SPE Utility Contractors, LLCDownload PDFNational Labor Relations Board - Administrative Judge OpinionsOct 2, 200707-CA-049691 (N.L.R.B. Oct. 2, 2007) Copy Citation JD–67–07 Port Huron, MI UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES SPE UTILITY CONTRACTORS, LLC Cases 7–CA–49691 7–CA–49889 and 7–CA–50103 LOCAL 339, INTERNATIONAL BROTHERHOOD OF TEAMSTERS Dynn Nick, Esq., for the General Counsel. William A. Moore, Esq., (Clark Hill PLC), of Detroit, Michigan, for the Respondent. DECISION Statement of the Case and Findings of Fact ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Detroit, Michigan, on August 8 and 9, 2007. Respondent, which has its main office in Port Huron, Michigan, installs and repairs electrical power lines. It specializes in restoring power lines which have been knocked down in storms. The Union, Local 339 of the International Brotherhood of Teamsters, was certified as the exclusive bargaining representative of Respondent’s office clerical employees on August 14, 2006. It filed the charges and amended charges giving rise to this case between August 7, 2006 and April 27, 2007. The General Counsel issued the second consolidated complaint, which is before this judge, on May 17, 2007. Most of the allegations in the second consolidated complaint were settled prior to hearing. The remaining paragraphs of the consolidated complaint allege that Respondent violated Section 8(a)(5) and (1) of the Act, by the following conduct: 1) Respondent, on October 31, 2006, dealt directly with its represented employee, Linda Leuch, by inquiring how much money it would take for her to resign. 2) On November 1, 2006, Respondent offered Linda Leuch a cash payment and other financial incentives in exchange for her resignation and assistance in terminating the Union’s status as collective bargaining representative of Respondent’s office clerical employees. 3) Respondent laid off Linda Leuch on December 20, 2006, and did so in violation of an agreement with the Union. Further, the General Counsel argues that even in the absence of an agreement, Respondent violated Section 8(a)(5) in laying off Leuch because the parties had not bargained to impasse regarding her lay-off. 4) Respondent unilaterally offered its office clerical employees a cash bonus if these employees reconciled Respondent’s accounts with Florida Power and Light Company (FPL). 5) Respondent unilaterally allowed unit employee Cheri Seaman, who it had laid off, to JD–67–07 5 10 15 20 25 30 35 40 45 50 2 return to its facility to assist other unit employees in reconciling the Florida Power and Light accounts. It also unilaterally required these unit employees to divide their bonus in order to compensate Seaman. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following findings of fact: I. Jurisdiction Respondent, SPE Utility Contractors, installs and repairs electrical power lines. Its principal office is in Port Huron, Michigan. Respondent received well over $500,000 for work performed outside the State of Michigan in 2006. It admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union, Local 339 of the International Brotherhood of Teamsters, is a labor organization within the meaning of Section 2(5) of the Act. II. The factual circumstances pertaining to the alleged unfair labor practices: Complaint paragraphs 26 and 27: Linda Leuch’s conversations with Respondent’s management on or about October 31, and November 1, 2006. The Union was certified as the exclusive collective bargaining representative of Respondent’s clerical employees on August 14, 2006. Respondent bargained with the Union at about 15 sessions between October 2006 and March 2007. The parties were unable to reach agreement on a collective bargaining agreement. By late 2006, Respondent’s workload was declining significantly due in part to the end of its contractual work in Florida repairing hurricane damage to the overhead power lines in that State. The number of employees working for Respondent on power lines had declined from about 300 to about 50. At various times there were 5-6 office clerical employees who were members of the bargaining unit. Tonya Bland1 was appointed union steward; Linda Leuch, who was the unit employee with the longest tenure at SPE, was appointed alternate steward. On or about October 31, 2006, Leuch went to lunch with Michael Moriarity, then vice- president of Respondent’s Michigan operations, and Kurt Satryb, vice-president of Respondent’s Florida operations. Leuch apparently was personally friendly with Moriarity prior to her employment at SPE. According to Leuch, the two managers asked her what it would take for Respondent to get rid of her. Leuch testified that she responded that Respondent’s President, David Postill had cheated her over the years. Moriarity also testified that he and Satryb2 went to lunch with Leuch. However, he testified that it was Leuch that broached the subject of compensation in return for her departure from SPE. According to Moriarity, Leuch claimed that SPE owed her $9,000 in annuities and that she would be willing to resign from the company if she received that amount. Moriarity stated that his response was to offer to talk to Respondent’s President, David Postill, about this 1 Ms. Bland’s given name is Mary Tonya Bland. 