Xidex Corp.

National Labor Relations Board - Board Decisions

Oct 20, 1989

297 N.L.R.B. 110 (N.L.R.B. 1989)

110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Microimage Display Division of Xidex Corporation
and Local 619, Allied Industrial Workers of
America, AFL-CIO. Cases 30-CA-9819, 30-
CA-9819-2, 30-CA-9819-3, and 30-CA-10021
October 20, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On February 21, 1989, Administrative Law
Judge Martin J Lmsky issued the attached deci-
sion The Respondent filed exceptions and a sup-
porting brief The General Counsel and the Charg-
ing Party each filed cross-exceptions and a brief in
support of cross-exceptions and in opposition to the
Respondent's exceptions The Respondent filed an-
swering briefs to the General Counsel and Charg-
ing Party's cross-exceptions
The National Labor Relations Board has delegat-
ed 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, 2 as modified below, and to adopt the
The Respondent and the General Counsel have excepted to some of
the judge's credibility findings The Board s established policy is not to
overrule an administrative law judge s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Or 1951) We have carefully examined the record and
find no basis for reversing the findings
2 We affirm the judge's conclusion that the Respondent violated Sec
8(a)(1) by announcing on December 1, 1987, that It was going to transfer
unit work to a nonunionized facility, with the resulting layoff of unit em-
ployees Contrary to the Respondent's argument in exceptions, this con-
clusion does not depend on the employees' reaction to that announce-
ment The announcement of the transfer of work from a unionized to
nonumonized facility for reasons of productivity and flexibility shown by
the record to be transparently baseless would reasonably tend to lead em-
ployees to infer that they were losing work and jobs as a result of their
support for the Union Rescission of the transfer decision a day after the
employees circulated a decertification petition only served to underscore
the coercive message Inherent in the original announcement of that deci-
sion
We affirm the judge's recommendation to dismiss the allegation that
the Respondent's July 8, 1988 notice to employees about their rights and
obligations as witnesses in the pending unfair labor practice hearing vio-
lated Sec 8(a)(1) We agree with the judge that J W Morten Co, 168
NLRB 435, 437 (1967), enf denied in relevant part 440 F 2d 455 (7th Cir
1971), relied on by the General Counsel, is distinguishable because the
notice in this case did not attribute pretnal communications by the Gen-
eral Counsel to 'union pressure tactics" Furthermore, the notice here in-
dicated that it was in response to employee Inquiries, did not misrepre-
sent the role of the Board, contained no remarks indicating that the Re-
spondent would look with disfavor on any employee who cooperated
with the Board, and did not make any false statement about employees
witness obligations See Clark Equipment Co, 278 NLRB 498, 518-519
(1986)
Member Higgins would find merit in the General Counsel's exceptions
that the Respondent violated Sec 8(a)(1) by stating in its January 21,
1988, letter to employees that "If a number of you do submit signatures
to the NLRB according to the union's request [to withdraw names from
the pending decertification petition], we will review the amended petition
and take what actions are appropriate under the circumstances" This
recommended Order, as modified and set forth in
full below
1 The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to
process two grievances to arbitration In excep-
tions, the Respondent asserts that it did not refuse
to arbitrate the grievances, but it did invoke its le-
gitimate right to question their arbitrability under
the parties' collective-bargaining agreement We
find merit in the Respondent's exceptions
On August 11, 1987, the Union notified the Re-
spondent that it was processing two grievances to
arbitration On September 8, 1987, the Federal Me-
diation and Conciliation Service mailed a list of po-
tential arbitrators for each of the two grievances
On September 30, 1987, the Respondent's industrial
relations manager, Marlene Zarling, sent letters to
the Union outlining the Respondent's position on
each grievance In each letter the Respondent ques-
tioned the arbitrability of the gnevance Zarling
concluded one of the letters by stating "I would
appreciate your prompt response to this letter I
feel that it is imperative that we resolve these
issues before proceeding further with this matter"
In the second letter Zarling concluded by stating,
"I would request that you go back to the contrac-
tual provisions I have referenced and review them
in light of this letter I believe that you will agree
with my position" On October 13, 1987, the Union
sent the Respondent a letter maintaining that the
grievances were arbitrable Sometime in mid-Octo-
ber to mid-November, Union President Ellen
Campbell told Zarling that the Union was ready to
pick arbitrators, but Zarling stated that the Re-
spondent was not ready No further conversations
took place between the parties concerning the arbi-
tration of these two grievances In a December 3,
1987 precomplamt position statement to the
Board's Region 30 office, the Respondent indicated
its willingness to arbitrate the grievances
The judge concluded that the Respondent violat-
ed Section 8(a)(5) and (1) of the Act by refusing to
submit these two grievances to arbitration, where it
would have been able to raise its defense of arbitra-
bility Contrary to the judge, we find that the Re-
statement crests a coercive impression of surveillance by indicating that
the Respondent has access to employee communications with the Board
and will know the identity of anyone who attempts to withdraw from the
decenficanon effort
Member Devaney would dismiss the allegation that the Respondent
violated Sec 8(a)(5) and (1) by changing the lunch period of some unit
employees for 2 days In doing so, he notes the insubstantial nature of the
change, the fact that It was in effect for only 2 days, that the change was
