Porta-King Building Systems

National Labor Relations Board - Board Decisions

Feb 26, 1993

310 N.L.R.B. 539 (N.L.R.B. 1993)

539
310 NLRB No. 81
PORTA-KING BUILDING SYSTEMS
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In adopting the judge’s finding that the Respondent’s layoff of
five employees without first bargaining with the Union was in viola-
tion of Sec. 8(a)(5) of the Act, we find it unnecessary to discuss the
propriety of the judge’s citing Lapeer Foundry & Machine, 289
NLRB 952 (1988). See Holmes & Narver/Morrison-Knudsen, 309
NLRB 146, 147 fn. 3 (1992).
3 Member Devaney agrees that the Union did not waive its right
to bargain over the layoffs at issue. However, he finds it unnecessary
to distinguish the facts in American Diamond, a case in which he
dissented, from the circumstances presented here.
4 The text of the letter from the Respondent’s president to the
Union reads as follows:
This letter is to advise you that, even though Porta-King Build-
ing Systems intends to contest the allegation raised in the above
referenced unfair labor practice charge, we are still willing to
meet and discuss with you over the layoffs that occurred on
June 25, 1991, as well as over any other subjects that you may
wish to address. If you want to arrange such a meeting, please
feel free to contact me.
Porta-King Building Systems, Division of Jay
Henges Enterprises, Inc. and Carpet, Linoleum,
Hardwood & Resilient Tile Layers’ Local
Union No. 1310, affiliated with Carpenters Dis-
trict Council of Greater St. Louis, AFL–CIO.
Case 14–CA–21554
February 26, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 29, 1992, Administrative Law Judge John
H. West issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Charg-
ing Party filed a response brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, and to adopt the recommended Order as
modified.
The judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by unilaterally laying
off five employees on June 25, 1991. We agree.2 The
Respondent contends that any remedy should be lim-
ited because of the Union’s conduct after being in-
formed of the layoffs. In finding no merit in this con-
tention, we distinguish American Diamond Tool, 306
NLRB 570 (1992), in which the Board held that a
union may be found to have waived its right to bargain
over economic layoffs while negotiating its initial con-
tract with an employer.3
In American Diamond, the Board relied on several
factors to find the union waived its right to bargain
over economic layoffs. The Board observed that the
union could have objected to the layoffs at the parties’
initial bargaining session, but did not raise the issue at
that or subsequent sessions. Also, the Board noted that
the union actually proposed a management-rights pro-
vision that, if implemented as part of a complete con-
tract, would have permitted the employer to make the
layoffs without consulting the union, and that the em-
ployer tentatively accepted the proposal. The Board
concluded that the union could have requested bar-
gaining but failed to do so and instead ‘‘expressly sig-
nalled its willingness to permit such conduct in the fu-
ture.’’ Id. at 571.
Here, the Union has proposed no contract language
comparable to the proposal in American Diamond. Fur-
ther, the Union requested information related to the
layoffs. Accordingly, in contrast to American Dia-
mond, we do not find the Union’s conduct an express
signal of a willingness to permit the Respondent’s con-
duct in the future.
The Respondent further contends that its August 29,
1991 offer to bargain with the Union tolled its backpay
liability.4 Assuming, without deciding, that the Re-
spondent’s August 29, 1991 communication constituted
a good-faith offer to bargain, we find that it would not
be appropriate to toll the Respondent’s backpay liabil-
ity.
In light of our finding that the Respondent violated
Section 8(a)(5) and (1) of the Act, we are authorized,
under Section 10(c), to issue an order requiring ‘‘such
affirmative action including reinstatement of employ-
ees with or without backpay, as will effectuate the
policies of this Act.’’ Our task in applying Section
10(c) is ‘‘to take measures designed to recreate the
conditions and relationships that would have been had
there been no unfair labor practice.’’ Franks v. Bow-
man Transportation Co., 424 U.S. 747, 769 (1975).