2 Satryb no longer worked for Respondent at the time of the hearing. JD–67–07 5 10 15 20 25 30 35 40 45 50 3 issue. He then stated that Leuch asked him to do so. Moriarity also testified that he told Leuch that under certain circumstances the Union might have to agree to such a payment. The next day Leuch met with Postill and Moriarity. According to Leuch, Postill told her that he would pay up her annuity and another $10,000, and not contest her claim for unemployment insurance benefits, if Leuch would make the Union go away. Postill denies this. He testified that he told Leuch that SPE would consider a cash payment to her but that she would have to get the approval of the Union. I dismiss this complaint allegation in so far as it alleges that Respondent was soliciting Leuch’s assistance in getting rid of the Union. I find no basis for crediting Leuch’s testimony over that of Moriarity and Postill. For one thing, I don’t understand how Leuch was supposed to make the Union disappear. There is, for example, nothing in the record that suggests that Respondent was asking Leuch to initiate a decertification petition.3 I also dismiss these allegations in so far as they allege direct dealing by Respondent in attempting to purchase Leuch’s departure without contacting the Union. As discussed later in this decision, Respondent, with regard to the so-called “FPL challenge” demonstrated no compunction in ignoring the Union. However, I find I am unable to credit Leuch’s testimony that the initiative for the pay-off came from Respondent in light of her incredible testimony that Respondent conditioned the payment on her getting rid of the Union. Moreover, I am unable to discredit the testimony of Respondent’s witnesses that they informed Leuch that she must obtain the blessing of the Union before they could agree to a severance package for her. Complaint paragraph 28: alleged breach of agreement in laying off Linda Leuch On December 20, 2006, Respondent’s President summoned all its office clericals to his office and informed them that he was laying-off three of the five bargaining unit members. Two of those laid off were the lowest employees in terms of seniority, Yvonne Sweet and Cheri Seaman. However, Respondent also laid off Linda Leuch, who had the most seniority with Respondent4 and retained Tonya Bland and Lisa Thomson, who had less seniority than Leuch.5 The General Counsel alleges that Respondent agreed with the Union to lay-off according to reverse seniority and breached its agreement. On December 14, Respondent’s lead negotiator, Thomas D’Luge, informed Union business representative Dale Taylor that it was very likely that Respondent would lay-off some bargaining unit members. On or about 3 I also note that the Union had about nine months left in its certification year. Thus, Respondent could not have refused to bargain with the Union on the basis of a decertification petition. On the other hand, Postill may not have been aware of this rule. 4 Sweet and Seaman, but not Leuch, were unilaterally recalled to work by SPE in the winter or spring of 2007. There is no allegation before me that Respondent violated the Act in doing so. 5 Respondent’s lead negotiator D’Luge testified that the Union insisted on super seniority for its steward, Tonya Bland. Union Business Representative Dale Taylor testified that super seniority was never discussed. D’Luge testified that he informed Taylor that Respondent would not agree to super seniority, but wanted to retain Bland for other reasons. Bland, at the time of the lay-off, was working on the Detroit Edison account, which was the largest of Respondent’s accounts at the time. Leuch, in contrast, was working primarily on the Florida Power and Light account. At the time of the lay-off, Respondent’s storm restoration work for FPL had finished although there were millions of dollars in dispute between SPE and FPL. JD–67–07 5 10 15 20 25 30 35 40 45 50 4 December 17, Taylor told D’Luge, that any lay-off must be done by reverse seniority. He apparently did not object or request bargaining about the lay-off itself, or the number of employees who would be laid off. Sometime between December 17 and 19, Taylor and D’Luge discussed Linda Leuch’s ability to handle Respondent’s payroll. D’Luge told Taylor that Respondent didn’t believe that Leuch could perform the payroll tasks. Taylor disagreed. D’Luge also said that if Leuch