, that
Margaret Reeder would not have been laid off if the
Union had not been organized, Respondent has inter-
fered with, restrained, and coerced its employees in the
exercise of the rights guaranteed them in Section 7 of the
Act and has engaged in unfair labor practices in violation
of Section 8(a)(1) of the Act.
7. By withdrawing recognition of the Union as the ex-
clusive bargaining representative of its office and techni-
cal employees on or about July 23, 1980, and refusing to
meet and negotiate with the Union thereafter, the Com-
pany has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) of the
Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent, having discriminatorily demoted Ervin
W. Howard, having refused him the right to bump junior
planners or lift truck parts salesmen, and in effect having
constructively discharged him, I find it necessary to
order it to offer him reinstatement to his former position
of employment of timekeeper, if it still exists, and if it
does not exist, then to a substantially equivalent position,
without prejudice to his seniority and other rights and
privileges, and make him whole for lost earnings and
other benefits, computed on a quarterly basis from date
of demotion to date of proper offer of reinstatement, less
any net interim earnings, in accordance with F. W. Wool-
worth Company, 90 NLRB 289 (1950), plus interest as
computed in Florida Steel Corporation, 231 NLRB 289
(1950). See, generally, Isis Plumbing <& Heating Co., 138
NLRB 716 (1962). As part of the remedy, I consider it
necessary to make Margaret Reeder whole for the
week's pay and benefits she lost in March 1980, as a con-
sequence of Respondent's illegal demotion of Ervin W.
Howard. Central Dispatch, Inc., 229 NLRB 979, 985
(1977).
It has been found that Respondent, without notice to
or bargaining with the Union, granted increases in pay,
modified the life insurance plan, made available a person-
al accident insurance plan, and eliminated the timekeeper
position. It will therefore be recommended that Re-
spondent cease and desist from unilaterally changing
606
PLYMOUTH LOCOMOTIVE WORKS, INC.
wages and conditions of employment, and eliminating
positions.
Having found that Respondent failed to bargain in
good faith with the Union as the certified collective-bar-
gaining representative of employees in an appropriate
unit of Respondent's employees, and having found that
Respondent refused to meet and negotiate with the
Union on or about July 23, 1980, and thereafter, I shall
recommend that Respondent, upon request, bargain col-
lectively in good faith with the Plymouth Office Work-
ers Union as the exclusive representative of all employ-
ees in the unit herein found to be appropriate for the
purpose of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment. To insure that the employees in the appropriate
collective-bargaining unit will have the opportunity to
enjoy the full benefits that may be derived from their se-
lection of a bargaining agent as contemplated by the Act,
I recommend that the initial year of certification be
deemed to begin on the date that the Company com-
mences to bargain in good faith with the Union as the
recognized bargaining representative of the employees in
the appropriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); George Webel d/b/a Webel Feed
Mills & Pike Transit Company, 217 NLRB 815, 826
(1975).
As Respondent has engaged in such egregious miscon-
duct as to demonstrate a general disregard for the em-
ployees' fundamental rights, I find it necessary to issue a
broad order requiring Respondent to cease and desist
from infringing in any manner upon rights guaranteed
employees by Section 7 of the Act. Hickmott Foods, Inc.,
242 NLRB 1357 (1979).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER20
The Respondent, Plymouth Locomotive Works, Inc.,
Plymouth Ohio, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Withdrawing recognition from and refusing to bar-
gain collectively in good faith with Plymouth Office
Workers Union, as the exclusive bargaining representa-
tive of all of its employees in the unit described below.
(b) Making or effecting any change in the wages,
hours, or other terms or conditions of employment of
employees in the collective-bargaining unit described
below, and eliminating any position in the bargaining
without first giving notice to their collective-bargaining
representative and affording such representative an op-
portunity to engage in collective bargaining with respect
10 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Kules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
to such change. The appropriate collective-bargaining
unit is:
All office clerical employees and technical employ-
ees employed at the Respondent's Plymouth, Ohio,
facility, excluding all production and maintenance
employees, and professional employees, guards, and
supervisors as defined in the Act.
(c) Demoting, discharging, denying the right to bump,
or otherwise discriminating against any employee for
supporting Plymouth Office Workers Union, or any
other union.
(d) Threatening employees with withdrawal of insur-
ance and wage increases, and with the reclamation of
such increases unless a charge at the Board was with-
drawn.
(e) Maintaining any rule which prohibits any employee
from distributing or soliciting literature on behalf of a
labor organization in nonworking areas during nonwork-
ing time.
(f) Expressing to employees that, but for the Union,
employees would not be laid off.
(g) In any other manner interfering with, restraining,
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
effectuate the policies of the Act:
(a) Upon request, bargain with the above-named Union
as the exclusive representative of the employees in the
unit described above, concerning wages, hours, and
other terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a
signed agreement.
(b) Offer Ervin W. Howard immediate and full rein-
statement to his former job of timekeeper or, if that job
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed, and make him whole for
any loss of earnings and other benefits he may have suf-
fered as a result of the discrimination against him, in the
manner set forth in the remedy section of the Decision.
(c) Make Margaret Reeder whole for any loss of earn-
ings and other benefits she may have suffered as a result
of her l-week layoff.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its plant in Plymouth Ohio, copies of the
attached notice marked "Appendix."2 ' Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediate-
ly upon their receipt, and be maintained by it for 60 con-
" In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Baord."
607
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secutive days, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
608