Here, had the Respondent acted lawfully, it would
have provided the Union with an opportunity to bar-
gain before changing employee terms of employment.
An offer to bargain over layoffs after they have oc-
curred is no substitute for such prior notice. Once the
layoffs have taken place and unit jobs lost, the union’s
position has been seriously undermined and it cannot
engage in the meaningful bargaining that could have
occurred if the Respondent had offered to bargain at
the time the Act required it to do so. Indeed, in cases
involving unlawful unilateral changes, the Board’s nor-
mal remedy is to order restoration of the status quo
ante as a means to ensure meaningful bargaining, and
this policy has been approved by the Supreme Court.
Fibreboard Paper Products Corp. v. NLRB, 379 U.S.
203, 216 (1964). Therefore, we find that the Respond-
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 In support of its tolling argument, the Respondent relies prin-
cipally on United Gilsonite Laboratories, 291 NLRB 924 (1988), but
we find that the Respondent reads that case too broadly. Although
United Gilsonite indicates that backpay liability might be tolled if a
‘‘union fails to commence negotiations within 5 days of receiving
the employer’s notice of desire to bargain,’’ id. at 925, United Gil-
sonite must be understood in its context. In that case, the General
Counsel did not request a full status quo ante remedy, and the Board
tailored a remedy consistent with the more limited one the General
Counsel sought. United Gilsonite does not represent a general retreat
from the basic principle that restoring the status quo ante is the nor-
mal remedy in cases of unlawful unilateral changes.
The Respondent also excepts to its obligation to offer reinstate-
ment and backpay to two employees who allegedly quit voluntarily
on being notified of their layoffs. We leave to compliance the ques-
tion of how much, if any, backpay is owed these employees.
ent’s offer to bargain about the layoffs after they oc-
curred is insufficient to ‘‘undo the effects of [the viola-
tion] of the Act,’’ NLRB v. Seven-Up Bottling Co., 344
U.S 344, 346 (1953), and does not toll the Respond-
ent’s backpay liability. Accordingly, we agree with the
judge that ordering the Respondent to bargain with the
Union over the layoffs, as well as reinstating the laid-
off employees with full backpay, constitutes the appro-
priate remedy for the Respondent’s violation of the
Act. See Synergy Gas Corp., 309 NLRB 179 (1992).5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Porta-
King Building Systems, Division of Jay Henges Enter-
prises, Inc., Earth City, Missouri, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) To the extent it has not already done so, offer
to Jerry Fisher, Wilber Hartsell, Paul Henke, Chris
Leonard, and Charles David Orick full and immediate
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights or privi-
leges previously enjoyed, and make them whole for
any loss of earnings and benefits suffered by them by
reason of the unlawful actions found herein, in the
manner set forth in the remedy section of this deci-
sion.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT unilaterally lay off employees without
providing Carpet, Linoleum, Hardwood & Resilient
Tile Layers’ Local Union No. 1310, affiliated with
Carpenters District Council of Greater St. Louis, AFL–
CIO, with notice and an opportunity to bargain about
the decision to lay off employees and the effects of
that decision.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with Carpet, Lino-
leum, Hardwood & Resilient Tile Layers’ Local Union
No. 1310, affiliated with Carpenters District Council of
Greater St. Louis, AFL–CIO, concerning the decision
to lay off employees on June 25, 1992.
WE WILL, to the extent we have not already done so,
offer to Jerry Fisher, Wilber Hartsell, Paul Henke,
Chris Leonard, and Charles David Orick full and im-
mediate reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights or privileges previously enjoyed, and WE WILL
make them whole for any loss of earnings and benefits
suffered by them by reason of our unlawful actions,
less any net interim earnings, plus interest.
PORTA-KING BUILDING SYSTEMS, DIVI-
SION OF JAY HENGES ENTERPRISES, INC.
