Tocco, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1279 (N.L.R.B. 1998)

TOCCO, INC. 1279
Tocco, Inc. and International Union, United Automo-
bile, Aerospace, and Agricultural Implement
Workers of America, AFL–CIO. Cases 10–CA–
30754, 10–CA–30789, and 10–CA–30869
September 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On July 1, 1998, Administrative Law Judge Lawrence
W. Cullen issued the attached Bench decision. The Act-
ing General Counsel filed exceptions and a supporting
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Tocco,
Inc., Boaz, Alabama, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(c).
“(c) Furnish to the Union in a timely fashion the in-
formation requested by the Union on December 18,
1997, February 2 and March 6, 1998.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX B
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.

1 There are no exceptions to the unfair labor practices found by the
judge. We have, however, consistent with the Acting General Counsel’s
exceptions, modified the recommended Order and notice to more
closely reflect the violations found and the Board’s usual remedial
provisions.

WE WILL NOT withdraw recognition from International
Union, United Automobile, Aerospace, and Agricultural
Implement Workers of America, AFL–CIO and refuse to
bargain with the Union concerning the rates of pay,
wages, hours, and terms and conditions of employment
of our employees in the following appropriate unit:

All regular full-time and regular part-time production
and maintenance employees, including operators,
maintenance technicians, test employees, field service
employees, custodians, painters, shippers, and store
room employees employed by us at our Boaz, Ala-
bama, facility but excluding all office clerical employ-
ees, professional or technical employees, temporary
employees, guards and supervisors as defined in the
Act.

WE WILL NOT fail and refuse to furnish information
relevant and necessary to the Union as the collective-
bargaining representative of the unit employees.
WE WILL NOT institute unilateral changes in the pay,
wages, hours, and terms and conditions of employment
of our employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind our withdrawal of recognition from
the Union.
WE WILL, on request, recognize and bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the above-described unit.
WE WILL in a timely fashion furnish the Union with the
information requested on December 18, 1997, February 2
and March 6, 1998.
WE WILL, on request by the Union, rescind any or all
unilateral changes in wages, hours, or other terms and
conditions of employment and restore the status quo.
WE WILL make our employees whole, with interest, for
any loss of earnings or benefits they may have suffered
as a result of our withdrawal of recognition from the Un-
ion and our institution of unilateral changes in the wages,
hours, or other terms and conditions of employment.

TOCCO, INC.
Lisa Y. Henderson, Esq., for the General Counsel.
Clifford R. Oviatt Jr., Esq., and F. Frank Keene, President, for
the Respondent.
Robert S. Giolito, Esq., for the Charging Party.
BENCH DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
consolidated case was heard before me on June 1 and 2, 1998.
I issued a Bench Decision on June 2, 1998, pursuant to Section
102.35(a)(1) of the Board’s Rules and Regulations on the entire
record in this proceeding including my consideration of the
326 NLRB No. 128
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1280
exhibits filed and the brief of the Charging Party and the argu-
ments of counsel for all parties at the hearing. In accordance
with Section 102.45 of the Board’s Rules and Regulations I
certify the accuracy of, and attach as “Appendix A” the perti-
nent portion of the trial transcript (pp. 445–466) as corrected
and modified.
THE REMEDY
Having found that the Respondent has engaged in violations
of the Act, it will be recommended that the Respondent cease
and desist therefrom and take certain affirmative actions de-
signed to effectuate the purposes of the Act and post the appro-
priate notice.
It is recommended that Respondent rescind its withdrawal of
recognition from the Union, that it bargain with the Union for a
reasonable time, that it provide the information requested by
the Union, and that on request by the Union, that it rescind any
or all of the unilateral changes and restore the status quo, and
that it make the employees whole for any loss of earnings or
benefits sustained by them as a result of the unlawful with-
drawal of recognition and implementation of unilateral changes
in its employee’s terms and conditions of employment in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).1
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Tocco, Inc., Boaz, Alabama, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from and refusing to bargain
with International Union, United Automobile, Aerospace, and
Agricultural Implement Workers of America, AFL–CIO in the
above-described appropriate unit, failing and refusing to furnish
information necessary for bargaining and instituting unilateral
changes in its employees’ terms and conditions of employment.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
(a) Rescind its withdrawal of recognition from the Union.
(b) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit
concerning terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement:

All regular full-time and regular part-time production and
maintenance employees, including operators, maintenance
technicians, test employees, field service employees, custodi-
ans, painters, shippers, and store room employees employed
by the Respondent at its Boaz, Alabama, facility but exclud-

1 Interest shall be computed at the “short term Federal rate” for the
underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. §
6621.
2 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 pur-
poses.
ing all office clerical employees, professional or technical
employees, temporary employees, guards and supervisors as
defined in the Act.