made by a low-level supervisor, without consultation with higher man-
agement, and at the suggestion of the employees Involved, pursuant to a
discussion of productivity not alleged as unlawful In such circumstances,
given the insubstantiality of the change and that It was quickly rescinded,
Member Devaney would find no violation
297 NLRB No 9
XIDEX CORP I I I
spondent's assertion of an arbitrability defense prior
to actual arbitration was clearly legitimate In this
regard, the Supreme Court has held that absent a
contract provision to the contrary, the question of
arbitrability is a threshold issue for judicial deter-
mination Although the issue also can be submitted
to and resolved by an arbitrator, a party raising the
arbitrability defense can be forced to arbitration
only if the reviewing court first finds that there is a
duty to arbitrate 3 Consequently, the Respondent
here, having clearly raised a contract-based arbitra-
'Nifty defense with respect to both gnevances,
cannot be said to have breached its statutory bar-
gaining obligation and violated Section 8(a)(5)
absent an outstanding judicial determination estab-
lishing a duty to arbitrate these specific grievances
The record does not indicate that the Union ever
sought such a ruling through the filing of a con-
tract action under Section 301 of the Act
Furthermore, at no time did the Respondent
refuse absolutely to arbitrate the two grievances at
issue Although it did raise the arbitrability defense
and delayed in the selection of an arbitrator for
each grievance, the Respondent never ruled out
the possibility of arbitration In fact, its December
3, 1987 communication to the Board indicated a
willingness to arbitrate
Finally, the Board has held that while a refusal
to arbitrate individual gnevances may constitute a
breach of contract, it is not per se an unfair labor
practice Only a wholesale repudiation of the arbi-
tration process constitutes a violation of Section
8(a)(5) 4 Not only was the Respondent's conduct
here less than an unqualified refusal to arbitrate the
two grievances, but it fell far short of a wholesale
repudiation of the arbitration process On the con-
trary, the Respondent's communications with the
Union discuss these gnevances within the parties'
overall contractual framework of arbitration and
do not indicate any departure from or rejection of
that framework
Based on the foregoing, we find that the Re-
spondent acted within its legal right to question the
arbitrability of the two gnevances before proceed-
ing to arbitration Accordingly, we ,find that the
Respondent's conduct did not violate Section
8(a)(5) and (1) of the Act
2 The judge found that the Respondent's single-
day transfer of prounion employee Cheryl Sa-
dowski on January 13, 1988, was de minimis con-
duct not warranting Board action The General
Counsel has excepted to the judge's failure to find,
and to recommend a remedy for, a violation of
'AT&T Technologies v CWA, 475 US 643 (1986)
4 Indiana & Michigan Electric Co, 284 NLRB 53 fn 7 and cases cited
(1987)
Section 8(a)(3) and (1) We find merit in the excep-
tions
Cheryl Sadowski had been employed in the ship-
ping department of the Hartford plant for 14 years
Her work involved some daily movement through-
out the plant Sadowski testified that she had talked
to employees about the Union and a circulating de-
certification petition, that she distributed union lit-
erature to employees, and that she passed out mem-
bership cards during the period from December 2,
1987, through January 12, 1988 On January 12, the
same day that the Respondent unlawfully with-
drew recognition from the Union, Sadowski was
notified she would be transferred the next day to a
different job, one that would not necessitate her
moving around the plant Sadowski's supervisor,
Cindy Moser, alleged that the change was due to
Sadowski's poor work performance and recent
complaints that the supervisor had received from
other employees concerning Sadowski's union ac-
tivities Three employees testified, however, that
they had not complained to any supervisor about
Sadowski's union activity Furthermore, the judge
found that "everyone was talking both on
duty and off duty" about the Union and the decer-
tification effort Sadowski also credibly testified
that she had never before been disciplined for poor
work performance nor was there an increase in the
number of errors in her work at the time of her
transfer After Sadowski and Union President
Campbell discussed the transfer with Moser, Sa-
dowski was transferred back to her former position
in the shipping department on January 14
The judge found that the alleged violation with
respect to Sadowski's single-day transfer was de
=minis and therefore warranted no Board action
We disagree Initially, we find, as the judge implic-
itly found, that the Respondent's alleged motiva-
tion for the transfer was a pretext for its real, dis-
cnminatory motivation to limit a vocal union pro-
ponent's access to her fellow unit employees This
conduct must be viewed in the context of the Re-
spondent's other unfair labor practices, specifically
including a simultaneous withdrawal of recognition
from the Union and an antecedent threat to trans-
fer unit employees' work to a nonumomzed facility
in order to undermine the Union Viewed in this
context, we find that even the single day's discnmi-
natory transfer of Sadowski was a substantial viola-
tion of Section 8(a)(3) requiring a traditional Board
remedy 5
5 Although there is no indication in the record that Sadowski suffered
any loss of wages or other benefits as a result of her transfer, the Issue
was not fully litigated Accordingly, we shall order the Respondent to
make her whole for any losses she may have suffered, leaving the deter-
mination of whether there were any such losses to the compliance stage
of this proceeding
1 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
AMENDED CONCLUSIONS OF LAW
Substitute the following as Conclusion of Law 6
"6 Respondent violated Section 8(a)(3) and (1)
of the Act by transferring Cheryl Sadowski from
her regular job on January 13, 1988, because of her
support for the Union"
AMENDED REMEDY
We shall order the Respondent to make Cheryl