were assigned to Respondent’s payroll, her wages would be reduced to those paid Cheri Seaman, the employee who was performing the payroll function at the time.6 Taylor testified that in a telephone conversation on December 19, D’Luge agreed that Respondent would lay-off strictly by reverse seniority. D’Luge testified that Respondent never agreed to any Union demands regarding the lay-off, except that it would lay-off part-time employees before full time employees.7 I credit D’Luge since I see no reason for Respondent to raise the issue of the relative capabilities of the unit employees, and then for some unexplained reason agree to lay-off by strict reverse seniority. Both Taylor and D’Luge testified that they argued as to Leuch’s capability with regard to Respondent’s payroll. Since it is clear that Respondent never agreed that Leuch was competent to perform the payroll tasks, it is highly unlikely that it would have agreed to retain her. Generally applicable legal principles When negotiating a collective bargaining agreement with the authorized representative of its employees, an employer is obliged pursuant to Section 8(a)(5) of the Act to maintain the status quo with regard to mandatory subjects of bargaining, NLRB v. Katz, 369 U.S. 736 (1962); Our Lady of Lourdes Health Center, 306 NLRB 337 (1992). During negotiations, an employer’s obligation to refrain from unilateral changes in the wages, hours and other terms and conditions of employment of bargaining unit employees extends beyond the duty to provide notice to the Union and an opportunity to bargain about a subject matter. It encompasses a duty to refrain from implementing such changes at all, absent overall impasse on bargaining for the agreement as a whole, Bottom Line Enterprises, 302 NLRB 373 (1991). There are exceptions to this general rule. One is the “long-standing practice exception.” This exception is based on the recognition that certain unilateral changes do not interfere with collective bargaining because they represent the status quo, Queen Mary Restaurants Corp. v. NLRB, 560 F.2d 403, 408 (9th Cir. 1977); The Courier Journal 342 NLRB No. 1093, 1094 (2004) n. 1. Employers may also implement unilateral changes when a union engages in tactics designed to delay bargaining. Additionally, when economic exigencies compel prompt action, an employer may be entitled to implement such unilateral changes. However, even when “economic exigencies compelling prompt action” justify unilateral changes, the employer must provide the union adequate notice and an opportunity to bargain, RBE Electronics of S.D., 320 NLRB 80, 82 (1995). I conclude that Respondent satisfied its statutory obligations with regard to the lay-off by notifying the Union of its intentions to lay-off office clericals and offering the Union the opportunity to bargain over the lay-offs. As the Union raised no objections either to the lay-off 6 Leuch was being paid $17.50 per hour; Seaman was paid $14 per hour. 7 Respondent’s position statement, Exh. G.C.-6, states that it also agreed to use seniority as a tie-breaker if all other considerations were equal. JD–67–07 5 10 15 20 25 30 35 40 45 50 5 itself, or the number of employees to be laid off, the only remaining issue is whether Respondent violated Section 8(a)(5) by laying off Linda Leuch despite her seniority. Applying the rule in Bottom Line Enterprises, supra, I conclude that Respondent violated Section 8(a)(5). Regardless of whether they had reached an impasse as to whether Leuch should be retained or not, the parties had not reached overall impasse on bargaining for the agreement as a whole. There is no evidence of “economic exigencies” to justify the lay-off of Leuch absent either an agreement or overall impasse. Even assuming that Respondent established that it could operate better with the two employees it retained, Tonya Bland and Lisa Thomson, it did not establish that it could not have continued operating satisfactorily had it retained Leuch instead of one of these two employees. Complaint paragraphs 29 and 30: Respondent’s unilateral offer of a bonus to unit employees (direct dealing) In early January 2007, David Postill summoned unit employees Tonya Bland and Lisa Thomson into his office, along with non-unit employee Lisa Livingston. He offered the three a $10,000 bonus if they could reconcile SPE’s billing disputes with FPL by February 15, 2007.8 This offer is referred to in the transcript and Complaint as the “FPL challenge.” Respondent did not inform the Union of this offer. Livingston, however, asked Bland in her capacity as union steward, if it was o.k.9 Bland responded affirmatively, but opined that the employees would never receive the bonus. Neither Respondent nor Bland informed Business Representative Taylor of the bonus offer in January. Taylor became aware of the bonus offer in