(c) Provide the aforesaid information requested by the Un-
ion.
(d) On request by the Union, rescind any or all unilateral
changes unlawfully implemented and restore the status quo.
(e) Make its employees whole for any loss of earnings or
benefits they may have sustained as a result of the Respon-
dent’s unfair labor practices, with interest, as set out in the rem-
edy.
(f) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(g) Within 14 days after service by the Region, post at its fa-
cility in Boaz, Alabama, copies of the attached notice marked
“Appendix [B].3” Copies of the notice, on forms provided by
the Regional Director for Region 10, after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since September 16, 1997.
(h) 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.
APPENDIX A
445
JUDGE CULLEN: All right, let's tentatively set 2:30 for this
and I will ask that Counsel be in here at 2:30 unless there is
some delay which I'll advise you.
MS. HENDERSON: Thank you.
MR. OVIATT: Your Honor, that particular exhibit was Charg-
ing Party's No. 4.
JUDGE CULLEN: All right, we're still on the record.
MR. OVIATT: Yes, it's Charging Party - let me look. I just
had it here. I think it's Charging Party No. 4. Hold on.
JUDGE CULLEN: Charging Party's what?
MR. OVIATT: No. 4. No. 4, Your Honor.
JUDGE CULLEN: Okay, I've got it. Anything else before we
go into a recess? Hearing nothing we will be in recess until
2:30.
(Off the record.)
3 If this Order is enforced by a Judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”

TOCCO, INC.
1281
(Whereupon, the hearing in the above entitled matter was re-
cessed at 1:15 p.m. to reconvene at 2:30 p.m. in the same
place.)
DECISION
LAWRENCE CULLEN, Administrative Law Judge. This consoli-
dated case was heard before me in Birmingham, Alabama on
June 1 and 2nd, 1998.
The Order consolidating cases, amended consolidated com-
plaint and notice of hearing was filed by the Regional Director
of Region Ten of the National Labor Relations Board, (“the
Board”) on May 14, 1998. The Charge in Case 10–CA–30754
was filed by the International Union, United Automobile, Aero-
space and Agricultural Implement Workers’ of America, AFL–
CIO, (“the Charging Party or the Union”) on January 20,
446
1998. The Charge in Case 10–CA–30789 was filed by the
Union on February 9, 1998. The Amended Charge in Case 10–
CA–30869 was filed by the Union on April 8, 1998.
The Complaint alleges that Respondent, Tocco, Inc (“the Re-
spondent” or “the Company”) has violated Sections 8(a)(1) and
(5) of the National Labor Relations Act. The Respondent, by
its Answer, filed on May 27, 1998, has denied the commission
of any violations of the Act.
After hearing the testimony in this case and reviewing the
exhibits received in evidence and the Charging Party’s pre-
hearing brief and the arguments of the General Counsel, Charg-
ing Party and Respondent on the record, I make the following
findings of fact and conclusions of Law:
Respondent is an Alabama corporation with an office and
place of business in Boaz, Alabama, where it is engaged in the
design, manufacture and sale of precision induction heating
equipment. During the twelve (12) month period preceeding
issuance of the Complaint, Respondent, in conducting its afore-
said business operations shipped goods valued in excess of fifty
thousand ($50,000.00) from its Boaz, Alabama facility directly
to customers outside the State of Alabama. Respondent 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 Sec-
tion 2(5) of the Act.

The appropriate unit.