Sadowski whole, with interest to be computed in
the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), for its unlawful dis-
criminatory transfer of her on January 13, 1988
We shall also order the Respondent to expunge any
reference to the discriminatory transfer of Sa
dowski from its files and to notify her that it has
done so and will not use the transfer against her in
any way Finally, we shall order the Respondent to
make employees whole for any loss of earnings and
other benefits suffered as a result of the unlawful
unilateral changes made on and after April 4, 1988,
with backpay to be computed as prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), with in-
terest as prescribed in New Horizons, supra 6
ORDER
The National Labor Relations Board orders that
the Respondent, Microimage Display Division of
Xidex Corporation, Hartford, Wisconsin, its offi-
cers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Unilaterally changing lunch breaks for its em-
ployees without giving prior notice and an oppor-
tunity to bargain to Local 619, Allied Industnal
Workers of America, AFL-CIO as the exclusive
bargaining representative of the Respondent's em-
ployees in an appropriate unit
(b) Threatening to transfer unit work to its non
unionized facility in order to undermine support for
the Union
(c) Transferring employees because of their sup
port for the Union
(d) Withdrawing recognition from the Union as
the exclusive bargaining representative of the Re-
spondent s employees in an appropriate unit
(e) Making or threatening to make unilateral
changes in the terms and conditions of employment
of its employees following an unlawful withdrawal
of recognition
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
8 The judge failed to Include such a make whole provision for the un
lawful unilateral changes in his recommended Order and notice
The Charging Party has excepted to the judge s failure to grant a Nisi
tatorial clause Under the circumstances of this case we find such a clause
unnecessary See Cherokee Marine Terminal 287 NLRB 1080 (1988)
of the rights guaranteed them by Section 7 of the
Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) On request, recognize and bargain in good
faith with the Union as the exclusive bargaimng
representative of the employees in the following
appropriate unit on terms and conditions of em
ployment and, if an understanding is reached,
embody the understanding in a signed agreement
All full-time and regular part-time production
and maintenance employees of the Microimage
Display Division of Xidex Corporation located
at 857 West State Street, Hartford, Wisconsin
53027, excluding full-time truck drivers, drafts-
men, and other engineering employees, office
and clerical employees, professional employ-
ees, guards, and supervisors as defined in the
Act
(b) Upon request of the Union, rescind changes
that the Respondent made unilaterally in the terms
and conditions of employment of its employees on
and after April 4, 1988, and maintain those reinstat-
ed terms and conditions of employment until such
time as the Respondent negotiates in good faith to
a new agreement or to impasse
(c) Make employees whole, in the manner set
forth in the amended remedy section of this deci-
sion, for any loss of earnings and benefits suffered
as a result of the Respondent s unlawful unilateral
changes in their terms and conditions of employ-
ment
(d) Make whole employee Cheryl Sadowski, in
the manner set forth in the amended remedy sec
tion of this decision, for any loss of earnings and
other benefits that may have resulted from her un-
lawful 1 day transfer on January 13, 1988
(e) Remove from its files any reference to the
unlawful transfer of Sadowski and notify her in
writing that this has been done and that the trans
fer will not be used against her in any way
(f) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of the
Order
(g) Post at its facility in Hartford, Wisconsin,
copies of the attached notice marked "Appendix "7
7 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 Nation
al 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
XIDEX CORP 113
Copies of the notice, on forms provided by the Re-
gional Director for Region 30, 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 customanly posted
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT unilaterally change lunch breaks
for our employees without giving prior notice and
opportunity to bargain to Local 619, Allied Indus-
tnal Workers of America, AFL-CIO as the exclu-
sive bargaining representative of employees in an
appropriate unit
WE WILL NOT threaten to transfer unit work to
our nonumonized facility at Iron Ridge, Wisconsin,
in order to undermine support for the Union
WE WILL NOT transfer employees because of
their support for the Union
WE WILL NOT unlawfully withdraw recognition
from the Union as the exclusive bargaining repre-
sentative of our employees in an appropnate unit
WE WILL NOT make or threaten to make unilat-
eral changes in the terms and conditions of em-
ployment of our employees following an unlawful
withdrawal of recognition
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their rights guaranteed in Section 7
of the National Labor Relations Act
WE WILL, on request, recognize and bargain
with the Union and put in writing and sign any
agreement reached on terms and conditions of em-
ployment for our employees in the bargaining unit
All full-time and regular part-time production
and maintenance employees of the employer
located at 857 West State Street, Hartford,
Wisconsin 53027, excluding full-time truck
drivers, draftsmen, and other engineering em-
ployees, office and clerical employees, profes-
sional employees, guards, and supervisors as
defined in the Act
WE WILL, on request of the Union, rescind those
changes we unilaterally made in the terms and con-
ditions of employment of our employees on and
after April 4, 1988, and WE WILL maintain those re-
instated terms and conditions of employment until
such time as we negotiate in good faith to a new
agreement or to impasse
WE WILL make employees whole for any loss of
earnings and benefits suffered as a result of the uni-
