UAW-DaimlerChrysler National Training Center

National Labor Relations Board - Board Decisions

Mar 9, 2004

341 N.L.R.B. 431 (N.L.R.B. 2004)

UAW-DAIMLER CHRYSLER NATIONAL TRAINING CENTER 431
UAW-DaimlerChrysler National Training Center and
Local 512, Office and Professional Employees
International Union, AFL–CIO. Case 7–CA–
46187
March 9, 2004
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
On December 4, 2003, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, UAW-
DaimlerChrysler National Training Center, Detroit,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
“(a) On request, meet and bargain collectively and in
good faith with the Union as the exclusive bargaining
representative of the unit. The unit is:

All full-time and regular part-time maintenance em-
ployees, secretarial employees, clerical employees,
mailroom employees, and janitorial employees em-
ployed by Respondent at its facility located at 2211
East Jefferson, Detroit, Michigan, but excluding guards
and supervisors as defined in the Act.”

2. Insert the following as paragraph 2(d) and reletter
the subsequence paragraphs.
“(d) Within 14 days of this Order, remove from its
files any reference to the unlawful, unilateral layoff of
Glenn “Alex” Winnie and, within 3 days thereafter, no-
tify him in writing that this has been done and that the
unlawful layoff will not be used against him in any way.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated 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 bene-
fit or protection
Choose not to engage in any of these protected
activities.

WE WILL NOT implement changes regarding the wages,
hours, and other terms and conditions of employment of
the bargaining unit, including layoffs, without prior no-
tice to the Union and without affording the Union an
opportunity to bargain with Respondent with respect to
its conduct and its effects on the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, on request, meet and bargain collectively and
in good faith with the Union as the exclusive bargaining
representative of the unit. The unit is:

All full-time and regular part-time maintenance em-
ployees, secretarial employees, clerical employees,
mailroom employees, and janitorial employees em-
ployed by us at our facility located at 2211 East Jeffer-
son, Detroit, Michigan, but excluding guards and su-
pervisors as defined in the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Glenn “Alex” Winnie full reinstatement to
his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Glenn “Alex” Winnie whole for any
loss of earnings and other benefits resulting from his
unilateral layoff, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days of the Board’s Order, remove
from our files any reference to the unlawful, unilateral
layoff of Glenn “Alex” Winnie and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the unlawful layoff will not be used against
him in any way.