The following employees of Respondent, herein called the
unit, constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act as
certified in Case 10-RC-14495, as follows: All regular full-time
and regular part-time production and maintenance employees,
including operators, maintenance
447
technicians, test employees, field service employees, custodi-
ans, painters, shippers, and store room employees employed by
the Respondent at its Boaz, Alabama, facility but excluding all
office clerical employees, professional or technical employees,
temporary employees, guards and supervisors as defined in the
Act.
On May 12, 1994, in an election by secret ballot conducted
under the supervision of the Regional Director for Region Ten
in Case 10–RC–14495, a majority of the employees in the unit
described above, designated and selected the Union as their
representative for the purpose of collective bargaining with
Respondent with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment. On
May 20, 1994, the Regional Director of Region Ten of the
Board certified the Union as the exclusive collective bargaining
representative of all the employees in the unit described above.
At all times since May 20, 1994, by virtue of Section 9(a) of the
Act, the Union has been and is the exclusive collective bargain-
ing representative of the employees of the Respondent in the
unit described above with respect to rates of pay, wages hours
of employment and other terms and conditions of employment.
The Complaint alleges in paragraph ten (10) that since on or
about September 22, 1997, and continuing thereafter and with-
out prior notification to and bargaining with the Union, Re-
spondent has unilaterally assigned unit employees to trainer
positions and has unilaterally established pay rates for those
unit positions.
It further alleges in paragraph eleven (11) that since on or
about October 27, 1997, and continuing to date, Respondent
has unilaterally and without prior notification to and
448
bargaining with the Union, changed existing policies regarding
employees’ use of radios at their workstations.
The Complaint further alleges in paragraph twelve (12) that
since on or about March 2, 1998, and continuing thereafter and
without prior notification to and bargaining with the Union,
Respondent has unilaterally moved unit employees to new
shifts and has unilaterally eliminated shifts.
The Complaint further alleges in paragraph thirteen (13) that
on or about December 18, 1997, and continuing thereafter, the
Union made the following request for information: records,
reports, documents, including classroom instruction participa-
tion, of any and all training of contract or permanent personnel
conducted by employees assigned to the job of trainer from
July 1997; how employees would be placed and their classifica-
tion status under Respondent’s proposal on job classification;
Respondent’s corporate policy on substance abuse; Respon-
dent’s current tuition reimbursement policy and Respondent’s
current bereavement policy.
The Complaint alleges in paragraph 14 that this information
requested by the Union was necessary for, and relevant to, the
Union’s performance of its duties as the exclusive bargaining
representative of the employees in the unit described above.
The Complaint also alleges in paragraph 15 that since on or
about December 18, 1997, the Respondent has failed and re-
fused to furnish to the Union the information described above.
The Complaint also alleges in paragraph sixteen (16) that on
or about February 2, 1998, and continuing thereafter, the Union
made the following request for information: names of employ-
ees affected by the return of trainers to their normal duties;
dates(s)
449
trainer pay was rescinded; names and department of employees
still assigned to trainer status; and if those events were caused
by reduction of contract personnel or cessation of training pro-
grams and the dates of those events.
The Complaint alleges in paragraph 17 that the information
was necessary for, and relevant to, the Union’s performance of
its duties as the exclusive bargaining representative of the em-
ployees in the unit described above. The Complaint further
alleges in paragraph eighteen (18) that since on or about Febru-
ary 2, 1998, and continuing thereafter, the Respondent has
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1282
failed and refused to furnish to the Union the information de-
scribed above.
The Complaint further alleges in paragraph nineteen (19)
that on or about March 6, 1998, and continuing thereafter, the
Union made the following request for information: name, hire
date and department of employees moved between shifts,
elimination of any previously existing shift in any department;
and the reasons for employee movement and shift elimination.
The Complaint in paragraph 20 further alleges that the in-
formation requested by the Union as described in paragraph 19
was necessary for, and relevant to, the Union’s performance of
its duties as the exclusive bargaining representative of the em-
ployees in the unit.
The Complaint further alleges in paragraph 21 that since on
or about March 6, 1998, and continuing thereafter, the Respon-
dent has failed and refused to furnish to the Union the informa-
tion described above.
The Complaint further alleges in paragraph twenty-two (22)
that on or about January 21, 1998, the Respondent withdrew
