Skyline Distributors

National Labor Relations Board - Board Decisions

Oct 16, 1995

319 N.L.R.B. 270 (N.L.R.B. 1995)

270
319 NLRB No. 44
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 conclusion that a separate maintenance
group is an appropriate unit, we emphasize that, in this case, there
is no evidence of interchange between the maintenance and sanita-
tion employees, there have been no recent permanent transfers be-
tween the groups, sanitation employees do not naturally progress into
the maintenance group, and the maintenance group and the sanitation
group each has its own working foreman. We also considered that
the maintenance employees: are more highly skilled; receive higher
salaries; are provided with uniforms, tool kits, and work benches;
and do not regularly work with the sanitation employees.
3 A bargaining order issued under these circumstances is, accord-
ingly, to be distinguished from a bargaining order based on unfair
labor practices that are so outrageous and pervasive that their effects
cannot be eliminated by the application of traditional remedies, with
the result that a fair and reliable election cannot be held. NLRB v.
Gissel Packing Co., supra at 613–614. Accordingly, it is of no mo-
ment that, as the Respondent contends, it may not have committed
‘‘hallmark’’ violations such as mass terminations of unit employees.
4 In support of this finding, we additionally rely on Skaggs Drug
Centers, 197 NLRB 1240 (1972), enfd. 84 LRRM 2384 (9th Cir.
1973).
Skyline Distributors, a Division of Acme Markets
and District Lodge No. 98, International Asso-
ciation of Machinists & Aerospace Workers,
AFL–CIO. Case 4–CA–20826
October 16, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On August 15, 1994, Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
Contrary to the Respondent’s exceptions, we agree
with the judge that a bargaining order is necessary to
effectuate the purposes of the Act under the cir-
cumstances present in this case. As the Supreme Court
held in NLRB v. Gissel Packing Co., 395 U.S. 575
(1969), ‘‘[i]f the Board finds that the possibility of
erasing the effects of past [unfair labor] practices and
ensuring a fair election (or a fair rerun) by the use of
traditional remedies, though present, is slight and that
employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining
order, then such an order should issue.’’3 For the rea-
sons stated by the judge, we agree that the effects of
the Respondent’s unfair labor practices continue to
have an enduring impact on the unit that is unlikely to
be dissipated by application of the Board’s traditional
remedies.4
In this regard, we find no merit to the Respondent’s
contention that a bargaining order is unwarranted in
light of: the absence of prior unfair labor practices
committed by the Respondent, the passage of time
since the Respondent’s unlawful conduct, and turnover
in management. Thus, neither the absence of any evi-
dence of prior unfair labor practices nor its assertedly
harmonious relations with unions at its other facilities
detracts from the fact that the unfair labor practices
committed in this case unlawfully undermined the
Union’s majority support in the unit. Similarly, a bar-
gaining order does not become inappropriate merely
because of the passage of time since, as here, the time
elapsed is no more than the normal course of litigation.
America’s Best Quality Coatings Corp. v. NLRB, 44
F.3d 516, 522 (7th Cir.), cert. denied 115 S.Ct. 2609
(1995). Finally, we reject the Respondent’s contention
that the departure of one of the management officials
involved in the unfair labor practices—Vice President
of Labor Relations Bailey—obviates the need for a
bargaining order. It is well settled that the propriety of
a bargaining order depends on the circumstances exist-
ing at the time the unfair labor practices were commit-
ted and is not affected by subsequent events. See Mas-
sachusetts Coastal Seafoods, 293 NLRB 496, 500 fn.
10 (1989). Even if we were to consider the impact of
Bailey’s departure, we find that a bargaining order
would nevertheless remain necessary in light of the
small number of employees in the unit and the con-
tinuing presence of Vice President DiBernardino, who
was principally involved in the unfair labor practices.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Skyline Distributors, a Di-
vision of Acme Markets, Lancaster, Pennsylvania, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
VerDate 12-JAN-99 10:40 Jul 29, 1999 Jkt 183525 PO 00000 Frm 00001 Fmt 0610 Sfmt 0610 D:\NLRB\319\31944 apps04 PsN: apps04
271SKYLINE DISTRIBUTORS
1 All events took place in 1992 unless otherwise indicated.
2 In his posttrial brief, counsel for the General Counsel listed cor-
rections to the transcript of the instant hearing. In the absence of ob-
jections, thereto, the transcript shall be amended as proposed in G.C.
Br. 3, fn. 2.
3 Documents offered into evidence by General Counsel are referred
to as G.C. Exh. followed by the appropriate exhibit number; docu-
ments offered by the Respondent are cited as R. Exh., and references
to the transcript are designated as Tr., followed by the relevant page
number.
4 A bold red stripe heading each authorization card bore this leg-
end, ‘‘YES, I WANT THE IAM.’’ The text read: ‘‘I, the under-
signed . . . hereby authorize the International Association of Ma-
chinists and Aerospace Workers . . . to act as my collective bargain-
ing agent with the company for wages, hours and working condi-
tions.’’ (G.C. Exh. 3(a)–(f).)
Timothy J. Brown, Esq., Lisa Y. Henderson, Esq., for the
General Counsel.
Robert J. Bray, Christopher J. Murphy, and Amy B. Smith,
Esqs., for the Respondent.
William Rudis, Esq., for the Charging Party.
DECISION
PROCEDURAL STATEMENT
ARLINE PACHT, Administrative Law Judge. Pursuant to a
charge filed on June 22, 1992,1 by District Lodge No. 98,
International Association of Machinists & Aerospace Work-
ers, AFL–CIO (the Charging Party or the Union), a com-
plaint issued on March 29, 1993, alleging that the Respond-
ent, Skyline Distributors, a Division of Acme Markets (the
Respondent, the Company, or Skyline), violated Section
8(a)(1) of the National Labor Relations Act, by soliciting
employee grievances and implicitly promising and then
granting them benefits to undermine their support for the
Union. The complaint further alleges that a bargaining order
is required to remedy the effects of Respondent’s serious and
substantial unfair labor practices. The Respondent filed a
timely answer denying that it had violated the Act and con-
testing the appropriateness of a unit limited to maintenance
employees.
This matter was tried on December 6 and 7, 1993, in
Philadelphia, Pennsylvania, at which time the parties had the
opportunity to present, examine, and cross-examine wit-
nesses, to introduce real evidence and argue orally.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by counsel for the General Counsel and the Respondent,
I make the following 3
FINDINGS OF FACT
I. JURISDICTION
Skyline Distributors, a Division of Acme Markets, Inc., is
a corporation with an office and place of business in Lan-
caster, Pennsylvania (the facility), has been engaged in the
warehousing of supermarket goods. During the past year, in
conducting its business operations, Respondent purchased
and received materials valued in excess of $50,000 directly
from points outside the Commonwealth of Pennsylvania. The
Respondent admits and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ISSUES
As defined by the pleadings in this case, the principal
issues to be resolved are:
1. Whether Respondent violated Section 8(a)(1) of the Act
by soliciting and promising to remedy employee complaints,
and by granting them benefits.
2. Whether a unit that includes only full-time and regular
part-time maintenance employees, but excludes sanitation
workers, is appropriate.
3. Whether a majority of the employees in that unit, if
found appropriate, designated the Union as their exclusive
bargaining agent.