lateral changes that we made in their terms and
conditions of employment
WE WILL make whole employee Cheryl Sa-
dowski for any loss of earnings and other benefits
that she may have suffered as a result of her un-
lawful transfer on January 13, 1988
WE WILL notify Cheryl Sadowski that we have
removed from our files any reference to her trans-
fer on January 13, 1988, and that the transfer will
not be used against her in any way
MICROIMAGE DISPLAY DIVISION OF
XIDEX CORPORATION
Joyce Ann Seiser, Esq , for the General Counsel
Kelvin J Kinney, Esq and Charles W Pautsch, Esq , of
Milwaukee, Wisconsin, for the Respondent
Kenneth R Loebel, Esq , of Milwaukee, Wisconsin, for
the Charging Party -
DECISION
STATEMENT OF THE CASE
MARTIN J LINSKY, Administrative Law Judge On 4
November 1987, 4 December 1987, 14 January 1988, and
18 April 1988 charges in Cases 30-CA-9819, 30-CA-
9819-2, 30-CA-9819-3, and 30-CA-10021, respectively,
were filed against the Microimage Display Division of
Xidex Corporation (Respondent), by Local 619, Allied
Industrial Workers of America, AFL-CIO (Charging
Party or Union)
On 10 March 1988, the National Labor Relations
Board, by the Acting Regional Director for Region 30,
issued a consolidated complaint in Cases 30-CA-9819,
30-CA-9819-2, and 30-CA-9819-3 On 13 May 1988 the
National Labor Relations Board, by the Regional Direc-
114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tor for Region 30 issued a complaint in Case 30-CA-
10021 and by separate Order, consolidated for trial Case
9-CA-10021 with the consolidated complaint in Cases
30-CA-9819, 30-CA-9819-2 and 30-CA-9819-3 The
consolidated complaint as later amended alleges that
Respondent unlawfully withdrew recognition from the
Union after Respondent committed a series of unfair
labor practices which undermined support for the Union
and thereafter Respondent made unilateral changes in
the terms and conditions of employment of its employees
without giving prior notice and opportunity to bargain
to the Union
Respondent filed an answer in which it denied it vio
lated the Act in any way More specifically Respondent
claims it lawfully withdrew recognition on the basis of a
petition from its employees which reflected that 108 out
of 165 of its employees no longer wanted the Union to
represent them Respondent claims it was lawfully per
mined to make unilateral changes in terms and condi
tions of employment when its contract with the Union
expired some 3 months later
A heanng was held before me in Milwaukee Wiscon
sin, on 19 and 20 July 1988
On the entire record in this case to include posthear
mg briefs submitted by the General Counsel Respond
ent, and Charging Party and on my observation of the
demeanor of the witnesses I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent a corporation with offices and places of
business located in Hartford and Iron Ridge Wisconsin
is engaged in the manufacture and assembly of microgra
phic readers, reader printers, and accessories
During the calendar year ending 31 December 1987,
Respondent in the course and conduct of its business op
erations, sold and shipped from its Hartford and Iron
Ridge facilities products goods and materials valued in
excess of $50,000 directly to points located outside the
State of Wisconsin
Respondent admits and I find that it is now and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2) (6) and
(7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that the Union is now
and has been at all times material herein a labor organ'
zation within the meaning of Section 2(5) of the Act
Ill THE ALLEGED UNFAIR LABOR PRACTICES
A Background
For many years the Union represented employees who
worked at a plant in Hartford Wisconsin called Micro
Design which was owned by Bell and Howell In De
cember 1986 the Hartford plant was purchased by the
Xidex Corporation Xidex had another facility located in
Iron Ridge Wisconsin called Micron Iron Ridge is ap
proximately 12 miles from Hartford The same work
could be done at either the Hartford facility or the Iron
Ridge facility
The Hartford plant was owned by Xidex and had
165 000 square feet The Iron Ridge plant was leased by
Xidex and was considerably smaller in size, i e 60 000
square feet
As noted above the employees at the Hartford facility
were organized The employees at the Iron Ridge facility
were nonunion
At or about the tune Xidex purchased the Hartford fa
cflity from Bell and Howell Arthur Jones manager for
industrial relations at the Hartford facility, met with
John 0 Neil, a Xidex vice president for human resources
in Chicago Illinois 0 Neil told Jones that Xidex was in
terested in merging Hartford and Iron Ridge but did not
want the plant to be umonized 0 Neil and Jones talked
about the possibilities of decertification 0 Neil inquired
of Jones just how strong the Union was at the Hartford
facility Jones told him that about 40 percent of those eh
gible to be members of the Union were members 0 Neil
told Jones that he (0 Neil) was not interested in having
to negotiate a new collective bargaining agreement A
collective bargaining agreement it is noted was in effect
covering employees at the Hartford facility The agree
ment ran from 4 April 1985 to 3 April 1988 0 Neil told
Jones that a strategy would have to be worked out to
avoid having a new contract 0 Neil suggested possibly
negotiating to impasse 0 Neil told Jones that merger of
the two plants was the ultimate objective and noting
that wages were higher at Hartford than Iron Ridge
0 Neil wanted to transfer employees from Hartford
(union) to Iron Ridge (nonunion) and not the other way
around
Sometime later Jones met again with 0 Neil This time
they met at the Hartford facility itself 0 Neil reiterated
the points he made in Chicago to include that any trans
fer of personnel—because of higher wages at Hartford
(union)—would be from Hartford to Xidex s nonunion
facility in Iron Ridge
I credit Jones that 0 Neil said what Jones claims he
said Jones lost his job as a result of the Xidex purchase
of the Hartford facility He later applied for a job at that
same facility and was rejected Arguably Jones has a
motive to fabricate but also I suspect a motive to come