541PORTA-KING BUILDING SYSTEMS
1 All dates are in unless stated otherwise.
2 Jerry Fisher, Wilber Hartsell, Paul Henke, Chris Leonard, and
Charles David Orick.
3 The following employees constitute the involved unit:
All production, maintence and warehouse employees, including
leadmen, employed at the employed at the Employer’s Mont-
gomery City, Missouri facility, EXCLUDING all office clerical
and professional employees, guards, and supervisors as defined
in the Act.
An amended charge was filed on September 16 by the Union which
charge reiterated the allegation regarding the aforementioned layoffs
and also alleged that Respondent discharged four employees and
transferred another employee, all without notifying the Union or giv-
ing it an opportunity to bargain over these actions. The Union subse-
quently withdrew this charge to the extent that it refers to discharges
and a transfer.
4 The agreement contains a termination date of April 30, 1992, but
it contains a provision which indicates that the Company has notified
the Union that the Company’s production facility in Earth City will
be closed and this was expected to occur on or before the expiration
date of agreement. G.C. Exh. 4. The Union’s request, made during
negotiations, that this agreement continue in effect at Montgomery
City was denied by Respondent.
Kathy J. Talbot-Schehl, Esq., for the General Counsel.
Ralph Edwards, Esq. and Craig J. Hoefer, Esq.
(Greensfelder, Hemker & Gale P.C.), of St. Louis, Mis-
souri, for the Respondent.
Jay Bond, Esq. (Diekemper, Hammond, Schinners, Turcotte
and Larrew), of St. Louis, Missouri, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. On a charge
filed August 7, 1991,1 amended August 30, by Carpet, Lino-
leum, Hardwood and Resilient Tile Layers Local Union 1310
(the Union), a complaint was issued on August 30 alleging
that Porta-King Building Systems, Division of Jay Henges
Enterprises, Inc. (Respondent) violated Section 8(a)(1) and
(5) of the National Labor Relations Act (the Act), by laying
off five employees2 without prior notice to the Union and
without having afforded the Union an opportunity to nego-
tiate and bargain as the exclusive representative of Respond-
ent’s employees.3 Respondent denies violating the Act. As an
affirmative defense, Respondent alleges that it acted in ac-
cordance with a longstanding, established past practice with
the Union under which Respondent has been allowed to lay
off employees without prior notice to or bargaining with the
Union.
A hearing was held in St. Louis, Missouri, on December
3. On the entire record in this case, including my observation
of the demeanor of the witnesses and consideration of the
briefs filed by the General Counsel, the Respondent, and the
Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with its principal office in Earth
City, Missouri, and a manufacturing facility in Montgomery
City, has been engaged in the manufacture and nonretail sale
of portable buildings and related products. The complaint al-
leges, the Respondent admits, and I find that at all times ma-
terial, Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act, and the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
In 1990 Respondent relocated its manufacturing facility
approximately 60 miles from Earth City to Montgomery
City. For more than 20 years Respondent and the Union
were parties to successive collective-bargaining agreements
at the former facility. The last agreement was effective from
May 1 until Respondent closed its Earth City production fa-
cility in the last quarter of 1990.4
The parties stipulated, Joint Exhibit 1, that ‘‘[a]t no time
since commencing operations at its Montgomery City facil-
ity, have employees who were previously employed at Re-
spondent’s Earth City, Missouri facility, constituted more
than 25 percent of the bargaining unit workforce at the
Montgomery City facility.’’
At the outset, Respondent set its own terms and conditions
of employment at Montgomery City. In comparison to what
employees had at Earth City, the wages were lower, the holi-
days were fewer, and there were different attendance and
health insurance policies.
After a petition and election, the Union was certified on
April 8 as the exclusive collective-bargaining representative
of Respondent’s employees in the above-described unit at
Montgomery City. (G.C. Exh. 3.) Steve Shulte, Respondent’s
president, testified that Respondent did not change its terms
and conditions of employment when the Union was certified
so that they were the same as those at Earth City.