recognition from the Union and since said
450
date has failed and refused to recognize the Union as the collec-
tive bargaining representative of the employees described in the
above paragraph.
The Complaint further alleges in paragraph 23 that by the
acts and conduct described above, the Respondent has failed
and refused and is failing and refusing to bargain collectively
with the Union as representative of its employees, and Respon-
dent thereby has been engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (5) and 8(d) of the Act.
As I understand from the stipulation of the parties, the with-
drawal of recognition actually occurred on January 28th.
Testimony was presented at the hearing and the General
Counsel called Andy Huddleston, who is a supervisor of Hu-
man Resources for the Respondent and the custodian of the
records and through him identified General Counsel’s Exhibits
8, 9, 10 and 11. Charging Party submitted Exhibits 1 through
4.
The General Counsel also called as a witness in its case, Roy
Don Bevis, who is an International Representative with the
United Auto Workers and has been since June 13, 1993. Mr.
Bevis testified that he was involved in the contract negotiations
with the Respondent since August of 1994 and was involved in
twenty six (26) meetings between that time and September of
1997.
He also testified that there were bargaining sessions held on
September 17 and 18, 1997 and that at that time, no issue of
trainer pay was raised by the employer.
He identified General Counsel’s Exhibits 12 through 19, in-
cluding requests of the Union for information and responses
thereto received by the employer.
451
He testified that at no time did the employer bargain with the
Union as to what training pay should be or any other details of
the trainer position.
He testified that there was no discussion about trainer pay.
He testified that he did not receive a response to items re-
quested, items one (1) through five (5), requested in General
Counsel’s Exhibit 17.
He testified that he made a request for information in Gen-
eral Counsel’s Exhibit 18 and did not receive a response to
General Counsel’s Exhibit 18. Previously, a letter was sent to
Bevis from Huddleston regarding trainer pay and the Union’s
request for information regarding trainers in response to Gen-
eral Counsel’s Exhibit 12.
General Counsel’s Exhibit 14 was a response to the Union
with respect to the training pay differential.
General Counsel’s Exhibit 15 was a request for information
with General Counsel’s Exhibit 16 being a response to that
information.
He testified that in the fall of 1997, the Union raised the is-
sue of radio usage with the company as the company had told
employees to take their radios home. Previously, employees
were permitted to play their radios while working. There was
no prior indication to him about changing the radio policy. The
company’s counsel at the time, Kent Henslee, said that they had
made a change in the radio policy due to complaints. Bevis was
subsequently advised a few weeks later, this was in the fall of
1997, that the company had again changed its policy to a modi-
fied form of permitting radios to be played after certain hours
He testified that in March of 1998, he was advised that the
company had transferred employees and eliminated total shifts
without notifying the Union. He also
452
identified General Counsel’s Exhibit 19, which is a request for
information made by the Union to the Respondent. The date
was March 6, 1998, requesting information with respect to the
shift changes. He testified also that the Union has never re-
ceived a response to General Counsel’s Exhibit 19.
He also testifed that the Respondent has been ordered to bar-
gain in other Board Orders. Prior to January 1, 1998, the em-
ployer posted a notice with respect to bargaining of shift
changes pursuant to a settlement agreement that was entered in
a prior case.
Prior to this case, there have been two Administrative Law
Judge’s decisions, two Board decisions and 1 Court of Appeals
Order of Enforcement.
In Board Case, Tocco, Inc. 323 NLRB No. 72 (1997) [not
reported in board volumes] issued on April 18, 1997, the Board
upheld Administrative Law Judge J. Pargen Robertson’s deci-
sion of August 7, 1995. In his decision of 1995, the Administra-
tive Law Judge found that Respondent had violated Section
8(a)(1)(3) and (5) of the Act. He found that the General Coun-
sel had proved a prima facie case in support of the allegation
that Respondent had eliminated its educational and relocation
assistance because of its employees’ union activity. He found
that the Respondent had engaged in conduct in violation of
Section 8(a)(1) and (3) by eliminating education and relocation
benefits for unit employees in June of 1994. He found also that
the loss of education and relocation benefits constitute manda-
tory bargaining subjects and Respondent’s elimination of those
benefits without notifying and bargaining with the Union con-
stituted a violation of Section 8(a)(5) of the Act.
He further found that by changing its drug testing policy and
testing employees resulting in the discharge of unit employees
Kelley Dilbeck, Doyle Burns and Kurt McDaniel, without noti-
fying and bargaining with the Union, Respondent had engaged
in
453
conduct in violation of Section 8(a)(1) and (5) of the Act. He
further found Respondent thereby engaged in unfair labor prac-

