Peat Manufacturing Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peat Manufacturing Company and Produce, Refrig- erated & Processed Foods & Industrial Work- ers, Local 630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 21-CA-19568 April 21, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On September 23, 1981, Administrative Law Judge Gordon J. Myatt issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, 3 as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- 'Chairman Van de Water and Member Hunter agree that Respondent violated Sec. 8(aX5) and (1) of the Act by failing to notify the Union and affording it an opportunity to bargain regarding its decision to lay off employee John Taylor. In so doing, they note that for institutional rea- sons they accept the Board's findings in Peat Manufacturing Company, 251 NLRB 1117 (1980), as the law of that case although they did not participate in rendering that decision. ' The Administrative Law Judge found that Respondent had violated Sec. 8(aX5) and (1) of the Act by failing to notify the Union and give it an opportunity to bargain about the layoff of unit employee John Taylor. Respondent argues that the Union should be estopped from singling out the layoff of this one employee when Taylor was laid off in the middle of a series of layoffs and the Union had never requested that Respondent bargain about the previous layoffs and did not request that Respondent bargain about the Taylor layoff after it occurred. The legality of the other layoffs is not at issue here. With regard to the Taylor layoff, it is clear that Respondent faded to fulfill its initial responsibility to notify the Union and to offer to bargain prior to implementing the layoff. Hence the Union, when it became aware of the layoff, was presented with a fait ac- compit, making a request to bargain about it a futile and unnecesssary ges- ture. L E Davis d/b/a Holiday Inn of Benton, et al., 237 NLRB 1042, 1044 (1978); Alfred M. Lewis, Inc. v. N.LR.B., 587 F.2d 403 (9th Cir. 1978), enfg. 229 NLRB 757 (1977). Moreover, Respondent has generally refused to recognize or bargain with the Union until a court of appeals enforces a prior Board Order directing Respondent to do so. See 251 NLRB 1117 (1980). In these circumstances, it would have been a futile gesture for the Union specifically to request bargaining about the Taylor layoff. See GAF Corporation, 218 NLRB 265, 266 (1975); B F. Goodrich Company, ct at, 250 NLRB 1139, 1140 (1980). See also Sunnyland Refin- ing Company, Inc., 250 NLRB 1180, fn. 3 (1980). 'In accordance with his dissent in Olympic Medical Coporation, 250 NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. fied below, and hereby orders that the Respondent, Peat Manufacturing Company, Norwalk, Califor- nia, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: 1. Insert the following at the end of paragraph 2(b): "in the manner set forth in the section of this Decision entitled 'The Remedy."' 2. Insert the following as paragraph 2(e): "(e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith." DECISION STATEMENT OF THE CASE GORDON J. MYATT, Administrative Law Judge: Upon a charge filed on September 19, 1980, and a first amend- ed charge filed on October 24, 1980, by Produce, Refrig- erated & Processed Foods & Industrial Workers, Local 630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereafter called the Union), against Peat Manufacturing Company (here- after called the Respondent), the Regional Director for Region 21 issued a complaint and notice of hearing on October 30.1 The complaint alleged, inter alia, that since May 19, 1977, the Union has been the exclusive bargain- ing representative of Respondent's employees in an ap- propriate unit. Further, since October 2, 1980, the Union has requested that the Respondent furnish it with certain information considered relevant to the performance of its function as the collective-bargaining representative, and the Respondent has refused to do so. The complaint also alleged the Respondent laid off employee John H. Taylor, on or about May 2, without giving prior notice to the Union or affording it an opportunity to bargain with respect to the layoff, and refused to recall Taylor thereafter. Finally, the complaint alleged that Taylor was laid off and not recalled because he appeared as a wit- ness for the General Counsel in a prior case involving the Respondent and because he engaged in union or other protected concerted activity. It was alleged that by this conduct, the Respondent violated Section 8(aX)(1), (3), (4), and (5) of the National Labor Relations Act, as amended, 29 U.S.C. 151, et seq. (hereafter called the Act). The Respondent filed a timely answer admitting certain allegations of the complaint, denying others, and specifically denying the commission of any unfair labor practices. A hearing was held on this matter on July 9, 1981, in Los Angeles, California. All parties were represented by counsel and afforded full opportunity to examine and cross-examine witnesses and to present material and rele- vant evidence on the issues. At the beginning of the hearing, counsel for the General Counsel advised that on July 6, 1981, the Regional Director issued an order ap- ' Unless otherwise indicated, all dates herein refer to the year 1980. 