On April 12 Respondent and the Union held their first ne-
gotiating session.
During a telephone conversation on May 29, Union Busi-
ness Representative Eddie Johns mentioned to Shulte, that he
heard rumors of a layoff at Respondent’s Montgomery City
facility. Shulte stated only that there had been a downturn in
business.
On June 4 the second negotiating session was held. Re-
spondent presented a proposed contract to the Union (G.C.
Exh. 5). Unlike the last collective-bargaining agreement be-
tween Respondent and the Union at Earth City, Respondent’s
proposed contract did not contain a union-security clause,
and it contained drug testing provisions and limited union
representatives’ access to the plant. Also, under Respondent’s
proposal, pay would be lower at Montgomery City than what
the employees at Earth City received.
On June 25 Orick, who was employed by Respondent at
its Montgomery City facility, was injured and left work
early. The following day he returned to Respondent’s facility
with a doctor’s excuse and he was asked to fill out an acci-
dent report. Respondent’s plant manger, Steve Roth, told him
and gave him a notice (G.C. Exh. 2d), which indicated that
he was laid off effective June 25. Respondent also gave lay-
off notices to four other employees for June 25. See General
Counsel’s Exhibit 2. The parties stipulated that the June 25
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Shulte testified that Respondent averaged a layoff of 1 to 12 em-
ployees a year at its Earth City facility, the Union was never notified
and they were never discussed by the Union during the negotiations
for the Earth City collective-bargaining agreements. Shulte also testi-
fied that to his knowledge the Union never protested those layoffs,
and the Union never suggested ant alternatives to those layoffs, and
the Union never filed a grievance over those layoffs. The last collec-
tive-bargaining agreement for Earth City does not contain specific
language regarding a grievance procedure. But Shulte pointed out
that Respondent had a pratice of discussing personnel decisions with
the Union at its request or at the request of the employee. The Re-
spondent concedes that it occasionally, on its own, rotated schedules
or shortened the workweek as an alternative to layoffs. Shulte testi-
fied that it was his understanding that Respondent could not change
its past practices after the Union was certified and, therefore, Re-
spondent did not notify the Union about the layoffs before they oc-
curred.
6 About a week earlier Orick had been suspended and Johns had
asked Shulte to speak to Orick about his side of the story.
7 Sec. 2.01 of the Company’s originals contract proposal for the
employees at Montgomery City, the management-rights clause, vests
exclusively in the Company the right to relieve employees from duty
because of a lack of work or for other reasons. Shulte testified that
although the Union sought to change some other language in the
management-rights clause, it did not seek to change the lauguage
dealing with layoffs.
8 The General Counsel also cited Adair Standish Corp., 292 NLRB
890 fn. 1 (1989), enfd. in relevant part 912 F.2d 854 (6th Cir. 1990),
where the Board held that because of the intervention of the bar-
gaining representative, the respondent could no longer continue uni-
laterally to exercise its discretion with respect to layoffs.
layoffs were economic layoffs and that the Respondent did
not notify the Union prior to the layoffs.5 (Jt. Exh. 1.)
Shulte testified that he told Johns of Orick’s layoff and the
layoff of four other employees during a telephone conversa-
tion on June 26, and that this was the second telephone con-
versation about Orick’s 3-day disciplinary suspension.6 Johns
testified that he had no recollection of any such telephone
conversation.
On June 27 Orick informed Johns of his layoff and he
mentioned that other employees may have been laid off on
June 25.
On July 24 the Respondent and the Union held their third
negotiating session. Orick’s layoff and Respondent’s pro-
posed contract were discussed.7
In late July and early August, Leonard and Henke, respec-
tively, were recalled to their former positions.
As noted above, the Union filed a charge on August 7. It
alleged that Orick had been unlawfully laid off and it indi-
cated that ‘‘[o]n information and belief other employees had
been laid off in a similar fashion.’’