TOCCO, INC.
1283
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
He also found that Respondent had violated Section 8(a)(1)
of the Act by threatening its employees that it had eliminated
their education assistance because the employees selected In-
ternational Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW as their collective
bargaining representative.
He ordered that Respondent cease and desist from unilater-
ally eliminating its education and relocation assistance policies
because its employees elected the Union and are eligible to join
the Union, without first notifying and bargaining with the Un-
ion as its employees’ exclusive bargaining representative and
from threatening to eliminate the education assistance.
He further ordered that Respondent cease and desist from
unilaterally conducting drug tests among all bargaining unit
employees without first notifying and bargaining with the Un-
ion.
He further ordered that the Respondent take the following af-
firmative actions necessary to effectuate the policies of the Act
to remedy the violations that he had found. On request, bargain
in good faith with the Union as the exclusive bargaining repre-
sentative of the unit employees in the unit described herein
above. Restore conditions to status quo ante as they existed
before its unlawful actions. Restore to its employees in the
above described bargaining unit the education and relocation
assistance benefits as they existed before Respondent unlaw-
fully eliminated those benefits and restore its drug testing pol-
icy to the policy that existed before it unilaterally changed its
454
policy. Further, Respondent was ordered to offer to Kelley
Dilbeck, Doyle Burns, and Kurt McDaniel immediate rein-
statement to their former positions with full backpay and bene-
fits and with interest in accordance with the remedy section of
his decision, with no loss of seniority or other rights and privi-
leges previously enjoyed. Further, Respondent was ordered to
remove from its files any reference to its unlawful layoffs and
refusal to reinstate its employees as found herein, and notify
them in writing of this, and that said action shall not be used as
a basis for future personnel actions. Respondent was further
ordered to post the appropriate notice and to notify the Re-
gional Director in writing within twenty (20) days of the date of
the Order what steps the Respondent had taken to comply.
The Respondent chose to appeal this decision, as is its right
to do, and on April 18, 1997, the Board issued its decision and
Order in this case and affirmed the Administrative Law Judge’s
Order and entered the appropriate remedy with some minor
modifications, but, in essence, essentially the same remedy as
Judge Robertson had entered.
The Board’s Decision went before the United States Court of
Appeals for the Eleventh Circuit and on April 8, 1998, on Peti-
tion for Review of an Order of the National Labor Relations
Board in Tocco Inc. v. NLRB Case No. 97–6646 the Peti-
tioner/Respondent’s motion to dismiss the petition for review
without prejudice with the parties bearing their own costs on
review was granted. The Petitioner/Respondent’s motion to
dismiss the NLRB’s cross-petition for enforcement was denied.
Thus, the Board was granted enforcement of its Order by the
Eleventh Circuit Court of Appeals
455
On September 18, 1997, Administrative Law Judge Howard
I. Grossman entered his decision in the Case of Tocco, Inc and
International Union, United Automobile, Aerospace, and Agri-
cultural Implement Workers of America, AFL–CIO in Cases
10–CA–29372 and 10–CA–30077. In his decision, Judge
Grossman found the Respondent had violated Section 8(a)(1) of
the National Labor Relations Act by coercively interrogating
employees regarding an unfair labor practice charge filed by the
Union against the Respondent. He found also that the Respon-
dent had violated Section 8(a)(3) and (1) of the Act by issuing a
final warning to Debra Ward on January 18, 1996, and by dis-
charging her on March 18, 1996, because of her Union and
other concerted protected activities. He further found that Re-
spondent had violated Section 8(a)(4) and (1) of the Act by
threatening an employee that it would institute legal proceed-
ings or engage in other reprisals if the employee gave testimony
in a Board proceeding, and by telling an employee that he was
being treated differently because he gave evidence in support of
the protected activity of fellow employees in filing a lawsuit
against Respondent. He further found that Respondent had
violated Section 8(a)(5) of the Act by unilaterally changing
shift assignments on June 23, 1994, and doing the same on May
15, 1995, including elimination of the second shift, without
giving the certified Union, notice and an opportunity to bargain
over the changes.
He entered an Order that Tocco, Inc, its officers, agents, suc-
cessors, and assigns, shall; cease and desist from
(A) Coercively interrogating employees regarding unfair la-
bor practice charges filed against them by the Union.
456
(B) Threatening employees that it will institute legal pro-
ceedings against them or engage in other reprisals if the em-
ployees give testimony in a Board proceeding.
(C) Telling employees that they are being treated differently
because they gave evidence in support of the protected activity
of fellow employees in filing a lawsuit against Respondent.
(D) Warning or discharging employees because of their Un-
ion or other protected concerted activity, or by discriminating
against them in any other way with respect to their wages,
hours of work, tenure, or other terms and conditions of em-
ployment.
(E) Transferring employees from one shift to another, or
eliminating shifts, without first giving notice and an opportu-
nity to bargain to International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America.
AFL–CIO.
(F) In any other like or similar manner, interfering with, re-
straining, or coercing its employees in violation of their rights
under Section 7 of the Act.
He further ordered that the Respondent take the following af-
firmative action necessary to effectuate the purposes of the Act:
(A) Within 14 days after service of this Order, offer Debra
Ward reinstatement to her former position, or, if that position
no longer exists, to a substantially equivalent position, without
loss of seniority and other rights, dismissing if necessary any
employee hired to fill said position, and make her whole in the
manner set forth in the remedy section of his Decision.
(B) Within 14 days after service of this Order, expunge from
its records all references to its unlawful warning of Debra Ward
on January 18, 1996, and its unlawful
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1284