4. Whether Respondent’s acts are so serious and substan-
tial as to warrant imposition of a bargaining Order.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Employees Seek Union Representation
Local 98 Business Representative Clark Ruppert testified
that on or about May 1 he received a telephone call from
Norm Ruby, a maintenance employee at Skyline, who told
him that his coworkers were dissatisfied with some of their
working conditions and wanted a union. Subsequently, Ruby
arranged a meeting between Ruppert and six of the seven
maintenance employees on May 9.
At the meeting, Ruppert asked the men about their job
concerns and why they wanted a union. In response, they
complained about a wage freeze, an inequitable pay scale
under which employees performing much the same work and
having the same seniority received different wages, increased
copayments for health insurance, changed vacation schedul-
ing, rules, having to drive their own vehicles on the job with-
out compensation, and a reassignments of shift schedules for
two employees.
Ruppert further informed the six employees that the Local
could only negotiate on their behalf if the employer recog-
nized the Union as their collective-bargaining representative.
He then distributed authorization cards and urged the men to
read along, while he read the text aloud, explaining that
signed cards would provide proof that they wanted union
representation. At the same time, he made it clear that they
did not automatically become members of the Union by sign-
ing the cards. He then outlined the three methods by which
a union may gain recognition: that is, through voluntary rec-
ognition, independent verification of a card-based majority,
or a secret-ballot election under the auspices of the National
Labor Relations Board. All six men signed and dated the
cards before returning them to the union organizer.4 Ruppert
testified without controversion that the employees indicated
their interest in expediting the process. Accordingly, he ob-
tained their consent to present the signed cards to the Re-
spondent in seeking voluntary recognition. Two of the em-
ployees present, Norman Ruby and Scott Ruhl, volunteered
to accompany him.
VerDate 12-JAN-99 10:40 Jul 29, 1999 Jkt 183525 PO 00000 Frm 00002 Fmt 0610 Sfmt 0610 D:\NLRB\319\31944 apps04 PsN: apps04
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Ruppert’s memo, which was verified by Ruhl and Ruby, to-
gether with Armold’s admission in his May 13 memo, establishes
that he did examine each card, but by the time of the instant trial,
apparently concluded that he should not have done so. Whether his
scrutiny of the cards was tantamount to de facto recognition of the
Union was not an issue in this case. Rather, it is relevant only to
the extent that it reveals Armold’s readiness to mold his testimony
to the Respondent’s interests. Similarly, Ruhl’s reluctance to admit
at the hearing that he endorsed Ruppert’s memo reflects his desire
to prove his allegiance to Skyline.
Mike Sullivan, one of six maintenance employees present
at the union organizing meeting, confirmed much of
Ruppert’s testimony. Based on union membership at a pre-
vious job, and on Ruppert’s comments at the May 9 meeting,
he understood that signing the authorization card did not
commit him to union membership, but would demonstrate
‘‘that we were interested in the Union and that we asked the
company for recognition was the whole purpose.’’ (Tr. 175.)
Scott Ruhl was equivocal in testifying about his understand-
ing of the card’s purpose, alleging that he thought it was
only to express interest in the Union, but did not necessarily
entitle Ruppert to negotiate a contract on the employees’ be-
half. Ruhl apparently forgot that he encouraged Ruppert to
hasten the recognition and bargaining process by disclosing
the signed authorization cards to the Respondent.
On May 12, Ruppert, Ruby, and Ruhl met with Skyline
Plant Manager Ralph Armold. Ruppert testified that he hand-
ed an envelope containing the authorization cards and a rec-
ognition agreement to Armold, advising him that the mainte-
nance employees had authorized the IAM to represent them.
After Armold examined each card, Ruppert asked him to
sign the recognition agreement. Armold declined to do so,
advising Ruppert to see Bill Bailey, Respondent’s vice presi-
dent of labor relations, instead. As soon as the meeting
ended, Ruppert drafted a brief statement summarizing what
had just occurred, including the fact that Armold had in-
spected the cards. Ruby and Ruhl both signed the statement,
but Ruhl testified he did so without noting what Ruppert had
written.
Armold denied that he examined each card, maintaining
that he merely glanced at one or two before returning them
to Ruppert. In a May 13 memo to Vice President for Labor
Relations Bailey, however, Armold wrote that while request-
ing recognition, Ruppert showed him six signed cards.5
As Armold suggested, Ruppert telephoned Bailey and re-
quested recognition. Bailey replied that Skyline did not grant
voluntary recognition, whereupon Ruppert asked him for a
letter to that effect.
B. Respondent’s May 13 Meeting with
Maintenance Men
One day after the Union sought recognition, Bill DiBernar-
dino, Respondent’s vice president of distribution services,
summoned all seven of the maintenance employees to the
first of two unprecedented meetings. DiBernardino testified
that the meeting was not a reaction to the Union’s appear-
ance on the scene; rather, he alleged that the precipitating
events actually began months before Respondent was aware
of the Union’s presence when the supervisor of the mainte-
nance and sanitation department (MSD) at Skyline, Ron
Krystyniak, began to register complaints on behalf of his em-
ployees.
Thus, DiBernardino stated that during one of his regular
visits to the facility in late December 1991, or early January,
Krystyniak advised him that the MSD employees’ pay scale
created inequitable disparities in their rates of pay and need-
ed to be restructured. DiBernardino agreed that the matter
should be rectified and promised to look into it.
In the latter part of February, Krystyniak raised another
problem with DiBernardino; that is, whether a wage freeze
announced earlier in the month applied to the workers under
his supervision. DiBernardino responded that he did not be-
lieve the freeze was intended to cover hourly paid employees
and promised to investigate this matter as well.
In fact, at a regular monthly meeting in December 1991,
Respondent’s executive committee, composed of the Compa-
ny’s most senior executives, including DiBernardino, decided
that in order to remain competitive, they would propose a
wage freeze during forthcoming collective-bargaining nego-
tiations with several unions representing certain retail em-
ployees. At the same time, the executive committee reasoned
that management level employees also should accept a wage
freeze to counteract any union arguments of disparate treat-
ment. On February 17, a memo issued over the signature of
Henry Hoffman, Respondent’s vice president for human re-
sources and a member of the executive committee, which an-
nounced that a wage freeze would be in effect throughout
1992 covering not only management officials but ‘‘All Acme
Weekly Employees.’’
DiBernardino testified that he later advised Krystyniak that
he consulted an administrator in Respondent’s salary admin-
istration division to determine whether the wage freeze was
properly imposed on the MSD employees. However, he re-
ceived no response. Then, in early May, Krystyniak queried
him again about the application of the wage freeze to the
MSD employees. DiBernardino said that this time, he tele-
phoned Hoffman himself to urge that he clarify the matter,
and on May 11, Hoffman responded to his request with news
that nonsalaried employees would be exempted from the
freeze. DiBernardino claimed that he recalled the exact date
and time of Hoffman’s call because he felt especially proud
that ‘‘a lot of hard work paid off here. We were rather tena-
cious. We wouldn’t let this thing die. We finally got this
. . . resolved.’’ (Tr. 324–325.)
Labor Relations Vice President Bailey offered a different
account of how and when the wage freeze problem was re-
solved. He testified that soon after the freeze was announced
in February, complaints from hourly paid workers about it
quickly came to management’s attention. Facing increasing
discontent, Respondent’s president met with the executive
committee, including DiBernardino, sometime in April, and
decided that the wage freeze policy should apply to manage-
ment, but not to unrepresented, hourly paid workers. By
memo dated April 30, the salary administration division was
advised that ‘‘Non-union Clerical and Maintenance Wage
employees . . . will not be subject to the 1992 management
wage freeze.’’ (R. Exh. 2.)