On August 14 Johns requested Respondent to provide the
Union with a list of all employees and their current employ-
ment status with Respondent.
Shulte testified that he forwarded the following letter to
Johns on August 29:
This letter is to advise you that, even though Porta-
King Building Systems intends to contest the allega-
tions raised in the above referenced unfair labor prac-
tice charge, we are still willing to meet and discuss
with you over the layoffs that occurred on June 25,
1991, as well as over any other subjects that you may
wish to address. If you want to arrange such a meeting,
please feel free to contact me.
Also Shulte testified that he never received a reply from
Johns. Johns testified that he believed that the Union did
reply with a telephone call requesting negotiations. On cross-
examination, Shulte testified that at the time of the letter all
the employees had not been recalled, Respondent did not
offer to recall all the employees and the Board had already
indicated that it was going to issue a complaint in this mat-
ter.
As noted above, the Union filed an amended charge on
August 30. It specifies the names of the five employees laid
off on June 25.
On September 11 the fourth negotiating session was held.
Respondent gave the Union the list requested on August 14.
On November 25 a fifth negotiating session was held.
B. Contentions
The General Counsel, on brief, contends that Respondent’s
failure to give notice to or bargain with the Union over the
decision and effects of the June 25 layoffs violated Section
8(a)(1) and (5) of the Act and that the past practice between
the parties, whereby the Respondent did not give notice to
the Union prior to a decision to layoff, was extinguished
when Respondent relocated its operation and the Board sub-
sequently certified the Union as the exclusive bargaining rep-
resentative of Respondent’s employees at its new location in
Montgomery City; that the Board determined in Lapeer
Foundry & Machine, 289 NLRB 952 (1988), that an eco-
nomically motivated decision to lay off employees is a man-
datory subject of bargaining and consequently obligates the
employer to give notice to and bargain with the Union over
the decision and the effects of that decision; that it is undis-
puted that no notice was given to the Union prior to the June
25 layoff; that if Shulte told Johns about the layoffs on June
26 the Union would have included this in its initial charge;
that in Amsterdam Printing & Litho Corp., 223 NLRB 370
(1976), enfd. 559 F.2d 188 (D.C. Cir. 1977), the Board de-
termined that an employer’s practices, prior to the certifi-
cation of a union as the exclusive collective-bargaining rep-
resentative of the employees, do not relieve an employer of
the obligation to consult with the certified union about
changes in wages, hours, and other terms and conditions of
employment;8 that Respondent’s past practices at its former
location do not relieve it of giving notice to and bargaining
with the newly certified representative of its employees at its
new facility, especially since Respondent from the outset, re-
fused to apply the old contract at the new location, other past
practices which might be beneficial to employees were not
applied, and no more than 25 percent of Respondent’s new
work force was comprised of employees from the old Earth
City facility; that it is well established that where employees
from the old facility do not constitute a substantial percent-
age—approximately 40 percent or more—the employer is not
obligated to recognize the old employees’ bargaining rep-
resentative; that Respondent wants to have its cake and eat
it too in that while Respondent asserts the affirmative de-
fense of past practice as it relates to the obligation to give
notice to and bargain with the Union as to Respondent’s de-
cision to lay off employees on June 25, Respondent did not
reinstate the same wages, number of holidays, health insur-
543PORTA-KING BUILDING SYSTEMS
9 The General Counsel has moved to strike a portion of the Re-
spondent’s brief arguing that there is no record support for the posi-
tion Respondent has taken. It is noted that the parties stipulated that
the Union withdrew a portion of the last charge it filed herein. On
this record, one could only speculate as to why the Union withdrew
a portion of that charge. That is what Respondent is doing in this
portion of its brief. As such, that portion of its brief is nothing more
than argument. Accordingly, the General Counsel’s motion to strike
is denied.
ance, or attendance policies as it had at Earth City; that in
view of all that occurred, the past relationship and past prac-
tices between Respondent and the Union were extinguished;
that the Union’s certification in April, over 1 year after oper-
ations at the new facility began, signifies the beginning of
a new collective-bargaining relationship with all the obliga-
tions and responsibilities attached to any parties embarking
on a new relationship; that Respondent’s waiver defense is
meritless in that Respondent’s obligation was to give notice
prior to the decision to lay off, not when the decision is a
fait accompli; that Johns credibly testified that he did not re-
ceive notice from Shulte on June 26 about the layoffs; and
that the Union did not waive its right to bargain, but rather
took steps to bargain more effectively by sending its August
14 request.