mid-February. Postill followed up his oral offer with an email on January 20, 2007, GC Exh. 3. In the email, Postill encouraged the three employees to work at home “or on your own time.” Lisa Livingston suggested that the three invite Cheri Seaman, who had been laid off and not yet recalled, to come to the office to work on this project. The three employees went to David Postill, who approved their plan to get Seaman’s assistance. However, Postill told them that Seaman was to work only on the “FPL challenge.” The employees advised Postill that they would compensate Seaman for her work on this project. Seaman worked for somewhere between 2 and 5 weeks on the “FPL challenge,” possibly 4-5 hours a day. The three warned Seaman that she might not be paid the bonus. As it turned out, none of the employees were paid anything for reconciling the FPL account, which was accomplished after the deadline (which was apparently extended beyond February 15.) Although David Postill was in Florida during all or almost all of the period in which Seaman worked while on lay-off, Michael Moriarity worked in the same building, on the same floor as the clericals on a regular basis. He was aware that Seaman was at Respondent’s office on a regular basis. It is well settled that the Act requires an employer to meet and bargain exclusively with the bargaining representative of its employees, and that an employer who deals directly with its unionized employees or with any representative other than the designated bargaining agent 8 Respondent’s brief asserts that the offer was made initially on January 11, 2007. There is no evidence in the record to support this assertion. However, Tonya Bland testified the offer was made sometime prior to the Postill’s January 20, 2007 email. 9 Bland resigned her position as union steward in March 2007. JD–67–07 5 10 15 20 25 30 35 40 45 50 6 regarding terms and conditions of employment violates Section 8(a)(5) and (1). Direct dealing need not take the form of actual bargaining. As the Board made clear in Modern Merchandising, 284 NLRB 1377, 1379 (1987), the question is whether an employer’s direct solicitation of employee sentiment over working conditions is likely to erode ‘‘the Union’s position as exclusive representative.’’ Going behind the back of the exclusive bargaining representative to seek the input of employees on a proposed change in working conditions plainly erodes the position of the designated representative. Respondent’s offer of a bonus to unit employees without giving notice to the Union and offering it the opportunity to bargain with regard to it constitutes “direct dealing” that violates Section 8(a)(5) and (1) of the Act, Register Guard, 339 NLRB 353, 359 (2003); James Heavy Equipment Specialists, 327 NLRB 910, 915 (1999). Lisa Livingston’s communications with Tonya Bland, who was the Union’s steward until she resigned the position in March, do not satisfy Respondent’s obligation to bargain in good faith with the Union. Livingston, who is David Postill’s aunt, was at one time Respondent’s office manager. It is not clear whether she held this position in January 2007 and the record does not establish that she was either a supervisor or Respondent’s agent. Moreover, Postill’s communication with Bland also failed to satisfy Respondent’s statutory obligations. Bland had informed Postill in October 2006 that he must contact the Union about any changes to the terms and conditions of employment of the bargaining unit employees and that discussing such changes with her was not sufficient. The Union’s Business Representative, Dale Taylor, reiterated this message to Respondent’s lead negotiator, D’Luge, on January 17, 2007, i.e., that SPE must communicate with Taylor in regard to any decision affecting the bargaining unit, not simply with Bland. The controlling Board decision on this issue is Philadelphia Coca-Cola Bottling Co., 340 NLRB 349 (2003). In that case the Board held that notice to union stewards did not constitute notice to the Union where the parties’ collective bargaining agreement and a letter to the employer from the Union President unambiguously informed the employer of limitations on the stewards’ authority. In the instant case, Respondent was on notice from October 2006 onward that it must communicate with Business Representative Taylor regarding any change in the terms and conditions of employment for unit members. Moreover, when Taylor reiterated this message on January 17, Respondent made no effort to inform him of the FPL challenge or the fact that it had approved the performance of unit work by Cheri Seaman. If so informed, Taylor could have, for example, insisted that Respondent bargain with regard to who should be recalled to work on the FPL challenge and how they should be compensated. Thus, Respondent’s direct dealing with unit employees