forth and tell the truth I believe him He was forthright
on the witness stand 0 Neil who is not with Xidex any
longer was not called as a witness nor was his absence
explained other than to note he was no longer an em
ployee of Xidex Jones credited testimony establishes
that Respondent wanted to get rid of the Union at the
Hartford facility and was thinking of a strategy to do
that
On 12 January 1988 Respondent withdrew recognition
of the Union This occurred after Respondent learned
that 108 of its approximately 165 unit employees had
signed a petition indicating that they no longer wanted
to be represented by the Union
It is alleged that Respondent engaged in a number of
unfair labor practices which undermined support for the
Union, i e, in August 1987 it bypassed the Union and
unilaterally made a change in the lunchbreak of some of
XIDEX CORP 115
its employees for a 2-day period, since 30 September
1987 it has refused to proceed to arbitration on two
grievances, it distributed antiunion literature to its em-
ployees, it temporarily removed a proumon employee
from her normal work area, and it threatened to move
unit work from its union facility to its nonunion facility
It is clear to me that the actions of Respondent, most es-
pecially the threat of removing unit work to Respond-
ent's nonunion facility, unlawfully undermined support
for the Union and so tainted the decertification petition
of Respondent's employees that Respondent _could not
rely on that decertification petition and claim it had a
good-faith reasonably grounded doubt of the Union's
continued majority support I will examine separately
each of the acts alleged in the consolidated complaint as
being an unfair labor practice and as undermining sup-
port for the Union
B Change in Lunchbreak
In August 1987 Supervisor Lyaime Collins met with
first-shift employees who worked on the paint line and
then with second:shift paint line employees Collins read-
ily admits she met with these union-represented employ-
ees, discussed ways to increase productivity with them,
and solicited their thoughts on the subject One of the
employees suggested that possibly the paint line employ-
ees instead of taking a 30-minute unpaid lunchbreak
could take a 15-minute paid lunchbreak Collins liked the
Idea and implemented the 15-minute paid lunchbreak in
lieu of the 30-minute unpaid lunch break It was in effect
for 2 days, 6 and 7 August 1987, and then Collins revert-
ed back to the old system because the employees did not
like the change
Collins readily admits these facts and acknowledges
that she at no time brought the matter of this change in
the lunchbreak—clearly a mandatory subject of collec-
tive bargaining—to the attention of the Union who rep-
resented the employees who worked on the paint line
She totally ignored the Union and unilaterally dealt di-
rectly with employees and, without giving prior notice
and opportunity to bargain to the Union, made i unilat-
eral change in a mandatory subject of collective bargain-
ing It is no defense to claim that since one of the em-
ployees whom she met with held a low-ranking position
in the Union, i e, sergeant at arms, that she did give
prior notice to the Union Indeed, on the day the lunch-
break was changed back Union President Ellen Campbell
came to see Collins Before the union president said a
word Collins said, "What did I do wrong now" She
knew what she did wrong
This action could not help but undermine support for
the Union and was a separate unfair labor practice in
violation of Section 8(a)(5) and (1) of the Act Van Dorn
Plastic Machinery, 286 NLRB 1233 (1986) Collins, by
her actions, was telegraphing to the employees that the
Union was irrelevant
C Failure to Proceed to Arbitration in Two Cases
In 1987 the Union filed two grievances, i e, E-205 and
E-216, which it sought to arbitrate On 11 August 1987
the Union informed Respondent of its desire to go to ar-
bitration on these two grievances and that it was request-
ing a panel of names of arbitrators from the Federal Me-
diation and Conciliation Service (FMCS) On 8 Septem-
ber 1987 the FMCS submitted panels of names from
which arbitrators could be selected for the grievances to
both the Union and Respondent
The issue in grievance E-205 involved job evaluation
and classification on the paint line and grievance E-216
involved the issue of a temporary layoff
By letters dated 30 September 1987 Respondent raised
the issue of arbitrability of the two gnevances in ques-
tion
By letter dated 13 October 1987 the Union reiterated
its request to select arbitrators and proceed to arbitra-
tion It claimed that both gnevances were proper dis-
putes for arbitration
Respondent did not respond to the Union's 13 October
1987 letter, and did not, at any time, indicate its willing-
ness to proceed to arbitration until charges were filed
with the National Labor Relations Board Respondent
then indicated in early December 1987 to representatives
of the Board (not the Union) that it would proceed to
arbitration on the grievances It did not communicate its
intent to arbitrate to the Union Earlier, in mid-Novem-
ber 1987 Union President Ellen Campbell asked Marlene
Zarlmg, Respondent's director of industrial relations,
when Respondent would pick arbitrators and Zarlmg,
said "we're not ready yet" That was the last word from
Respondent
Arbitrability is itself a subject of arbitration It is clear
that Respondent violated Section 8(a)(5) and (1) of the
Act by failing and refusing to proceed to arbitration,
where it would have been able to raise its defense of ar-
bitrability to the arbitrator Indeed, Respondent itself in-
troduced evidence to show it had raised the issue of arbi-
trability in the past before the arbitrator
This action by Respondent could not help but under-
mine support for the Union What kind of Union is it
that cannot even get the employer to arbitration? And I
note that one of the gnevances involves the evaluation
of jobs on the paint line whose employees had their
lunchbreaks changed unlawfully by Respondent in
August 1987 (see sec III,B, above)
Respondent is free to raise the issue of arbitrability but
it should raise it before the arbitrator and not use it as