DiBernardino did not refer to the April executive commit-
tee meeting in his testimony. Instead, he stated that after
speaking with Hoffman late in the day, he telephoned
Armold the next day, May 12, to apprise him of the good
news. At the same time, he informed him that the Company
was developing a new pay scale system for the MSD and
VerDate 12-JAN-99 10:40 Jul 29, 1999 Jkt 183525 PO 00000 Frm 00003 Fmt 0610 Sfmt 0610 D:\NLRB\319\31944 apps04 PsN: apps04
273SKYLINE DISTRIBUTORS
6 Except for a $1 raise received after completing his probationary
period, Sullivan’s next largest wage increase was 60 cents an hour.
With the exception of maintenance employee Auker who received a
35-cent-per-hour pay raise when the new scale was implemented, the
other five men received inreases ranging from $1.60 to $2.10 per
hour. Respondent’s total yearly cost for these wage hikes was
$18,824.
that he would visit the Skyline facility at some future time
to explain these developments to the affected employees.
Later that same day, Armold telephoned DiBernardino to
report that Union Business Agent Ruppert and two mainte-
nance workers had come to his office to demand recognition.
Uncertain what effect this unexpected event might have on
his intent to inform the maintenance employees about their
exemption from the wage freeze and prospect of a new pay
scale, DiBernardino consulted Labor Relations Vice President
Bailey who advised him that he could speak with the em-
ployees as long as he limited his remarks to matters that pre-
dated the Union’s appearance.
Accordingly, the next day, May 13, DiBernardino and Bai-
ley drove from their offices at Malvern, Pennsylvania, to the
Skyline facility, some 45 miles away, to meet with the main-
tenance employees. Armold and Maintenance and Sanitation
Supervisor Ron Krystyniak also were present. It was the first
and only occasion that DiBernardino met with the mainte-
nance crew to discuss work-related problems.
DiBernardino testified that pursuant to Bailey’s advice, he
confined himself to those matters that management had ad-
dressed prior to the Union’s advent; that is, increased health
insurance premiums, the misapplication of the wage freeze to
hourly paid employees, and the development of a new wage
scale. With respect to payments for their health plan cov-
erage, DiBernardino, who knew since February of the em-
ployees’ dismay over the rising cost of health plan contribu-
tions, told the men that nothing could be done and that in-
creased premiums were affecting everyone in the Company.
He offered, however, to bring Respondent’s benefits adminis-
trator to the warehouse to explain the various health plan op-
tions to them.
DiBernardino said he next turned to the wage freeze, ex-
plaining that it was supposed apply to upper levels of man-
agement, and had been imposed inadvertently on the MSD
and other unrepresented, hourly paid employees. He then in-
formed the employees that the salary administration division
was preparing a progressive wage scale and assured them it
would be implemented whether or not the employees sup-
ported the Union. He also promised to return and explain the
new plan as soon as it was ready.
DiBernardino further testified that in keeping with his nor-
mal practice, he followed his comments on the health insur-
ance, wage freeze, and pay scale issues, by asking the em-
ployees if they had any questions. He recalled that one em-
ployee complained about a recently changed vacation-sched-
uling policy; DiBernardino responded by telling the employ-
ees his only concern was to make sure that the work was
performed and to referred the matter to Armold. Before the
day ended, management announced that the decision to re-
vise the vacation policy would be rescinded and the status
quo restored. Another maintenance worker asked of he could
claim reimbursement for mileage when he used his own ve-
hicle to transfer supplies between two of Respondent’s ware-
houses. DiBernardino promptly assured him that established
company policy permitted employees to claim reimbursement
for such expenditures. Sullivan also complained about his
work schedule; telling DiBernardino that after he and Ruby
obtained Krystiniak’s consent to switch their shifts, Armold
vetoed the exchange. DiBernardino said he again referred
this matter to Skyline management to handle in the normal
course. Within the next few days, Armold reversed himself
and permitted the men to exchange shift schedules.
Ruhl and Sullivan corroborated one another in describing
the structure of the May 12 meeting and the representations
made, but differed with DiBernardino on significant point[s].
Both men recalled that DiBernardino opened the meeting by
stating that he understood they had a number of job-related
problems, and then invited them to share those problems
with him. Ruhl also recalled that DiBernardino assured the
men he had no intent to interfere with their union activity,
pointing out that he had been a union member himself.
Ruhl testified that in response to DiBernardino’s invitation,
he complained about the increase in employee contributions
to the Company’s health plan and the wage freeze that had
prevented him from receiving a pay increase on his employ-
ment anniversary date. He identified another employee who
raised the problem of inequitable wage rate disparities among
the members of the maintenance crew. Ruhl and Sullivan
also stated that complaints were presented about a change in
vacation-scheduling policy, a refusal to permit employees to
exchange shifts, and reimbursement for money spent in driv-
ing one’s own vehicle on company business. In other words,
the employees aired the same complaints that they had de-
scribed to Ruppert. Ruhl noted that he and other maintenance
employees had complained to Krystyniak about the pay scale
for a number of months and received a stock answer that Di-
Bernardino was working on the problem.
After meeting with the maintenance crew, DeBernardino
held a similar session with Skyline’s sanitation workers.
Other groups of employees in the four facilities under his au-
thority, however, learned from their supervisors that the
wage freeze had been revoked.
C. The Second May Meeting
Management held a second meeting with the seven main-
tenance employees a week after the first. At this time, Di-
Bernardino introduced the new wage scale, producing a chart
that showed that hourly rates would range from $8.50 to
$12.50 for the maintenance staff. In accordance with this
scale, which was implemented in early July, Sullivan realized
an increase of $1.40 an hour, his largest single raise since
he began working for Respondent.6
DiBernardino testified that in the interval between the first
and second May meetings, salary administration personnel
telephoned him at least three or four times to test ideas as
they developed a new wage progression plan. True to his
word, when the project was completed, DiBernardino, ac-
companied by Bailey, returned to Skyline to introduce the
new plan to the maintenance employees. Since that time, Di-
Bernardino has visited Skyline on numerous occasions, but
has not met again with the maintenance employees. In fact,
the May meetings were the only occasions when anyone
could recall having two or more senior members of manage-
ment meet separately with the maintenance employees. Even
VerDate 12-JAN-99 10:40 Jul 29, 1999 Jkt 183525 PO 00000 Frm 00004 Fmt 0610 Sfmt 0610 D:\NLRB\319\31944 apps04 PsN: apps04
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Ruhl previously testified that his message to Ruppert was ‘‘No-
body wants to be bothered with it.’’ (Tr. 292.) Apparently, the ‘‘it’’
was a reference to the Union.
8 Sanitation employees were not assigned janitorial work that Re-
spondent subcontacted out.
Krystyniak had not attended a meeting like this during his
5-year tenure at Skyline.