The Charging Party, on brief, argues that the Company felt
free to and did establish terms and conditions of employment
at Montgomery City that were significantly inferior to those
at Earth City; that the Company has done everything in its
power to eradicate any perceived or actual connection be-
tween the Montgomery City and the Earth City facilities; that
Respondent should not be allowed to fabricate a link in the
operations sufficient to establish a past practice connection;
that Respondent’s waiver has no merit; that an offer to bar-
gain about layoffs 2 months after the layoffs were effective
without a concomitant offer of reinstatement is wholly inad-
equate; that even if Shulte told Johns of the layoffs on June
26, the alleged notice would have been late; and that since
the Respondent and the Union did not even discuss the Com-
pany’s initial contract proposal until after the layoffs, the se-
quence of events cannot satisfy the ‘‘meaningful negotia-
tions’’ requirement of Lapeer, supra.
Respondent, on brief, contends that it was under no obli-
gation to bargain with the Union over the June 25 layoffs
since these layoffs were conducted in accordance with a past
practice whereby the Company had laid off employees with-
out notice to or bargaining with the Union; that in Aquaslide
‘N’ Dive Corp., 281 NLRB 219 (1986), the Board held that
an employer did not violate Section 8(a)(1) and (5) of the
Act even though the employer had delayed in notifying the
union of employee layoffs since the layoffs had been in ac-
cordance with the employer’s past practice; that General
Counsel’s attempt to characterize the bargaining relationship
between Porta-King and Local 1310 as being a new one de-
void of any past practice ignores the realities of this case;
that this case is distinguishable from cases where an em-
ployer has claimed the existence of an established past prac-
tice in the absence of any prior union relationship; that since
the Union failed to act after being informed of the layoffs
and Respondent’s willingness to bargain over these layoffs
any relief available in this case should be limited; and that
if backpay liability exists in this case, that liability could not
continue beyond 5 days after the Union received the Com-
pany’s August 29 letter.9
Analysis
What this case is really about is the involved employees.
The Union is there collective-bargaining representative. This
is a new unit. What the Union did at some other plant at an-
other time as a representative of employees in an altogether
different unit obviously cannot be binding on this new unit
and the labor organization these employees have chosen to
represent them. If Respondent can lay off these employees
without giving prior notice to the Union and affording it an
opportunity to bargain, it would send a dramatic signal to the
employees of the Union’s impotence. Respondent knows this.
Contrary to the assertion of Respondent, on brief, there was
no prior union relationship at Montgomery. Respondent saw
to that. Consequently, contrary to the assertion of Respond-
ent, on brief, this case is not distinguishable from cases
where an employer has claimed the existence of an estab-
lished past practice in the absence of any prior union rela-
tionship. As the General Counsel argues, Respondent wants
to have its cake and eat it too. Respondent began anew at
the Montgomery facility with respect to the terms and condi-
tions of employment. But in one regard, when it is to Re-
spondent’s advantage, it does not want to begin anew but
rather it wants to adopt the old approach. Respondent itself
wiped the slate clean when it moved to Montgomery.
A decision to lay off employees for economic reasons is
a mandatory subject of bargaining. Consequently, an em-
ployer must provide notice to and bargain with the Uuion
concerning the decision to lay off bargaining unit employees.