UAW-DAIMLERCHRYSLER NATIONAL TRAINING CENTER

Judith A. Schulz, Esq., for the General Counsel.
Jerome Hill, Esq., of Detroit, Michigan, for the Respondent.
341 NLRB No. 51
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 432
John Strachan, of Lansing, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Detroit, Michigan, on October 1, 2003. The charge
was filed on April 30 and the complaint was issued on June 30,
2003.
On the entire record, including my observation of the de-
meanor 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, UAW-DaimlerChrysler National Training Cen-
ter (NTC), is a corporation operated jointly by the United Auto
Workers International Union (UAW) and the DaimlerChrysler
Corporation. Jim Davis, representing the UAW, and Frank
Slaughter, representing DaimlerChrysler, are codirectors of the
NTC. Respondent provides education and training for Daim-
lerChrysler employees who are represented by the UAW at its
facility in Detroit, Michigan. Respondent annually derives
revenues in excess of $500,000. NTC receives revenues in
excess of $50,000 from the performance of services for em-
ployees located outside the State of Michigan. NTC 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 512, Office and Professional Employees Interna-
tional Union, is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent NTC violated
Section 8(a)(5) and (1) of the Act in permanently laying off
Glenn “Alex” Winnie on April 11, 2003, without prior notice to
the Union and without affording the Union an opportunity to
bargain with Respondent regarding the layoff and its effects on
the bargaining unit.
The Union has represented certain employees at the NTC
since 1994. These employees were in a bargaining unit consist-
ing of all regular full-time secretarial, clerical, mailroom, and
janitorial employees. NTC and the Union entered into a collec-
tive-bargaining agreement in 2001 covering these employees
that expires in November 2004. After this agreement was
signed, the Board conducted a representation election and, on
December 13, 2001, certified that the Union could bargain for
NTC’s maintenance employees as part of the existing collec-
tive-bargaining unit. As of the date of certification there were
three maintenance employees in the unit.
In March 2002, Dave Smith, the maintenance supervisor, ap-
proached Glenn “Alex” Winnie, the maintenance employee
with the least seniority. Smith told Winnie that he learned that
Winnie and the other two maintenance employees could not
work on the building’s heating and cooling units without a
license, as they had been doing for several years. Prior to
March 2002, Smith and Winnie had apparently been under the
impression that the NTC maintenance employees could perform
such work under Smith’s license. After this conversation, the
work Winnie and other maintenance employees performed was
restricted to such tasks as painting, maintenance work on desks
and carpets, minor plumbing, and changing light bulbs.
The first bargaining session regarding a contract for the
maintenance employees occurred on July 30, 2002. The union
negotiating team consisted of John Strachan, the Union’s presi-
dent and executive director; Anthony Martinez, a clerical em-
ployee who is the chief union steward and Alex Winnie. At
this meeting a joint-employer/union committee was formed to
research the license issue. In October 2002, the committee met
with city of Detroit inspectors and on the basis of that meeting
concluded that an employee was required to have a license to
perform the heating and cooling work. On November 21, 2002,
John Strachan sent a letter to Respondent’s negotiators, Gil
Wojcik and Lisa Reinhardt-Kosal. In this letter Strachan pro-
posed that the three maintenance employees be included in the
collective-bargaining agreement covering the rest of the em-
ployees represented by the Union at NTC.
The second negotiating session did not occur until February
18, 2003. During this meeting, Gil Wojcik, one of Respon-
dent’s negotiators, stated that DaimlerChrysler was losing
money and was laying off employees. He then said that Re-
spondent was either considering or had considered layoffs. He
made no specific comments regarding which employees might
be laid off. After that meeting, the Union again proposed that
maintenance employees be covered by the existing collective-
bargaining agreement. That contract contains the following
provision:

The Center and the Union each agree only to require collec-
tive bargaining with respect to any subject matter specifically
required to be bargained by the terms of this Agreement, all
other matters not addressed specifically in this Agreement are
reserved to the Center’s right to manage and operate as refer-
enced in article 1, section 4.

In article 1, section 4, of the collective-bargaining agree-
ment, NTC retains the right to lay off employees. Article 9 of
the contract provides that the principle of seniority will govern
layoffs.
On March 28, 2003, Respondent’s human resources man-
ager, Ray Britnell, informed Alex Winnie verbally and in writ-
ing that, “You will be placed on layoff status effective at the
end of your regular shift on April 11, 2003.” Britnell also in-
formed the Union’s chief steward, Anthony Martinez, of the
layoff on March 28. Martinez did not ask Britnell for the op-
portunity to bargain about the layoff or its effects. However, he
immediately called Union President John Strachan.
Strachan called Jim Davis, the UAW codirector of the NTC.
Strachan’s uncontradicted account of the conversation is as
follows:

I told Jimmie that I had just found out that they were
laying him [Winnie] off, and I said, Jimmie you can’t do
that, and he said, yes, I can, I’ve checked with our counsel
and I’ve been told that we can do that. I said Jimmie,
you’re going to end up paying this man to sit home, and he
said, well, he’d rather do that than pay him to change light

UAW-DAIMLER CHRYSLER NATIONAL TRAINING CENTER 433
bulbs. So I said, Jim, you know, he can do more work
than that, and he said, look it’s a done deal, there’s nothing
to talk about, I can’t help you, and with that, I knew that, if
Jimmie wasn’t going to help me, I wasn’t going to get any
help from the employer. [Tr. 27.]