D. The Maintenance Workers Reject the Union
On the evening of May 13, Union Agent Ruppert tele-
phoned Ruby and learned of the special meeting that Re-
spondent’s officials held with the maintenance staff earlier
that day. At the end of their phone call, Ruppert suggested
another meeting with the employees. Eventually, one was
scheduled for May 30. Shortly before that date, however,
Ruhl telephoned Ruppert to cancel the meeting, informing
him that the employees no longer wanted union representa-
tion because Respondent’s senior executives had met with
them a second time and promised to resolve most of their
problems. Following this call, Ruppert telephoned employees
Ruby and Michael Sullivan, both of whom had responses
similar to Ruhl’s. In the following months, Ruppert tried to
contact various employees on several occasions without suc-
cess.
After management promised the maintenance workers a
new pay scale, which conferred substantial raises, exempted
them from the wage freeze, and reversed several decisions
affecting vacation and shift scheduling in response to em-
ployees’ requests, the maintenance workers rapidly lost inter-
est in the Union. Sullivan acknowledged that after the second
meeting with management, he was convinced that DiBernar-
dino was a ‘‘straight shooter,’’ and decided he no longer
needed union representation. Ruhl claimed that he never
wholly embraced the Union; that he had signed the author-
ization card simply to register interest in the Union; when
Ruppert began to pester him with incessant phone calls, he
became completely disenchanted. Apparently, Ruhl had a
low tolerance for pests, for by his own account, he spoke
with Ruppert only once on the phone. After that, Ruhl con-
ceded that Ruppert tried to contact him only one or two more
times. Ruhl ended these even these few overtures by leaving
a curt message with Ruppert’s secretary: ‘‘Nobody wants to
be bothered with you.’’ (Tr. 298.)7 This was the last commu-
nication Ruppert received from any of the maintenance men.
E. The Appropriate Unit Question
Six of seven maintenance men signed authorization cards,
thereby providing the basis for the Union’s demand for rec-
ognition. The Respondent challenges a separate unit for
maintenance workers, contending that they are wholly inte-
grated into a single department with sanitation employees.
The description set forth below of the duties and working
conditions of the employees in the MSD synthesizes the tes-
timony of three witnesses—maintenance employees Ruhl and
Sullivan, and their supervisor, Krystyniak.
At Skyline, maintenance and sanitation employees were
administratively assigned to the same department under one
supervisor. At Skyline, however, each group had its own
foreman, who after receiving assignments from Krystyiniak,
distributed them to the members of his crew.
In some respects, maintenance and sanitation workers
shared similar working conditions. Thus, workers from each
both groups were assigned to each of three shifts; although
on the early morning shift, the sanitation employees arrived
one-half hour earlier than the maintenance men. Both sets of
employees log in on the same timeclock; one of three in the
facility eat in the lunchroom and use the locker room avail-
able to all warehouse employees. Both maintenance and sani-
tation employees are eligible for the same benefits offered to
other unrepresented workers and are paid in accordance with
wage scales that are similar in concept, but not in actual
earnings. Under the progressive rates implemented in July,
the maintenance men started at $8.50 with a ceiling of
$12.50 an hour, whereas the sanitation pay scale began, as
it previously did, at $6 an hour, with a maximum of $8.40.
The maintenance and sanitation foremen earned $13 and $11
per hour respectively.
Occasionally, maintenance and sanitation workers worked
together on special projects. For example, a maintenance and
sanitation employee might complete a painting job, clean up
a major spill if a pipe burst, or biannually clean hydraulic
equipment below the shipping and receiving docks. All MSD
employees changed lightbulbs now and then. Maintenance
employees also did some cleaning, but it usually was limited
to their own work areas. Ruhl and Sullivan, the only MSD
employees called as witnesses, testified that they rarely
worked with sanitation employees. For Sullivan, it was no
more than one percent of the time. I credit the testimony of
these two employees about the nature of their assignments.
Both men, Ruhl more so than Sullivan, tempered their testi-
mony whenever possible in an effort to align themselves
with their employer. Yet, in spite of themselves, they could
not refrain from describing significant differences between
their own work and that of the sanitation employees.
Not only did they perform different tasks and rarely work
with sanitation personnel, the maintenance employees were
skilled mechanics and electricians who performed fairly com-
plicated and technical work, while the sanitation workers
were unskilled laborers engaged primarily in cleaning
chores.8 Maintenance workers rebuilt equipment, repaired
truck motors, conveyers, and gear boxes. One of the six who
had particular expertise in electrical work was assigned to
such tasks as laying conduit and changing ballast. Some
maintenance men were adroit plumbers, while Ruhl received
out-of-state training twice and special on-the-job training to
maintain nine turret trucks, large, sophisticated, and costly
machines that plucked merchandise from the warehouse
shelves. Servicing these vehicles involved knowing how to
program a computer that guided the vehicle electronically.
These skilled workers also shared responsibility for preventa-
tive maintenance on trucks and machinery.
From time to time, a sanitation worker was assigned to
work with a maintenance employee who was engaged in pre-
ventative maintenance, but typically, his role was that of a
helper. For example, a sanitation employee might assist a
maintenance worker move a piece of heavy equipment. Sig-
nificantly, Ruhl testified that no sanitation employee has ever
assisted him with electrical or plumbing work. He trained
fellow maintenance employee Ruby to work on the turret
trucks, but never trained a sanitation employee for any pur-
pose. In fact, other than being certain that none of the sanita-
VerDate 12-JAN-99 10:40 Jul 29, 1999 Jkt 183525 PO 00000 Frm 00005 Fmt 0610 Sfmt 0610 D:\NLRB\319\31944 apps04 PsN: apps04
275SKYLINE DISTRIBUTORS
9 At one point, Krystyniak suggested that a sanitation employee
might use the lathe, but later retracted this statement.
tion employees could perform his job, he was unable to de-
scribe what they did do.
The fact that maintenance employees were responsible for
tasks requiring skill and experience explains why they earned
more than the sanitation workers. It also explains why no
sanitation worker substituted for a maintenance employee
during his absence, and why the Respondent furnished the
maintenance but not the sanitation employees with tool kits.
In fact, some of those in maintenance supplemented the
Company’s tools with their own. Ruhl for one, testified that
he invested more than $4000 in his own equipment. Each
maintenance employee had an assigned place at a workbench
in the maintenance shop where he spent approximately 50
percent of his time on a typical day. The balance of the shift
was devoted to assignments throughout the warehouse. The
Respondent supplied and laundered uniforms for the mainte-
nance staff because they often worked with greasy or oily
machines.
In contrast, the sanitation employees, who were in the
maintenance shop perhaps 10 percent of the day; were not
assigned to workbenches, did not supply their own tools, and
were not furnished uniforms. They were known to borrow
tools from the maintenance workers, but did not use the
more sophisticated equipment such as the lathe, auger, drill
press, grinder, and band saws.9 The bulk of their day was
spent in general cleaning assignments throughout the ware-
house. One of the nine sanitation men operated a baler—a
machine that bales scrap cardboard from the warehouse pro-
duction lines; another used a scrubber. Both pieces were
serviced and repaired by their operators in the event of a
breakdown and stored just outside the maintenance shop. The
rest of the sanitation crew were responsible for maintaining
the brooms, shovels, and mops that they used, but this en-
tailed little more than changing sponges in squeegee mops.
This lighter equipment, together with cleaning supplies, was
stored in a small cubicle in the maintenance room. Because
the work of the sanitation employees required far less skill
than that needed to perform most maintenance work, they
had a lower pay rate.
Krystyniak maintained that when he became the MSD su-
pervisor, he revised assignments in order to integrate the two
groups of employees. Yet, while claiming that several sanita-
tion employees were competent enough to transfer to the
maintenance crew, he conceded that only one man ever made
that leap, and that was in 1987 before he arrived at Skyline.