means to repudiate its contractual obligation to arbitrate
D Respondent's Distribution of Antiunion Literature
to its Employees
On 12 January 1988 Respondent withdrew its recogni-
tion of the Union Prior to 12 January 1988 it is alleged
that Respondent violated Section 8(a)(1) of the Act and
undermined support for the Union when it distributed a
piece of literature (G C Exh 5) to its employees on 18
December 1987 This piece of literature, which was
given to employees at the same time they received their
Christmas bonus and was signed by Jim Westoby, gener-
al manager, stated that "First of all, I understand that
most of you have signed a petition to decertify the
union" and went on to say that any rumor that Respond-
ent would cut wages upon decertification was not true
116

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD_
It is alleged that this document showed Respondent's
knowledge of the decertification effort and thereby un-
dermined support for the Union
The testimony in the case reflects that it was common
knowledge to one and all that a decertification petition
had been circulated The evidence further reflects that
employee Marion Thorn, who solicited other employees
to sign the petition, mailed the petition to the Board on
29 December 1987 but that she had obtained virtually all
the signatures she ever got on the petition by 4 Decem-
ber 1987 Accordingly, I do not see how Respondent's
18 December 1987 distribution could have undermined
support for the Union and thereby taint the petition since
it was handed out long after the employees had signed
the petition I do not believe it constitutes a separate
8(a)(1) violation since most of its contents were known
to the employees and none of its contents were disputed
as being inaccurate
It is also alleged that Respondent violated Section
8(a)(1) of the Act by its distnbution of literature, dated
12 and 21 January, 18 February, and 2 and 24 June 1988,
which literature was received in evidence as General
Counsel's Exhibits 8-12, respectively I will not belabor
the record by reciting the contents of these exhibits
They are in the record and if there are exceptions filed
regarding this decision the parties can argue to the Board
whether or not this literature violates the Act or not
Suffice it to say this literature, I believe, is protected
under Section 8(c) of the Act The Respondent, without
threat of reprisal or force or unlawful promise of benefit,
reiterates in this literature which was either handed out
to its employees or posted that it believes the employees
would be better off without the Union and that Respond-
ent is in favor of a decertification election since a majori-
ty of the employees signed a petition saying they no
longer wanted to be represented by the Union
•
E Removal of Employee Cheryl Sadowski from Her
Normal Job for 1 Day
Cheryl Sadowski worked in the shipping department
In her position she moved around the plant a lot Be-
tween 2 December 1987, when a petition began being
circulated around the facility seeking to decertify the
Union, and 12 January 1988, when Respondent notified
the Union that based on that petition it was withdrawing
its recognition of the Union, Sadowski was vocally
prounion during the day as she made her rounds of the
facility She spoke out on behalf of the Union and
against decertification both on and off duty She was not
alone in talking about the Union and the decertification
petition since the subject of the Union and the decertifi-
cation petition was a hot item and, as I gather from the
evidence, everyone was talking about it both on duty
and off duty
On 12 January 1988 leadperson Helen Lear, on the au-
thonty of Supervisor Cindy Moser, told Cheryl Sa-
dowski that she would be switching jobs effective the
next day, 13 January 1988 Sadowski was going to a po-
sition where she would not be circulating throughout the
plant as she did in her old job There is no evidence that
her hours, pay, or benefits would change Sadowski later
learned from Cindy Moser that she was transferred be-
cause she was talking about the Union and employees
were complaining about it and because she messed up
some orders Sadowski credibly claimed she messed up
no more orders in the period immediately preceding her
transfer than she had throughout her 14-year career with
Respondent Sadowski inquired of her fellow employees
if they had complained about her They said they may
have mentioned that she talked about the Union a lot but
they were not complaining about it
Sadowski informed Union President and fellow em-
ployee Ellen Campbell about her transfer Both women
spoke with Cindy Moser on 13 January 1988 Sadowski
was told that the very next day she would be returned to
her old job and she was
This incident can not be held to taint the decertifica-
tion petition since it occurred subsequent to the petition
being sent to the Board on 29 December 1987 As far as
it being another violation of Section 8(a)(1) of the Act it
appears to me to be de minims Sadowski was in the
other job for just 1 day and was told of her transfer just
the night before so it is not as if she was worrying about
the transfer for any significant period of time Hence, I
find no violation of the Act sufficient to warrant any
action As soon as Sadowski and Union President Camp-
bell met with Moser and complained about the transfer,
the transfer' decision was reversed, and Sadowski re-
turned to her former position See PA Inc, 259 NLRB
833 (1982)
F Threat to Remove Unit Work from Respondent's
Union Facility to its Nonunion Facility
This is the most serious allegation in the consolidated
complaint and would tend to so undermine support for
the Union that standing alone it so taints the decertifica-
tion petition that I must conclude that Respondent un-
lawfully withdrew recognition of the Union since all it
relied on in withdrawing recognition was the tainted de-
certification petition
The threat of loss of job is undoubtedly the worst
threat of all
One of the production areas at Respondent's Hartford
facility was the PDM department PDM stands for
Power Drawer Module The department had approxi-
mately 22 or 23 employees
During 1987 several work areas were transferred from