261 NLRB No. 26 240 PEAT MANUFACTURING COMPANY proving the Union's request to withdraw the charges which provided the basis for the allegations that Taylor was laid off in violation of Section 8(aXI), (3), and (4) of the Act, as well as the charges supporting the allegation that the Respondent refused to provide the Union with certain information in violation of Section 8(aX1) and (5) of the Act. In his order, the Regional Director dismissed all portions of the complaint pertaining to these allega- tions.2 As a consequence, the only issue remaining in the case for litigation is the allegation that the Respondent laid off Taylor without notifying the Union and afford- ing it an opportunity to negotiate and bargain with re- spect to the layoff. Upon the entire record in this case, including my ob- servation of the witnesses and their demeanor while testi- fying, I make the following: FINDINGS OF FACT I. JURISDICTION The Respondent, Peat Manufacturing Company, is, and has been at all times material herein, a corporation engaged in the manufacture and distribution of zinc and aluminum die casting and plastic injection molding. The Respondent's facility involved herein is located in Nor- walk, California. In the course of its business operations, the Respondent annually sells and ships goods and prod- ucts valued in excess of $50,000 directly to customers lo- cated outside the State of California. The pleadings admit, and I find, that the Respondent is an employer en- gaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Produce, Refrigerated & Processed Foods & Industrial Workers, Local 630, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. Preliminary Discussion Official notice is taken here of the Board's Decision and Order issued on August 27, 1980, in a prior case in- volving the Respondent and the Union.3 Although the complaint in the instant case alleges the Union is the ex- clusive bargaining representative of the employees in an appropriate unit, the Respondent's answer denies this. Having taken official notice of the Board's decision in the prior case, the Respondent's denial is hereby reject- ed. Accordingly, I find the unit set forth below to be ap- propriate and the Union to be the exclusive representa- tive for purposes of collective bargaining for all of the employees in that unit. ' See G.C. Exh. I(h). ' Peat Manufacturing Company, 251 NLRB 1117. On December 22, the General Counsel made application for enforcement of the Board's Order with the United States Court of Appeals for the Ninth Circuit. (G.C. Exhs. 2 and 3). On December 31, the Court of Appeals docketed the case (see G.C. Exh. 4) and at the time of the hearing herein, the case was still on the court's docket pending decision. The appropriate unit for purposes of collective bar- gaining is: All production and maintenance employees includ- ing trainees, inspectors, plant clerical employees, janitors, shipping and receiving employees, truck drivers, leadmen and working foremen employed by Peat Manufacturing Company at its facility located at 10700 East Firestone Boulevard, Norwalk, Cali- fornia, but excluding all other employees, office clerical employees, professional employees, techni- cal employees, guards and supervisors as defined in the Act. B. The Layoff of Taylor The testimony given and the evidence introduced in this case is not in any substantial conflict. Taylor testi- fied, and the Respondent admitted, that he was laid off on May 5.4 A list was provided by the Respondent, in response to a subpena, showing the number of employees laid off in 1980. This list was introduced into evidence as General Counsel's Exhibit 6 and Taylor's name appears thereon.5 Testimony by the Respondent's plant manager, William Mueller, clearly establishes that the Respondent did not notify the Union of Taylor's layoff, neither prior to the event nor subsequent thereafter. Robert W. Ruby, business agent of the Union, testified he learned of Tay- lor's layoff from the employee the evening after it oc- curred. Ruby testified that at no time were any of the union representatives notified by Respondent's officials that Taylor would be laid off. Mueller testified that while the Respondent never told the union representatives that Taylor would be laid off, he felt they should have been aware that the Respondent would have to lay off employees for business reasons. According to Mueller, because the Respondent was a supplier of parts for automobile wheels and there was an economic slowdown in the automotive industry, it was common knowledge that layoffs were occurring at the Respondent's facility. Nevertheless, Mueller acknowl- edged that he never called the union representatives or instructed anyone from the plant to notify the union rep- resentatives of any layoffs, including the layoff of Taylor. Concluding Findings The sole issue in this case is whether the Respondent was under a duty to notify the Union, as the exclusive bargaining representative, of the decision to lay Taylor off on May 5 and to afford the Union an opportunity to bargain about that decision. If such a duty existed under the Act, then, even under the narrow set of facts pre- sented here, the Respondent has violated Section 8(aX5) and (1) of the Act. ' Although the complaint recites "on or about May 2," the precise date of the layoff was established as May 5. ' While the list reveals that a number of other employees were also laid off by the Respondent during 1980, the only issue raised by the complaint and treated here is the layoff of Taylor. 241 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent's defense seems to be primarily grounded on the theory that since it is resisting the Board's order in the prior case directing it to resume rec- ognition of and bargain with the Union, as the repre- sentative of the unit employees, there is no current duty to continue bargaining with the Union until a final ruling is made by the court. This argument is unsound and based on fallacious reasoning. It is well settled that col- lateral litigation does not suspend the duty to bargain under Section 8(a)(5). John Cuneo, Inc., 257 NLRB 551 (1981); Montgomery Ward & Co., Inc., 228 NLRB 1330 (1977); Metropolitan Petroleum Company of Massachusetts, Div. of Pittston Company, 216 NLRB 404 (1975). As the Board observed in the Cuneo case: Indeed, Section 10(g) of the Act provides that the commencement of proceedings under Section 10(e) or (f), which provide for court review of Board orders, "shall