Sullivan added that no one in maintenance has transferred to
sanitation, since such a move would be considered a demo-
tion. Indeed, to assign employees who earned from $8.40 to
$12.50 an hour to the same tasks as those who received from
$6 and $8.50, would have been a senseless misuse of the Re-
spondent’s funds.
IV. DISCUSSION AND CONCLUDING FINDINGS
A. Respondent Unlawfully Solicited and Promised to
Remedy Employee Complaints
This is not a case in which an employer is accused of tak-
ing adverse action against employees to vitiate their adher-
ence to a union. The complaint alleges no unlawful dis-
charges, no threat of plant closure, no intrusive interrogations
or surveillance. To the contrary, the Respondent’s agents are
accused of acting benevolently; high-ranking management of-
ficials are charged with meeting with the employees, sympa-
thetically eliciting their complaints, and promptly resolving
most of them. The Board has not hesitated to declare such
conduct unlawful when benign conduct and the bestowal of
benefits has the same intended purpose as a blatant display
of power; that is, to subvert the employees’ support for a
union. See, e.g., Columbus Mills, 303 NLRB 223 (1991).
The Act does not proscribe employer-sponsored meetings,
however, nor does it prohibit an employer from soliciting
and remedying grievances during a union drive if there is a
past practice of engaging in such conduct, and where in
doing so again, the employer does not intend to subvert the
employees’ interest in union representation. See, Mariposa
Press, 273 NLRB 528, 529 (1984); Wm. T. Burnett & Co.,
273 NLRB 1084, 1086 (1984); Uarco, 216 NLRB 1, 2
(1974). Further, an employer may grant an existing benefit
or announce a new policy, as long as a commitment to do
so was made prior to the Union’s organizational effort. See,
House of Raeford Farms, 308 NLRB 568, 569 (1992). Con-
versely, an employer may not invoke past practice to justify
soliciting employee grievances when the method of solicita-
tion alters significantly during the union campaign. Id.
In light of these precedents, the critical question to be re-
solved here is whether Respondent solicited and promised to
remedy the maintenance workers’ complaints in a manner
that significantly deviated from former practice, with the in-
tent to undermine the Union, as the General Counsel con-
tends, or solicited the employees’ complaints, as was Di-
Bernardino’s custom, and provided remedies consistent with
management decisions made before the Union demanded rec-
ognition, as the Respondent claims. For the reasons set forth
below, I conclude that company officials conducted unprece-
dented meetings with the maintenance employees, sympa-
thetically solicited their complaints, bestowed benefits, and
promised remedies as an antiunion stratagem.
This conclusion rests in part on the curious timing be-
tween various events. One day after the Union’s business
agent requested recognition on the basis of authorization
cards signed by six maintenance employees, Respondent’s
chief executives, joined by the MSD supervisor and the high-
est ranking official at the warehouse, held a hastily called
and unprecedented meeting with all seven maintenance men.
This was done, allegedly, so that they could personally de-
liver good news. Although the employees had complained for
months about the issues, Respondent never before had held
a similar meeting with them, nor had it addressed the em-
ployees’ long-standing complaints, until jolted into action by
the Union’s demand for recognition.
Contrary to Respondent’s claim, the May meetings had no
parallel in DiBernardino’s prior conduct with employees. He
never met with the maintenance staff before May 13 and
after May 21, did not meet with them again. In fact, Sullivan
was employed by Respondent for more than 3 years and yet,
did not know who he was prior to the first meeting. Even
Krystyniak had not attended a meeting with DiBernardino or
Bailey prior to this time. Thus, while DiBernardino may have
invited employees to talk to him freely as he toured the shop
floor, or invited questions at union meetings, those situations
are unlike a meeting at which high-ranking officers of the
VerDate 12-JAN-99 10:40 Jul 29, 1999 Jkt 183525 PO 00000 Frm 00006 Fmt 0610 Sfmt 0610 D:\NLRB\319\31944 apps04 PsN: apps04
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Respondent’s assertion that the wage freeze was inadvertently
applied to hourly paid workers is somewhat suspect in light of its
failure to correct that mistake by compensating the employees whose
annual raises were withheld during the freeze.
Company elicit work-related problems from a specific cat-
egory of employees who just a few days earlier had author-
ized a union agent to represent them.
DiBernardino went to great lengths to establish that the
May 13 meeting was scheduled fortuitously, just after he
learned from Hoffman that the employees would be exempt-
ed from the wage freeze; and thus, had nothing to do with
the employees’ union activity. This attempt to justify meeting
with the employees shortly after they designated the Union
as their collective-bargaining representative was wholly un-
convincing. The truth, as Bailey’s testimony and Respond-
ent’s own exhibit show, is that the decision to correct the
wage freeze error came about sometime before April 30, at
an executive committee meeting in which DiBernardino and
Hoffman participated. Having attended that meeting, he had
to know that a problem he allegedly tried to resolve for
months was, at long last, cured. Bailey’s credited explanation
of how the wage freeze decision was revoked at the execu-
tive committee meeting shattered DiBernardino’s boastful
claim that he spent months trying to unknot the wage freeze
dilemma out of concern for the affected employees, and that
his efforts were rewarded on May 11 when he finally was
assured that the problem was happily resolved.
It is true that Respondent decided to exempt hourly paid
employees from the wage freeze before the Union entered
the scene. The problem is not with the substance of that de-
cision, but with the timing and circumstances attending its
announcement. See, Columbus Mills, supra at 228. If Acme’s
officials had the employees’ interests uppermost in mind, and
were eager to let them know that the freeze was over, a
memo distributed to those affected soon after the executive
committee met in April would have sufficed. After all, Re-
spondent saw nothing wrong in introducing the wage freeze
to employees by way of a memo. Alternatively, the informa-
tion could have been communicated by phone to the affected
employees’ supervisors, the very method Respondent used to
relay the news to groups of employees who had not recently
indicated a serious interest in a union.
Respondent’s claim that it decided prior to May 12 to in-
troduce a new wage scale for the MSD employees is equally
difficult to credit. The executive committee decided in De-
cember 1991 that it would have to propose a wage freeze in
forthcoming negotiations with another union. At the same
time, management resolved to impose a wage freeze on all
salaried employees to demonstrate its serious commitment to
austerity.10 It defies reason to believe that DiBernardino
would seek, or that Respondent would endorse, a new pay
scale for unrepresented, hourly paid workers that granted
them larger raises than any previously bestowed, while ev-
eryone else was told to tighten their belts.
Further, DiBernardino knew for months that the employees
were dissatisfied with their pay scale. If a new system was
under development before May 12, why would DiBernar-
dino, a regular visitor to the Skyline facility, wait until the
day after the Union requested recognition to announce this
fact?
DiBernardino may have thought privately that the MSD
pay scale should be revised. Respondent failed to introduce,
however, any documentary evidence showing that a corporate
decision was made prior to May 12 to restructure the em-
ployees’ wage plan. If Acme’s President had to intervene be-
fore the executive committee exempted some categories of
employees from the wage freeze, surely, DiBernardino had to
obtain executive committee approval to introduce a new pay
scale system, especially when substantial raises for employ-
ees in four facilities were involved, and a paper trail would
have remained.