the large unionized Hartford facility to the smaller non-
unionized Iron Ridge facility These transfers of work
are not alleged as violative of the Act However, with
regards to the proposed transfer of the PDM work, it is
alleged to be violative of the Act and I concur complete-
ly
On 25 November 1987 there was a meeting of manag-
ers and supervisors of the Hartford facility At this meet-
ing it was announced that the PDM department work
was being transferred to Iron Ridge, the exact date was
not firm as yet but the move would be made within the
month, and that there would be layoffs based on seniori-
ty, i e, the 22 or 23 people in PDM would not necessari-
ly lose their jobs but 22 or 23 people in the Hartford fa-
cility would lose their jobs and many would switch into
new jobs The move was being made supposedly because
XIDEX CORP 117
of greater productivity and flexibility at the Iron Ridge
facility The supervisors were told that they could tell
their employees about the move
Supervisor Lyanne Collins gathered her employees, to
include those in the PDM department, together on 1 De-
cember 1987 and told them about the move When asked
why was PDM being moved Collins told the employees
it was because of better productivity and flexibility at
Iron Ridge and because the employees at Iron Ridge ap-
peared to have a better work ethic She told the assem-
bled employees that the move would take place within 1
month (which would be right around Chnstmastime) and
that there would be layoffs (Merry Christmas)
On 2 December 1987—the very next day—leadperson
Marion Thorn and two other employees asked to have a
meeting with Director of Operations Tom Persha They
met with Persha and told him that they wanted to know
how to get rid of the Union Persha called in Marlene
Zarling, director of industrial relations Zarling gave
Thorn—who became spokesperson for the three employ-
ees—the telephone number for the local office of the Na-
tional Labor Relations Board Thorn called the Board,
was told how a decertification petition should be
worded, and that very day began circulating the petition
among her fellow employees Thorn asked the employees
to sign the petition in order to save their jobs In time
Thorn got 108 signatures of employees on the petition
Most of those signatures she got within a day or two of
circulating the petition
By 3 December 1987 there was another meeting of
management and supervisors Tom Persha, director of
operations, tolls the group that the PDM move is being
temporarily put on hold and that they are free to say so
to their employees
On 3 December 1987 the employees are told that the
PDM move is being canceled
Eventually, on 29 December 1987, Thorn sent the de-
certification petition with the signatures of 108 out of
165 unit employees on it to the Board
On 12 January 1988 Respondent notified the Union
that it is withdrawing recognition of the Union but will
honor its contract with the Union until its expiration date
of 3 April 1988
The evidence is crystal clear that on 1 December the
employees were told that PDM would move and em-
ployees would be laid off, on 2 December a decertifica-
tion petition was circulated among the employees during
work hours,' and on 3 December—after many employ-
ees have signed the petition 2—the employees were told
that the PDM move is being put off
I credit the testimony of employees Bonnie Kirsch and
Alice J Schatz who testified that they were told on 3
December that the PDM move was off Kirsch was quite
clear, 1 December (bad news), 2 December (petition), 3
December (good news) Also, on 2 December when the
'Most of the people who signed the petition did so by 4 DeceMber It
was sometime on 4 December that a notice is posted by Respondent
saying that the petition should not be circulated during work hours or in
work areas
2 Marion Thorn, who circulated the petition, testified that approxi-
mately one-half of all the signatures she ever got she got the very first
day the petition was circulated
petition was being circulated, Alice Schatz, who worked
in the MC-1000 bond area along with 34 other employ-
ees, asked her supervisor, Cindy Moser, if the MC-1000
bond area work would also be moved to Iron Ridge and
Moser answered that it would be moved sometime after
the PDM work was moved Schatz not only signed the
decertification petition but circulated it in her depart-
ment During this tumultuous 3-day period Schatz credi-
bly testified that employees were upset and there were
some tears shed Union President Ellen Campbell credi-
bly testified that she saw some of her fellow employees
close to tears
Supervisor Lyanne Collins and Director of Operations
Tom Persha testified that the PDM move was not called
off until later than 3 December 1987 but I find from the
credible evidence that the employees were told the move
was being put off on 3 December and not later Collins
thought the move was called off within 2 weeks of 1 De-
cember and Persha thought it wag called off on 7, 8, or
9 December after receipt of some large orders
Persha had to say the move was called off on 7, 8, or
9 December because it was in that timeframe that he first
became aware of some big orders I believe he fixed on
dates later than 3 December simply because it is more
convenient to do so The employees, I find, were told
the PDM move was being put off on 3 December The
move was obviously called off because of the circulation
of the decertification petition The circulation of which
could have been predicted when employees are told just
weeks before Christmas that unit work is being trans-
ferred and there will be layoffs among their number
Subsequent events are very interesting and not in dis-
pute In point of fact after Respondent withdrew recog-
nition of the Union neither PDM nor any other work at
the Hartford facility was moved to Iron Ridge In fact,
most of the work at the smaller, leased Iron Ridge facili-
ty was transferred to the larger, owned Hartford facility
Indeed, fully one-half of the work at Iron Ridge had
been transferred to Hartford by the time of the hearing
in this case and Respondent planned on transferring the
rest of the work to Hartford and completely vacating the