Davis is not a member of the NTC team negotiating with the
Union.1 However, given Strachan’s uncontradicted account of
this conversation, I find that Strachan would reasonably believe
that Davis was reflecting Respondent’s position and that he was
speaking and acting for management. Thus, I conclude that
Davis, when speaking with Strachan, was NTC’s agent. Com-
munity Cash Stores, 238 NLRB 265 (1978).2
Neither Strachan nor anyone else from the Union discussed
Winnie’s layoff with Frank Slaughter, the other codirector, any
members of the NTC contract negotiations team, or other repre-
sentatives of Respondent between March 28 and April 11. The
Union also did not raise the Winnie layoff at the third bargain-
ing session on April 28. Two days later, however, it filed an
unfair labor practice charge alleging that the layoff was illegal
due to its unilateral nature and because Winnie was laid off in
retaliation for his union activities. The complaint was issued
only on the basis of Respondent’s alleged failure to give the
Union an opportunity to bargain over the layoff. As of the date
of the instant hearing, October 1, 2003, the parties had yet to
reach agreement on a collective-bargaining agreement covering
the maintenance employees.
Analysis
Respondent’s decision to lay off Alex Winnie for economic
reasons is a mandatory subject of bargaining. Consequently,
NTC was required to provide notice to the Union and an oppor-
tunity to bargain concerning the decision to lay off this em-
ployee and the effects of that decision. Holmes & Narver, 309
NLRB 146 (1992).
Respondent argues that it provided sufficient notice to the
Union and an opportunity to bargain. However, NTC submits
that the Union waived its right to bargain over the layoff. For
the following reasons, I find that the Union did not waive its
bargaining rights.
To be effective, a waiver of statutory bargaining rights must
be clear and unmistakable. Waiver can occur in any of three
ways; by express provision in a collective-bargaining agree-
ment, by the conduct of the parties (including past practices,
bargaining history, and action or inaction), or by a combination
of the two. In a case where the parties have not yet concluded
their first collective-bargaining agreement, the Board decides
the waiver issue solely on the evidence of the parties’ conduct.
American Diamond Tool, 306 NLRB 570 (1992).
An employer cannot implement a change and then claim that
a union waived its right to bargain by failing to do so retroac-
tively. Intersystems Design Corp., 278 NLRB 759 (1986). “To
be timely, the notice must be given sufficiently in advance of
actual implementation of the change to allow a reasonable op-