Moreover, DiBernardino inadvertently revealed that efforts
to develop the new scale did not begin until after the Union
requested recognition. He testified that in the week following
the May 13 meeting with the maintenance employees, salary
administration personnel consulted him some three or four
times to seek his ideas about a progressive pay scale. If Re-
spondent had directed the development of a new wage struc-
ture before the Union was on the scene, the salary adminis-
tration division’s questions to DiBernardino would have been
asked and answered before the Union sought recognition.
Thus, Respondent’s reliance on Camvac International, 288
NLRB 816 (1988), and Uarco, Inc., supra, is misplaced.
Those cases that provide that an employer may announce and
grant a new benefit to which it has committed itself prior to
the onset of a union campaign have no relevance here. The
evidence in this case leads to the inference that Respondent
ignored the maintenance employees’ complaints about their
pay rates until they turned to the Union to represent them.
Only then did the Respondent respond unlawfully by promis-
ing and delivering an enticing new wage progression plan.
B. Other Complaints Unlawfully Remedied
The Company handled the employees’ complaints about
changes in the vacation scheduling policy and shift transfers
just as benevolently as it did the wage freeze and pay scale
matters, and just as unlawfully. Respondent submits that be-
cause DiBernardino did not participate in resolving these
complaints, deferring them instead to Armold and Krysty-
niac, with instructions to address them in accordance with
normal practice, no liability attaches for improperly soliciting
and resolving employee grievances.
Respondent seems to forget that it is as culpable for the
wrongful acts of lesser management employees like Armold,
as it is for those committed by senior officials like DiBernar-
dino. DiBernardino’s suggestion that Armold resolve these
complaints to the employees’ satisfaction, if at all possible,
sent the plant manager a clear signal that he was supposed
to oblige the maintenance men. Why would Armold reverse
a vacation scheduling policy he had implemented several
months before and restore the status quo, or reverse himself
and approve a schedule change that he had disapproved just
a week earlier, if DiBernardino had not clearly indicated that
he was supposed to accommodate the employees’ interests.
The maintenance team was in contact with these supervisors
every day, and yet had not succeeded in obtaining relief until
after the Union requested recognition. In these circumstances,
I conclude that when DiBernardino solicited and Armold re-
solved complaints about changed vacation scheduling poli-
cies and inconvenient shift reassignments in order to placate
the maintenance men, Respondent violated Section 8(a)(1).
VerDate 12-JAN-99 10:40 Jul 29, 1999 Jkt 183525 PO 00000 Frm 00007 Fmt 0610 Sfmt 0610 D:\NLRB\319\31944 apps04 PsN: apps04
277SKYLINE DISTRIBUTORS
11 Kalamazoo Paper Box Corp., 136 NLRB 1715 (1962).
12 Ruhl maintained bathing pool equipment, which differed from
the machinery for which he was responsible at Skyline.
DiBernardino’s response to an employee’s inquiry about
compensation for expenses incurred when he used his own
car for business purposes stands on a somewhat different
footing. In that situation, DiBernardino brought to the em-
ployee’s attention an applicable company policy that clearly
was approved well in advance of Ruppert’s request for rec-
ognition. It is noteworthy, however, that the employee was
not advised of this policy until the Union was in the picture.
Why did DiBernardino testify that he first learned that the
wage freeze was revoked on May 11 when the evidence es-
tablishes that he participated in a meeting sometime in April
at which the decision to revoke was made? Why would he
wait for weeks before announcing this revocation to employ-
ees who had complained about the freeze for months? Why
would company executives hastily call a meeting and drive
45 miles to conduct it, when most of the information they
wished to convey could have been transmitted by phone or
in writing, and the rest of it concerned a new pay scale that
was so incomplete, it could not be described? Why would
DiBernardino tell the maintenance employees that work was
underway on a revised wage scale when that work probably
did not begin until after May 12? Why were the MSD super-
visors so willing to reverse recently made decisions regard-
ing vacation and shift schedules? Why did Respondent’s ex-
ecutives meet separately with MSD employees when they
never had done so before, and would not do so again prior
to the hearing in this matter?
The answers to these questions are not hard to find and
require rejection of DiBernardino’s claim that these extraor-
dinary meetings with the employees had nothing to do with
the Union’s demand for recognition when, in fact, they were
inspired by the Union’s unanticipated emergence. The meet-
ings were held so that the Respondent’s agents could resolve
the employees’ complaints and impress them with their em-
ployer’s largesse. By engaging in this conduct, which suc-
ceeded in wooing the employees away from supporting the
Union, Respondent violated Section 8(a)(1) of the Act.
C. The Maintenance Employees Constitute an
Appropriate Unit
The complaint alleges that the maintenance employees
constitute an appropriate unit whereas the Respondent con-
tends that the maintenance and sanitation employees com-
prise an integrated work force so that a unit that failed to
include both categories would be inappropriate.
It is axiomatic that a unit may be appropriate even if it
is not the most appropriate one. Omni International Hotel,
283 NLRB 475 (1987). Whether a unit composed solely of
the maintenance employees at Skyline is appropriate turns on
an assessment of whether the maintenance employees share
a sufficient community of interest to be grouped together for
purposes of collective bargaining. Although not amenable to
precise definition or easy application, the Board has identi-
fied a number of factors to be considered when this issue
arises:
[A] difference in method of wages or compensation;
different hours of work; different employment benefits;
separate supervision; the degree of dissimilar qualifica-
tions, training and skills; differences in job functions
and amount of working time spent away from the em-
ployment or plant situs. . . . the infrequency or lack of
contact with other employees; lack of integration with
the work functions of other employees or interchange
with them; and the history of bargaining.11
On applying these factors to the record developed in this
case, it is abundantly clear that the maintenance employees
are sufficiently united by work-related interests to justify in-
cluding them in a separate unit.
The most singular characteristic identifying the mainte-
nance employees is the skilled nature of their work. Employ-
ees Sullivan and Ruhl, summoned by subpoena to testify in
this case, were hardly eager to appear as government wit-
nesses. Yet, try as they might, neither was capable of con-
cealing the fact that they and their fellow maintenance em-
ployees performed skilled and technical work repairing and
maintaining complicated machinery that required specialized
knowledge and experience. Sullivan and Ruhl must be cred-
ited when, in spite of themselves, they testified adversely to
their employer’s interests about facts within their knowledge.
Thus, Ruhl, who strained to distance himself from the Union
whenever possible, could not retain that pose when he spoke
with pride about the skilled nature of his work. He had con-
siderable experience repairing equipment before coming to
Skyline.12 Respondent sent him for out-of-state training
twice, and for 2 years, he received specialized in-house train-
ing to enable him to work on the sophisticated Baker trucks.
He, in turn, trained another maintenance worker to work with
him, but never trained a sanitation employee. In fact, he ad-
mitted that he could not even describe the work that such
employees performed. No sanitation worker testified that he
had special training or expertise before he was hired, or that
he received on-the-job training similar to Ruhl’s.
By his earnest efforts to respond to questions more fully
than was necessary, Sullivan appeared to be a particularly
credible witness. Therefore, I attach great weight to his state-
ment that he rarely worked with sanitation employees; when
they did join him, it was almost invariably as a helper. Thus,
it is fair to conclude that there was no real integration of job
functions between the two crews; the maintenance men clear-
ly were distinguished from the sanitation workers by virtue
of their qualifications for and skill needed to perform the
more complex tasks required of them.