Lapeer Foundry & Machine, 289 NLRB 952. As concluded
by the Board in Amsterdam Printing & Litho Corp., supra,
an employer’s practices, prior to the certification of a union
as the exclusive collective-bargaining representative of the
employees, do not relieve an employer of the obligation to
consult with the certified union about changes in terms and
conditions of employment. As noted above, and for the rea-
sons given above, I do not agree with Respondent that the
instant case is distinguishable because the Union once rep-
resented a unit at another of Respondent’s facilities.
Shulte’s testimony that he informed Johns of the layoffs
on June 26 is not credited. Shulte does not deny that only
Orick’s layoff, as here pertinent, was discussed at the July
24 negotiating session. If, at that point in time, Johns knew
who the other employees were, it would follow that there sit-
uation would also have been discussed and the discussion
would not have been limited to Orick. And when the Union
filed the first charge herein on August 7, it would not have
been necessary to state ‘‘on information and belief other em-
ployees have been laid off’’ if in fact Johns already knew
who the employees were. Respondent did not follow a rea-
sonable and expedient course in notifying the Union of the
layoffs. Consequently, Aquaslide ‘N’ Dive Corp., supra, is
distinguishable for this reason and also because here there is
not the compelling economic circumstance which existed in
that case, namely respondent there had its assets frozen when
it received a notice of bankruptcy.
Respondent’s belated expression of a willingness to meet
and discuss the layoffs months after the layoffs and after the
Board had indicated that it was going to issue a complaint
herein, without first attempting to recall or even offering to
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
recall all of the employees laid off, clearly does not satisfy
Respondent’s bargaining obligation. Consequently, backpay
was not tolled by the August 29 letter.
CONCLUSIONS OF LAW
1. Porta-King Building Systems, Division of Jay Henges
Enterprises, Inc. is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees constitute a unit appropriate
for the purposes of collective-bargaining within the meaning
of Section 9(b) of the Act:
All production, maintenance and warehouse employees,
including leadmen, employed at the Employer’s Mont-
gomery City, Missouri facility, EXCLUDING all office
clerical and professional employees, guards, and super-
visors as defined in the Act.
4. By unilaterally laying off five employees on June 25,
1991, without notice to the Union or providing the Union
with an opportunity to bargain about such changes, Respond-
ent has engaged in unfair labor practices within the meaning
of Section 8(a)(5) of the Act.
5. By the aforesaid unilateral activity, Respondent has
interfered with, restrained, and coerced and is interfering
with, restraining, and coercing employees in the exercise of
the rights guaranteed to them in Section 7 of the Act, and
thereby has engaged in and is engaging in an unfair labor
practice within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated the Act by failing
to bargain over its decision to lay off employees, Respondent
will be ordered to bargain with the Union concerning the lay-
off decision and to reinstate the laid-off employees with
backpay from the date of the layoffs until the date the em-
ployees are reinstated to their same or substantially equiva-
lent positions or have secured equivalent employment else-
where. Backpay shall be based on the earnings that the em-
ployees normally would have received during the applicable
period, less any net interim earnings, and shall be computed
in the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
Having found that Respondent failed to bargain over the
June 25, 1991 layoffs in violation of the Act, Respondent
shall be ordered to reinstate Jerry Fisher, Wilber Hartsell,
and Charles David Orick and award them backpay as speci-
fied above. The Respondent shall award backpay to Paul
Henke and Chris Leonard as specified above.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, Porta-King Building Systems, Division of
Jay Henges Enterprises, Inc., Earth City, Missouri, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally laying off employees without providing the
Union with notice and an opportunity to bargain about the
decision to lay off employees and the effects of that decision.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union concerning the de-
cision to layoff employees on June 25, 1991.
(b) Reinstate and make whole those employees laid off on
June 25, 1991, for any loss of pay or other employment ben-
efits suffered as a result of its unlawful conduct in the man-
ner set forth in the remedy section of this decision.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Montgomery City, Missouri facility copies
of the attached notice marked ‘‘Appendix.’’11 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 14, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.