457
discharge of her on March 18, 1996, and inform her in writing
that this has been done, and that the aforesaid actions will not
be used as the basis of any future discipline of her.
No exceptions were filed to Judge Grossman’s Decision and
there being no exceptions filed, the Board in its Order of Feb-
ruary 2, 1998 adopted the Decision of Judge Grossman.
On January 1 of this year, the employees filed a petition with
the employer stating that they no longer wished the Union to
represent them. On that basis, shortly thereafter, on January
28th 1998, the employer withdrew recognition.
At the time that the employer received the petition and at the
time of the withdrawal of recognition, the above cited unfair
labor practices had not been remedied. As the Charging Party
argues in his Brief, the Board with the support of the Court has
long upheld a presumption that an employer’s unremedied re-
fusal to bargain with an incumbent Union taints any evidence
of the Union’s subsequent loss of support. In this case, the Re-
spondent has a difficult burden of submitting evidence that
would rebut this presumption.
Particularly in point is a case cited by the Charging Party and
the General Counsel and that is Lee Lumber and Building Ma-
terial Corp., 322 NLRB 175 (1996), affirmed in relevant part,
117 Fed Third 1454, (D.C. Circuit 1997). In that Case, the
Board affirmed its practice of presuming that when an em-
ployer unlawfully fails or refuses to recognize and bargain with
an incumbent Union, any employee disaffection from the Union
that arises during the course of that failure or refusal results
from the earlier unlawful conduct. At page 178, the Board held
that “in the absence of unusual circumstances, we find that this
presumption of unlawful taint can be rebutted only by an em-
ployer showing
458
that employee disaffection arose after the employer resumed its
recognition of the Union and bargained for a reasonable period
of time without committing any additional unfair labor prac-
tices that would detrimentally affect the bargaining.”
In this Case, before me the Respondent has not remedied the
unfair labor practices that date back some years prior to the
instant date. It has not resumed its recognition of the Union. It
has not bargained for a reasonable period of time without
committing any additional unfair labor practices that would
detrimentally affect bargaining.
In this Case, it is obvious from the statements of the various
employees brought here to testify that they had signed the peti-
tion that there has been disaffection by the employees with the
Union. However, the circumstances in this case clearly show
that such disaffection would be inevitable. Obviously, the em-
ployer has the fist within the velvet glove to give the employees
benefits and pay increases if it so chooses. On the other hand,
it is the employer who wields the possibility of discharge or
discipline of some sort that can affect the employees’ economic
status significantly. I find that any disaffection in this unit is to
be presumed as arising from these unfair labor practices of
violations of Sections 8(a)(1), 8(a)(3), 8(a)(4) and 8(a)(5). The
8(a)(5) violations go to the heart of the bargaining representa-
tive’s status as a collective bargaining representative of the
employees.
As the unfair labor practices were unremedied, they pre-
sumably affected the status of the Union in the employees’
eyes. Thus, the employees may look at the Union as being
either ineffectual on the one hand or unduly argumentative and
unwilling to reach an agreement on the other. In the face of
these unfair labor practices, the
459
Respondent was not in a position to withdraw recognition based
on this petition. In doing so, it violated Sections 8(a)(5) and (1)
of the Act.
I note that the testimony of these various employees was not
quite as clear cut as I heard the Respondent argue in closing
statement. While many of them said that they were not aware
of the finding of the unfair labor practices by the Board, some
of them indicated that they were aware of the situation that was
going on with respect to employees having been discharged,
and that some employees contended that they were discharged
because of their union activities.
I have considered the Quazite Case, which is cited by the
Respondent. I find it distinguishable from this case.
In Quazite, Division of Morrison Molded Fibreglass Com-
pany v. National Labor Relations Board, 87 F.3d 493 (D.C. Cir
1996), the Court noted that if the Board can establish a link
between unfair labor practices it may impose a 12 month bar-
gaining order. The Court noted that the Administrative Law
Judge had found that the evidence did not support the Section
8(a)(5) allegation that Quazite had bargained in bad faith, but
that the company had, indeed, committed other unfair labor
practices.
In the instant case before me, there have been findings of
Section 8(a)(5) violations which remain unremedied.
The court in the Quazite case further stated that during an
initial 12 month period from the date that a Union is certified as
a collective bargaining representative, it is conclusively pre-
sumed to enjoy the support of the majority of the employees in
the collective bargaining unit. Thereafter, an employer may
lawfully withdraw its recognition from the Union if it has a
good faith doubt objectively founded that the Union
460
continues to command majority support unless the employer’s
own unfair labor practices may account for the employee’s
diminished allegiance to the Union.
In that case, the D.C. Circuit agreed with the employer that
the Board had disregarded its responsibility to give a reasoned
explanation for its actions in issuing the bargaining order. It set
out a four point test that the Board had used in Master Slack
Corporation, 271 NLRB 78, 84 (1984), and which the court
endorsed in Williams Enters, Inc. v. NLRB, 956, F.2d, 1226
(1992), as follows:
1.) The length of time between the unfair labor practices and
the employee petition.
2.) The nature of the unfair labor practices including whether
they are of a nature that would cause a lasting or detrimental
effect on the employees.
3.) The tendency of the unfair labor practices to cause em-
ployee disaffection with the Union.
4) The effect of the unlawful conduct on the employees’ or-
ganizational activities and membership in the Union.
The D.C. Circuit Court of Appeals noted that the Board had
provided no explanation for its key finding that the withdrawal
of recognition occurred in an atmosphere poisoned by Respon-
dent’s commission of unfair labor practices which had the ef-
fect of contributing significantly to the Union’s loss of majority
among the bargaining unit employees. This case was not an