Iron Ridge facility
While Tom Persha and others spoke of better produc-
tivity at Iron Ridge being the reason for the proposed
move of PDM and other units to Iron Ridge not a single
production record or document was introduced into evi-
dence to support that assertion It is interesting to note
that General Counsel's Exhibit 5, which was given to
Hartford employees on 18 December 1987 when they re-
ceived their Christmas bonuses, stated
Please accept the enclosed certificate as some rec-
ognition of our appreciation for your hard work
during this past year As we look back we feel a
sense of pride and accomplishment about what we
have achieved in 1987 Orders fluctuated but were
generally strong Throughout the year, our employ-
ees pitched in to help meet our customer demand
and turn out a quality product
That does not sound like employees who are unpro-
ductive, inflexible, or have a bad work ethic It is my
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
'conclusion that the decertification petition was fatally
flawed and tainted by Respondent s unfair labor practices
of unilaterally changing the lunchbreak without giving
prior notice to and opportunity to bargain to the Union,
by failing and refusing to process two grievances to arbi
tration and by threatening to transfer unit work and lay
off employees Before an employer may withdraw its
recognition of the Union it must have a reasonable good
faith doubt of the Union s continued majority support
and it must have that doubt in an atmosphere free of
unfair labor practices See Chicago Magnesium Castings
256 NLRB 668 674 (1981) That is clearly not the case
here If Respondent s unfair labor practices induce the
decertification petition to be circulated as is clearly the
case here Respondent can not rely on the petition as evi
dence of the Union s loss of majority support See Hearst
Corp 281 NLRB 764 (1986)
Since Respondent unlawfully withdrew recognition it
was without legal right to unilaterally make the changes
in terms and conditions of employment that it made on 4
April 1988, when its contract with the Union expired
namely
(1) Modified article VI of the expired agreement by
(a) Reducing the maximum time for disability
leaves of absence from six (6) months to four (4)
months
(b) Eliminating leaves of absence for Union busi
ness
(c) Reducing and/or eliminating employees
rights to permanent transfer back to his/her previ
ous job
(2) Eliminated the provisions of article VIII of the ex
pired agreement which provided for a grievance and ar
bitration procedure and provided its own Employee
Appeals Procedure i
(3) Eliminated the provisions of article XIV of the ex
pired agreement which provided for certain insurance
coverage and provided different insurance coverage
(4) Eliminated the use of sick days under article XVI
of the expired agreement as personal leave days
(5) Eliminated the negotiated attendance policy and
substituted its own attendance program
Nor was Respondent lawfully permitted to inform its
employees as it did on 4 April 1988 that it would make
other future changes in its unit employees terms and
conditions of employment 3
REMEDY
Respondent should recognize the Union and bargain
with it on demand cease and desist from its unlawful ac
3 Respondent posted a notice dated 8 July 1988 11 days before the
hearing in this case I do not believe It violates the Act It is in the
record as G C Exh 24 and Informs employees of their nghts as wit
nesses I do not believe this notice is violative of Sec 8(a)(1) as the Gen
eral Counsel suggests citing J W Mortell Co 168 NLRB 435 437
(1967)
tivities post a notice and rescind if requested by the
Union those unilateral changes it made in the terms and
conditions of employment of its employees I will not
order certain additional specific relief requested by the
Union in its brief i e I will not order that Respondent
reinstate all employees discharged since 4 Apnl nor will
I order that Respondent pay to the Union an amount of
money equal to the amount of dues checkoff the Union
would have received if the contract which expired on 3
April 1988 was still in effect It is too speculative to sug
gest that discharged employees would not have been dis
charged if a grievance arbitration clause was in effect
and dues checkoff does not survive the expiration of the
contract providing for same
CONCLUSIONS OF LAW
1 The Respondent, Microimage Display Division of
Xidex Corporation is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union, Local 619 Allied Industrial Workers of
America AFL-CIO a labor organization within the
meaning of Section 2(5) of the Act
3 At all material times the Union has been the desig
nated and recognized exclusive collective bargaining rep
resentative of the Respondent s employees described in
its most recent collective bargaining agreement as
All full time and regular part time production and
maintenance employees of the employer located at
857 West State Street Hartford Wisconsin 53027,
excluding full time truck drivers draftsmen, and
other engineering employees office and clerical em
ployees professional employees, guards, and super
visors as defined in the Act
4 When Respondent unilaterally changed lunchbreaks
for employees on the paint line in August 1987 without
giving prior notice and opportunity to bargain to the
Union it violated Section 8(a)(5) and (1) of the Act
5 When Respondent threatened to move the PDM
work from its unionized facility to its nonumonized facil
ity in order to undermine support for the Union it violat
ed Section 8(a)(1) of the Act
6 When Respondent unlawfully failed and refused to
process two grievances to arbitration it violated Section
8(a)(5) and (1) of the Act
7 When Respondent withdrew recognition from the
Union the Respondent violated Section 8(a)(5) and (1) of
the Act
8 When Respondent after it unlawfully withdrew rec
ogmtion of the Union unilaterally made changes in
terms and conditions of employment of its employees
and threatened more changes it violated Section 8(a)(5)
and (1) of the Act
9 The above violations of the Act are unfair labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
[Recommended Order omitted from publication ]