Trying to oblige his Employer, MSD Supervisor
Krystyniak testified that he had created a unified and inte-
grated work force by assigning employees from each crew to
the same sort of work. He fell far short of his goal. On com-
paring his testimony with Sullivan’s and Ruhl’s, the conclu-
sion is inescapable that while maintenance employees occa-
sionally performed some tasks that typically were handled by
the sanitation crew, the reverse was not true; that is, sanita-
tion workers did not, indeed, were not capable of performing
the skilled repair work performed by the maintenance staff.
Krystyniak further maintained that he did not necessarily
seek new employees who had prior maintenance experience;
instead, he recruited individuals who were generally capable.
Ruhl’s and Sullivan’s testimony regarding their work experi-
ence before coming to Skyline revealed how willing Krysty-
niac was to distort the truth. The fact that no sanitation
worker was promoted to a maintenance position during
VerDate 12-JAN-99 10:40 Jul 29, 1999 Jkt 183525 PO 00000 Frm 00008 Fmt 0610 Sfmt 0610 D:\NLRB\319\31944 apps04 PsN: apps04
278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Ruhl suggested that he misunderstood the purpose of the au-
thorization card, claiming at trial that he thought by signing it, he
was simply registering interest in the Union. The authorization card
is unambiguous on its face, succinctly stating that the signor des-
ignates the Union as its collective-bargaining representative. More-
over, Ruhl volunteered to accompany Rutter to Armold’s office to
demand recognition and request bargaining. Having voted during the
union meeting to expedite the process leading to collective bargain-
ing, he cannot disavow the actions he took before he was influenced
by the Repondent’s unlawful conduct.
Krystyniak’s tenure also undermined the credibility of his
testimony. If all new employees were equally capable, no
one would accept a sanitation position, since the pay was
much lower.
Krystyniak further alleged that sanitation workers used and
repaired equipment, implying that their work was similar to
that performed by the maintenance employees. The simplicity
of the few pieces of equipment, however, which the sanita-
tion workers used and repaired—items like mops or balers—
bear no comparison to the more complex machinery for
which the maintenance employees were responsible. Krysty-
niak’s efforts to bolster the Respondent’s case in this manner
were so tortured as to cast doubt on all of his testimony.
Other distinctions between the two groups of employees
follow from the difference in their level of skill. For exam-
ple, in possessing greater skill and experience, the mainte-
nance employees received higher wages. They are supervised
by a working foreman who earns several dollars more an
hour than his sanitation counterpart. Unlike the sanitation
workers, the maintenance men are assigned workbench sta-
tions in the shop, are provided tools; and use certain equip-
ment, such as lathes, which the sanitation men do not.
Although the two staffs are assigned to the same shifts,
punch in on the same timeclock, and share the same locker
room and cafeteria, so too do other groups of employees at
Skyline who share no community of interest with either sani-
tation or maintenance employees. The lack of meaningful
interchange among them was signaled by the fact that no
sanitation employee substituted for a maintenance worker
during an absence or vacation period. The maintenance em-
ployees’ decision to seek union representation for themselves
reflects their understanding that they had separate and identi-
fiable interests that were not shared with the sanitation staff.
The Board found that a group of engineering department
employees shared a community of interests where, as here,
they employed skills unique to their classification, had prior
job-related experience, and earned higher wages than the
next highest group. Moreover, there were no instances of em-
ployees transferring into our out of that department. The
Board concluded that these employees formed an appropriate
unit even though they worked sporadically with nonunit em-
ployees, received the same fringe benefits, punched the same
timeclock and were subject to the same general supervision.
Omni International Hotel, supra. Accordingly, in light of the
credited evidence set forth above, I conclude that a unit com-
posed of the maintenance employees at Skyline is appro-
priate for collective-bargaining purposes.
D. A Bargaining Order Is Warranted
As found above, Ruppert requested recognition for the
IAM on May 11, having obtained valid authorization cards
from six of the seven maintenance employees in an appro-
priate unit.13 In rapid-fire order, the Respondent denied rec-
ognition and immediately engaged in conduct that caused the
employees to withdraw the support so recently given to the
Union. Consequently, the question is whether the Respond-
ent’s conduct, coming immediately after the Union’s demand
for recognition, was sufficiently ‘‘egregious and outrageous
as to tend to undermine majority strength and impede the
election processes’’ and whether the possibility of erasing the
effects of that conduct by the use of traditional remedies is
so slight as to warrant a bargaining order. NLRB v. Gissel
Packing Co., 395 U.S. 575, 613, 614–615 (1969). For the
reasons presented below, I conclude that the Respondent’s
unfair labor practices have made it difficult, if not impos-
sible, to hold a fair election, thereby justifying a Gissel bar-
gaining order. Id.
For months, Respondent failed to take any action on the
maintenance employees’ oft-expressed complaints about the
inequity of the pay rate system and the imposition of a wage
freeze. Then, 2 days after the Union requested recognition,
a senior member of management summoned these employees
to an unprecedented meeting, solicited their complaints, and
promised remedial action, most of which was forthcoming
within a week or two.
Of course, DiBernardino knew precisely what the men’s
major complaints would be, having heard about them on
more than one occasion from their supervisor, and having
discussed them with Bailey prior to the meeting. Respondent
delivered on its promises. To be sure, the decision to lift the
wage freeze was a fait accompli; however, the gravamen of
the harm was announcing that it would no longer apply to
the employees as if that decision just issued, when, in fact,
DiBernardino knew about it for weeks. Further, within 2
weeks of the date in which he promised that the wage scale
would be restructured, DiBernardino held a second meeting
with the maintenance men to introduce a progressive wage
scale that significantly increased all but one unit employee’s
pay rate. DiBernardino also knew for months of the employ-
ees’ displeasure with increased health insurance premiums.
Although he was unable to satisfy the employees’ desires for
lower payments, he promised to schedule a meeting at which
the benefits administrator could advise them about alternative
health plans, an action he could have taken many months
earlier. These swift responses to solicited concerns that he
had ignored for months ‘‘suggests an effort by Respondent
to ingratiate itself with its employees’’ in order to impair
their relationship with the Union. Chef’s Pantry, 247 NLRB
77, 81 (1980).
Respondent solicited and promptly rectified other griev-
ances including a reversal of a vacation scheduling policy
and a shift transfer between two of the workers. Although
less remarkable than conferring generous raises, developing
a new wage structure and ending a wage freeze, Respondent
began to bestow these less costly benefits at a critical mo-
ment—2 days after the Union demanded recognition. The va-
cation and shift transfer decisions were rescinded by the very
supervisor who made them in the first place, at the prompt-
ing of senior management officials. Although only a few in-
dividuals benefitted, Respondent’s sympathetic reaction to
their grievances conveyed a message to the entire unit. In
short, by responding quickly and generously to the employ-
VerDate 12-JAN-99 10:40 Jul 29, 1999 Jkt 183525 PO 00000 Frm 00009 Fmt 0610 Sfmt 0610 D:\NLRB\319\31944 apps04 PsN: apps04
279SKYLINE DISTRIBUTORS
14 Enfd. 79 LRRM 2736 (9th Cir. 1972). See also Pembrook Man-
agement, 296 NLRB 1226, 1228 (1989).