1 Employer representatives at the February 18, 2003 bargaining ses-
sion were Gil Wojcik, Lisa Reinhardt-Kosal, Human Resources Man-
ager Ray Britnell, Attorney Jerome Hill, and James Palmer.
2 Davis did not testify in this proceeding.
portunity to bargain.” Ciba-Geigy Pharmaceuticals Division,
264 NLRB 1013, 1017 (1982). Respondent gave the Union 2
weeks’ notice before implementing the layoff of Winnie. As
did the Board in Gibbs & Cox, Inc., 292 NLRB 757 (1989), I
find that this was sufficient to allow the union a reasonable
opportunity to request bargaining.
Union President Strachan concedes that he did not request
the opportunity to bargain about the layoff when he talked to
Codirector Jim Davis. He also concedes that he didn’t request
bargaining over the Winnie layoff from any other management
representative. However, I conclude that Strachan did not
waive the Union’s bargaining rights due to the nature of his
conversation with Davis.
Fait Accompli
The General Counsel argues that Respondent, by Jim Davis,
presented the Union with a fait accompli on March 28, and
therefore the Union’s failure to request bargaining afterwards
does not constitute a waiver of its bargaining rights. The issues
of “fait accompli,” “request to bargain,” and “waiver” are re-
lated in the sense that a finding of fait accompli will prevent a
finding that a failure to request bargaining is a waiver. Pontiac
Osteopathic Hospital, 336 NLRB 1021, 1023–1024 (2001).
The fact that 2 weeks passed between the time that the Union
learned of the layoff and the effective date of the layoff is not
necessarily dispositive as to whether the Union’s failure to
request bargaining waived its statutory rights to do so. The
announcement of a unilateral change may constitute a fait ac-
compli that will not extinguish a union’s bargaining rights even
when the change is to be effectuated several weeks in the fu-
ture. An employer must at least inform the union of its pro-
posed actions under circumstances that afford a reasonable
opportunity for counterarguments or proposals. See Pontiac
Osteopathic Hospital, supra.
The critical matter in this case is Union President Strachan’s
conversation with Respondent’s codirector, Jim Davis. Davis
informed Strachan that he knew about the layoff and implied
that he had a role in this decision by telling Strachan that he had
checked with Respondent’s counsel as to the legality of the
layoff. Davis then told Strachan that the layoff was a “done
deal,” that there was nothing to talk about and that Davis
couldn’t help Strachan regarding the layoff.
In this context, it was reasonable for Strachan to conclude
that if UAW Codirector Davis regarded the layoff as a done
deal that there was no point in requesting bargaining from
Slaughter, the DaimlerChrysler codirector, or management
officials subordinate to Davis. I therefore find that Strachan’s
failure to request bargaining was excusable and was not tanta-
mount to a license for Respondent to make the unilateral
change. Pontiac Osteopathic Hospital, supra at 1024 fn. 2
(Former Chairman Hurtgen’s view).
The instant matter is distinguishable from the cases relied on
by Respondent: America Diamond Tool, supra, and Hartmann
Luggage Co., 173 NLRB 1254, 1255 (1968). In both of these
cases, the Board found that the union had waived its bargaining
rights. It did so in part because in contract negotiations the
unions had proposed giving management the right to effect
layoffs without their consent. However, in neither of these
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 434
cases did the Union take the affirmative step, after making such
proposals, to protest the employer’s unilateral layoff. I con-
clude that Strachan’s telephone call to Davis, protesting Win-
nie’s layoff, preserved the Union’s bargaining rights.
In the absence of the Union’s negotiating position at the Feb-
ruary bargaining session, Jim Davis would clearly be deemed to
have presented Strachan with a fait accompli regarding the
layoff. I conclude that no contrary result should be reached due
to the Union’s collective-bargaining proposals, which were
never accepted by Respondent.
Since Respondent, by Jim Davis, presented the Union with a
fait accompli, the Union did not waive its statutory bargaining
rights. Thus, Respondent violated Section 8(a)(5) in laying off
Glenn “Alex” Winnie on April 11, 2003, without affording the
Union an opportunity to bargain over this personnel action.
CONCLUSION OF LAW
Respondent violated Section 8(a)(5) and (1) by permanently
laying off Glenn “Alex” Winnie on April 11, 2003.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent, having unlawfully laid off an employee,
must offer him reinstatement and make him whole for any loss
of earnings and other benefits, computed on a quarterly basis
from date of discharge 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 recommended3
ORDER
The Respondent, UAW-DaimlerChrysler National Training
Center, Detroit, Michigan, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Implementing changes regarding the wages, hours, and
other terms and conditions of employment of the bargaining
unit, including layoffs, without prior notice to the Union and
without affording the Union an opportunity to bargain with
Respondent with respect to its conduct and its effects on the
bargaining unit.
(b) 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.

3 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.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, meet and bargain collectively and in good
faith with the Union as the exclusive bargaining representative
of the unit.
(b) Within 14 days from the date of this Order, offer Glenn
“Alex” Winnie full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(c) Make Glenn “Alex” Winnie whole for any loss of earn-
ings and other benefits suffered as a result of the unlawful uni-
lateral layoff in the manner set forth in the remedy section of
the decision.
(d) Preserve and, within 14 days of a request, or such addi-
tional 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 re-
cords, 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.
(e) Within 14 days after service by the Region, post at its fa-
cility in Detroit, Michigan, copies of the attached notice marked
“Appendix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 7 after being signed by the Re-
spondent’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 March 28, 2003.
(f) 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.

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”