violated Section 8(a)(5). Conclusions of Law Respondent violated Section 8(a)(5) and (1) by laying off Linda Leuch during negotiations for an initial contract with the Union prior to reaching overall impasse on bargaining for the agreement as a whole, dealing directly with unit employees with regard to the “FPL challenge” and recalling Cheri Seaman to perform bargaining unit work. Remedy Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. JD–67–07 5 10 15 20 25 30 35 40 45 50 7 The Respondent having illegally laid-off an employee, it must offer her reinstatement and make her whole for any loss of earnings and other benefits, computed on a quarterly basis from date of the lay-off to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended10 ORDER The Respondent, SPE Utility Contractors, LLC, Port Huron, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Dealing directly with its office clerical employees who are members of the bargaining unit with regard to the terms and conditions of their employment without notifying those officials of Teamsters Local 339 who Respondent has been told are authorized to bargain with regard to such terms and conditions. (b) Making unilateral changes in the terms and conditions of employment of bargaining unit members during contract negotiations unless agreement has been reached or an impasse has been reached on bargaining for an agreement as a whole. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Upon request from the Union bargain collectively and in good faith with regard to compensating unit employees for any and all work performed with respect to the FPL challenge. However, at a minimum, all unit employees must be compensated for work performed in a manner consistent with the Fair Labor Standards Act. (b) On request, bargain with the Union as the exclusive representative of the employees in its office clerical bargaining unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement. (c) Within 14 days from the date of the Board’s Order, offer Linda Leuch full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. (d) Make Linda Leuch whole for any loss of earnings and other benefits suffered as a result of her December 20, 2006 lay-off in the manner set forth in the remedy section of the decision. 10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. JD–67–07 5 10 15 20 25 30 35 40 45 50 8 (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its Port Huron, Michigan office copies of the attached notice marked “Appendix.”11 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since December 20, 2006. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. (h) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C., October 2, 2007. ____________________ Arthur J. Amchan Administrative Law Judge 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.” JD–67–07 Port Huron, MI APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this Notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities WE WILL NOT bypass International Brotherhood of Teamsters, Local 339, and WE WILL NOT deal directly with members of our bargaining unit consisting of office clerical employees with regard to the terms and conditions of their employment. WE WILL NOT deal with stewards or other agents of International Brotherhood of Teamsters, Local 339, after being told that such stewards or agents do not have authority to deal with us with regard to terms and conditions of employment of the members of our office clerical bargaining unit. WE WILL NOT unilaterally implement any changes to the terms and conditions of employment of employees in our office clericals bargaining unit during collective bargaining negotiations, including lay-offs, unless impasse has been reached with regard to negotiations for a contract as a whole. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of this Order, offer Linda Leuch full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. WE WILL make Linda Leuch whole for any loss of earnings and other benefits resulting from her December 20, 2006 lay-off, less any net interim earnings, plus interest. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the office clericals bargaining unit. JD–67–07 Port Huron, MI WE WILL, on request, bargain with the Union with regard to compensation for unit employees who performed work on the “FPL challenge. However, in any event, WE WILL compensate these employees in a manner not less than is consistent with the Fair Labor Standards Act. SPE UTILITY CONTRACTORS, LLC (Employer) Dated By (Representative) (Title) The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. 477 Michigan Avenue, Federal Building, Room 300 Detroit, Michigan 48226-2569 Hours: 8:15 a.m. to 4:45 p.m. 313-226-3200. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, 313-226-3244. Copy with citationCopy as parenthetical citation