TOCCO, INC.
1285
outright reversal of the Board. Rather, the D.C. Court of Ap-
peals remanded “this matter for the Board to document its de-
termination that the unremedied unfair labor practices in this
case, individually and
461
cumulatively, were the type of violations that tend to under-
mine the Union status in the employees’ eyes and did so.”
In the instant case, I have found that these unremedied unfair
labor practices in the prior two cases and the Section 8(a)(5)
allegations which I will find violations on herein after that in
the fall of 1997 and continuing into 1998 were close in time
with the withdrawal of recognition by the employer. There has
not been a great period of time that has elapsed between the
commission of these unfair labor practices between the finding
of violations by the Administrative Law Judges, by the Board,
ultimately upheld by the Court of Appeals. They were on-
going. They were hanging over everyone’s head here. They
were unresolved. And, the employees were in a position of
getting the message that they were unresolved and had been
unresolved for some time with no resolution in sight.
Now, with respect to the nature of the unfair labor practices,
there were violations of 8(a)(1), 8(a)(3), 8(a)(4), and 8(a)(5).
8(a)(5) goes to the heart of the bargaining relationship.
8(a)(4) constitutes an attack on employees’ access to the
Board.
8(a)(3) resulted in discrimination against employees.
8(a)(1) threats of discrimination.
These were certainly the type of unfair labor practices that
would cause a lasting detrimental effect until such time as they
were remedied. The failure to remedy the above unfair labor
practices had a tendency to cause employee disaffection with
the Union. That is, employees were out of work with the Re-
spondent, having been discharged and are still out, have not
been reinstated to their jobs with full back pay and
462
the attendant remedies approved by the Board. There has been
no posting of a notice by the employer, that it would no longer
violate the Act. None of this occurred.
It is obvious that the effect of the unlawful conduct on em-
ployees’ morale, their organizational activities and their mem-
bership in the Union would be substantial under these circum-
stances.
With respect to paragraph ten (10) of the Complaint, I find
that the Respondent violated Section 8(a)(1) and (5) of the Act
by unilaterally implementing these training positions, assigning
a wage rate to them, the one dollar increment, by assigning
certain employees to those jobs, by subsequently eliminating
those jobs and doing so without affording the Union any notice
thereof and the opportunity to bargain concerning these posi-
tions. This initially occurred on or about September 22, 1997.
I find that the testimony of Union Representative Bevis and to
some extent Human Resource Representative Huddleston, par-
ticularly with respect to the identification of these exhibits and
with General Counsel’s Exhibits submitted in this case fully
supports this violation. Further, with respect to the change in
the radio policy, Bevis’ testimony that there had been a change
in this policy was not refuted. The Respondent offered only
testimony to justify the need for the change. The Respondent
did not give the Union notice of these changes and did not offer
to bargain with respect to these changes.
Further, with respect to paragraph 12 of the complaint, the
evidence submitted herein was that the Respondent did, in fact,
unilaterally move unit employees to new shifts and unilaterally
implement these shifts without affording the Union notice
thereof and an opportunity to bargain.
463
On or about December 18, 1997, the Union requested infor-
mation. It had requested information with respect to the trainer
position on December 8th and the requested for information
was not furnished regarding the information in the classifica-
tion status. The Union, also, about that time, requested the
Respondent’s current policy on substance abuse, current tuition
reimbursement policy and its current bereavement policy. And
since on or about December 18, the Respondent has failed to
furnish them.
The Union also requested information with respect to train-
ers. This was also not furnished by the Respondent. That was
on or about February 2, 1998,
Similarly on March 6, the Union made a request for informa-
tion with respect to shift movements and elimination of shifts
and this was also not furnished.
On January 28, the Respondent withdrew recognition from
the Union.
Conclusions of Law:
1.) Tocco, Inc is an employer within the meaning of Section
2(2)(6) and (7) of the Act.
2.) The International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, AFL-CIO is
a labor organization within the meaning of Section 2(5) of the
Act.
3.) Respondent violated Section 8(a)(1) and (5) of the Act
by:
A.) Its unilateral assignment of employees to trainer posi-
tions and its unilateral establishment of pay rates for those posi-
tions.
B.) By changing existing policies regarding employees’ use
of radios at their work stations.
464
C.) By its unilateral transfer of employees to different shifts
and its unilateral elimination of shifts.
D.) By its refusal about December 18, 1997 and thereafter to
furnish the Union with requested information with respect to its
training program and classification and status of trainers and
concerning the classifying of employees in accordance with its
proposal to declassify employees.4 And with its current policy
on substance abuse, its current policy on tuition reimbursement
and its current policy on bereavement.
E.) Its unlawful withdrawal of recognition from the Union on
or about January 28, 1998.
F.) Its failure to comply with the Union’s request for infor-
mation with respect to the trainer position on or about February
2, 1998.
G.) By not complying with a request for information from
the Union with respect to the implementation of shift changes
affecting the employees on or about March 6, 1998.
4.) The above unfair labor practices in conjunction with Re-
spondent’s status as an employer affect commerce within the
meaning of Section 2(6) and (7) of the Act.