15 This is not to imply that turnover in the unit would justify with-
holding a bargaining order. See Astro Printing Services, 300 NLRB
1028, 1029 (1990).
ees’ complaints, the Respondent successfully signaled the
maintenance employees that they had no need to resort to
union representation
At first blush, it may be difficult to regard the award to
employees of long-sought benefits as egregious and out-
rageous conduct. Precisely because of their benign character,
however, such actions may be more invidious than threats of
plant closure, discharges, or other displays of strength. Nei-
ther the courts nor the Board are misled by the devious na-
ture of such tactics. See, e.g., Color Tech Corp., 286 NLRB
476, 477 (1987). In Tower Records, 182 NLRB 382, 387
(1970), the Board aptly observed:
A unilateral award of a wage increase by an employer
following a union’s demand for recognition results in
giving the employees a significant element of what they
were seeking through union representation. It is difficult
to conceive of conduct more likely to convince employ-
ees that with an important part of what they were seek-
ing in hand union representation might no longer be
needed.14
The employees’ defection from the Union was almost as
swift as Respondent’s reaction to the Union’s demand for
recognition. The cause-and-effect relationship between these
occurrences is crystal clear, notwithstanding Respondent’s at-
tempt to blame Ruppert for alienating the workers by mis-
leading them about the purpose of the authorization card, or
harassing them when they withdrew their support. Sullivan
denied that Ruppert harassed him, explaining that he lost in-
terest in the Union when he was convinced that DiBernar-
dino and Armold were ‘‘square shooters’’ who kept their
word. (Tr. 183, 186–187)
Ruhl evidently was peeved with Ruppert, but for reasons
that had no grounds in reality. His refusal to speak with
Ruppert, when just a few days before, he voluntarily accom-
panied him to request recognition from Armold, demonstrates
the success of Respondent’s tactics. Ruhl’s other statements
intended to undermine the validity of his authorization
card—that he signed merely to express interest in the Union,
and that Ruppert orally contradicted explanations in the
Union’s printed materials—also must be rejected as distorted
reflections of Respondent’s unlawful conduct. Even if Ruhl’s
authorization card is discounted, however, five valid cards,
more than a majority of the unit, remain unchallenged.
The final question—whether Respondent’s unfair labor
practices can be corrected through resort to the Board’s tradi-
tional remedies—must be answered negatively. The unfair
labor practices were committed by senior management offi-
cials, with the participation of supervisors immediately re-
sponsible for controlling the employees’ assignments and fu-
ture raises. Their acts reached each man in an admittedly
small unit when no evidence of turnover was presented.15
The pay raises bestowed on the employees as a result of the
restructured pay scale and wage freeze exemption had to
have an enduring impact, not only because of their value to
the employees, but also because the Board does not compel
a respondent to withdraw such benefits. See Color Tech
Corp., supra at 477.
A traditional remedy in this case would entail the issuance
of an order and posting of a Board Notice to Employees re-
quiring that Respondent promise not to engage in the same
or related unfair labor practices committed in the instant mat-
ter, and not to interfere with the exercise of the employees’
Section 7 rights to organize and join a union. I am not con-
fident that such promises would be observed or effective in
light of past experience. DiBernardino’s unlawful conduct
was purposeful; he knew from the outset that his proposed
course of action was improper, and yet acted anyway, after
obtaining legal advice. Moreover, at the first meeting, Di-
Bernardino assured the employees he had no interest in inter-
fering with their decisions about union representation, and
then proceeded to do exactly that with dispatch.
In these circumstances, the prospect of erasing the effects
of Respondent’s unfair labor practices and of ensuring a fair
election in the unit by the use of traditional remedies is
slight. This is a case in which the purposes of the Act, as
well as employee sentiment, once expressed through author-
ization cards, could be served in no other way than by means
of a Gissel Packing Co., 395 U.S. 575 (1969), bargaining
order; Astro Printing Services, supra at 1028.
CONCLUSIONS OF LAW
1. Skyline Distributors, a Division of Acme Markets, Lan-
caster, Pennsylvania, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. District Lodge No. 98, International Association of Ma-
chinists & Aerospace Workers, AFL–CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time maintenance employ-
ees employed at Respondent’s warehouse in Lancaster,
Pennsylvania, excluding all other employees including
warehouse, sanitation, and clerical employees, and
guards and supervisors as defined in the Act.
4. At all times since May 9, 1992, the Union has been and
is now the exclusive representative of the employees in the
above-described unit for the purposes of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By soliciting and implicitly promising to remedy em-
ployee grievances, by unilaterally granting wage increases,
instituting a new wage scale, revising employee work sched-
ules, and changing vacation policies in order to discourage
its employees from union activities, membership, and sup-
port, Respondent has violated Section 8(a)(1) of the Act.
6. Since May 13, 1992, Respondent has failed and refused
to recognize and bargain with the Union as the exclusive bar-
gaining representative of its employees in the unit described
above in paragraph 3, thereby violating Section 8(a)(1) and
(5) of the Act.
7. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
VerDate 12-JAN-99 10:40 Jul 29, 1999 Jkt 183525 PO 00000 Frm 00010 Fmt 0610 Sfmt 0610 D:\NLRB\319\31944 apps04 PsN: apps04
280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 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.
17 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, an Order shall be proposed that it cease and
desist therefrom and take affirmative actions necessary to ef-
fectuate the policies of the Act. Specifically, on request, the
Respondent shall be ordered to recognize and bargain in
good faith with the Union as the exclusive representative of
its maintenance employees, and if consensus is reached, to
execute an agreement.
I also shall recommend that the Respondent post a notice
to employees in which it promises not to engage in like or
related conduct that interferes with, restrains, or coerces em-
ployees in the exercise of rights guaranteed by Section 7 of
the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The Respondent, Skyline Distributors, a Division of Acme
Markets, Lancaster, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Soliciting and implicitly promising to remedy em-
ployee grievances, unilaterally granting wage increases, insti-
tuting a new wage scale, adjusting employee shift schedules,
and revising vacation policies in order to discourage its em-
ployees from joining, supporting, or taking part in union ac-
tivities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed 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 District Lodge No. 98, Inter-
national Association of Machinists & Aerospace Workers,
AFL–CIO as the exclusive representative of the employees in
the following appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached, em-
body the understanding in a signed agreement:
All full-time and regular part-time maintenance employ-
ees employed at Respondent’s warehouse in Lancaster,
Pennsylvania, excluding all other employees including
warehouse, sanitation, and clerical employees, and
guards and supervisors as defined in the Act.
(b) Post at its Lancaster, Pennsylvania facility, copies of
the attached notice marked ‘‘Appendix.’’17 Copies of the no-
tice, on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT solicit and impliedly promise to correct em-
ployee grievances, unilaterally grant wage increases, institute
a new wage scale, adjust employee shift schedules, or revise
vacation policies in order to discourage our employees from
joining, supporting, or participating in union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and condi-
tions of employment for our employees in the following ap-
propriate bargaining unit:
All full-time and regular part-time maintenance employ-
ees employed at Respondent’s warehouse in Lancaster,
Pennsylvania, excluding all other employees including
warehouse, sanitation, and clerical employees, and
guards and supervisors as defined in the Act.
SKYLINE DISTRIBUTORS, A DIVISION OF ACME
MARKETS
VerDate 12-JAN-99 10:40 Jul 29, 1999 Jkt 183525 PO 00000 Frm 00011 Fmt 0610 Sfmt 0610 D:\NLRB\319\31944 apps04 PsN: apps04