4 Charging Party’s requested amendment to decision was granted as
requested infra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1286
Is there anything further before I close the hearing.
Yes.
MR. GIOLITO: Your Honor, I would just ask that you amend
your Decision to make clear that you concluded that the em-
ployer had violated Section 8(a)(5) of the Act by - - among
other things, refusing to provide information requested by the
Union on
465
December 18 and thereafter concerning the classifying of em-
ployees in conforming with its proposal to declassify employ-
ees.
JUDGE CULLEN: I will do so.
Additionally, I will enter an Order and I am going to order as
requested by the General Counsel that the employer rescind its
withdrawal of recognition from the Union.
That it bargain for a reasonable time.
And, that it provide the information requested by the Union.
And, that it rescind all unilateral changes and restore the
status quo.
I will enter a more formal Order, which will essentially in-
clude the transcript pages in which I have entered my Decision.
Now, I may modify that Decision somewhat for any grammati-
cal errors or if I see another case or something else that is rele-
vant, something that I believe that I have not covered, but you
can essentially rely on this being the Decision in this case.
At such time that I receive the transcript, I will review the
transcript notes and my notes and will modify the Decision, if
necessary, to that extent. However, I do not perceive any sub-
stantial modification other than that for grammatical errors or
some inadvertent error on my part.
The time for the filing of exceptions in this case will run
from the date that I actually implement that Formal Decision.
I believe that the transcript should be received by me in the
next ten days or so as I recall.
So, you can fairly well estimate that my Decision will proba-
bly be forthcoming in about a week or ten days after that or
shortly thereafter.
466
Is there anything further before I close the hearing in this
case?
MR. OVIATT: My I ask, Your Honor, will you enter that Or-
der the same day you send the Final Decision to us?
JUDGE CULLEN: The procedures; I will send the Final Deci-
sion out from this office, it then goes to the Board in Washing-
ton. They will actually issue it. It is not issued directly from
my office. There may be a slight delay of a few or several days
at the most, I would think.
MR. OVIATT: Okay.
JUDGE CULLEN: Anything further before I close the record in
this proceeding?
MS. HENDERSON: No, Your Honor.
MR. GIOLITO: No.
MR. OVIATT: No.
JUDGE CULLEN: Thank you.
(Whereupon, the hearing in the above entitled matter was
closed at 4:10 p.m. Central Standard Time)