not, unless specifically ordered by the court, operate as a stay of the Board's order." Therefore, the claim that the Respondent has no obliga- tion to bargain with the Union until the Ninth Circuit acts on the Board's request for enforcement of its order in the prior case must be rejected out of hand. This poses the crucial question of whether there exist- ed a duty to notify and afford the Union an opportunity to bargain regarding the layoff of Taylor. Here again the case law is settled. In a recent case where a union won a Board-conducted election, and the employer filed objec- tions which were pending final determination, the em- ployer laid off employees for I day without notice to or bargaining with the union. There, the Board held that "[a]lthough an employer may properly decide that an economic layoff is required, once such a decision is made the employer must nevertheless notify the Union, and, upon request, bargain with it concerning the layoffs, in- cluding the manner in which the layoffs and any recalls are to be effected." Clements Wire & Manufacturing Company, Inc., 257 NLRB 1058 (1981). The Board held that by failing to do so while the objections to the elec- tion were pending, the respondent acted at its peril and, since the union was thereafter certified as the collective- bargaining representative of the employees, the respond- ent violated Section 8(aX5) and (1) of the Act. Id. This same proposition has been stated by the Board in previ- ous cases. See, for example, Hillcrest Furniture Manufac- turing Co., Inc., 253 NLRB 72 (1980); Mike O'Connor Chevrolet-Buick-GMC Co., Inc., and Pat O'Connor Chev- rolet-Buick-GMC Co., Inc., 209 NLRB 701, 703-704 (1974). Thus, if an employer violates the Act by failing to notify a union of a unit layoff and affording it an oppor- tunity to bargain regarding that decision, where the union recently won an election to which objections were pending and it was subsequently certified, the conduct in the instant case must be considered equally violative of the Act. In the case before the Ninth Circuit for enforce- ment, the Board found the Respondent unlawfully with- drew recognition of the Union as the collective-bargain- ing representative and ordered it to recognize and, upon request, bargain with the Union. Hence, the Union's rep- resentative status here never ceased to exist at the time Taylor was laid off. There can be no question that the layoff of unit employees without notifying and affording the collective-bargaining representative an opportunity to bargain regarding such action is a unilateral change in the terms and conditions of employment which violates Section 8(a)5) of the Act. Clements Wire & Manufactur- ing Company, Inc., supra, Master Slack and/or Master Trousers Corp., and Hardeman Garment Corp., and More- house Garment Corp, and Lauderdale Garment Corp., and Labelville Garment Corp., 230 NLRB 1054 (1977). Since the pending enforcement proceeding in the prior case does not operate to stay the Board's Order, the Respond- ent here has effected a unilateral change without com- plying with its bargaining obligation to the Union. John Cuneo, Inc., supra, Montgomery Ward & Co., Incorporated, supra. Nor does the fact that, in the limited circum- stances of this case, the layoff relates to only one unit employee alter the Respondent's duty to the collective- bargaining representative. The duty to notify and afford the Union an opportunity to bargain remains the same whether one employee or more than one employee is in- volved in the layoff. Cf. Bay State Gas Company, 253 NLRB 538 (1980) (where the employer was held to vio- late the Act by eliminating a single job without notifying or bargaining with the union). Accordingly, I find the Respondent here has violated Section 8(a)(5) and (1) of the Act by failing to notify the Union of its decision to lay off an employee on May 5 since this conduct had the effect of bypassing, undercutting, and undermining the Union's status as the exclusive representative of the em- ployees. CONCLUSIONS OF LAW 1. The Respondent, Peat Manufacturing Company, is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Produce, Refrigerated & Processed Foods & Indus- trial Workers, Local 630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. The above-named labor organization has been, and is now, the exclusive representative of all of the employ- ees in the unit described below for purposes of collective bargaining within the meaning of Section 9(a) of the Act: All production and maintenance employees includ- ing trainees, inspectors, plant clerical employees, janitors, shipping and receiving employees, truck drivers, leadmen and working foremen employed by Peat Manufacturing Company at its facility located at 10700 East Firestone Boulevard, Norwalk, Cali- fornia, but excluding all other employees, office clerical employees, professional employees, techni- cal employees, guards, and supervisors as defined in the Act. 4. By failing to notify the Union and to afford it an opportunity to bargain regarding the decision to lay off 242 PEAT MANUFACTURING COMPANY employee John Taylor on May 5, 1980, the Respondent has violated Section 8(a)(5) and (1) of the Act. 5. The above conduct constitutes an unfair labor prac- tice affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has committed an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act, it shall be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Since it was established at the hearing that Taylor has since been recalled by the Respondent, the Respondent shall be ordered to make this employee whole for any loss of pay he has suffered by reason of the Respondent's unlawful conduct during the period of his layoff. Back- pay shall be computed in the manner set forth in F W. Woolworth Company, 90 NLRB 289 (1950), with interest to be computed thereon in the manner set forth in Flor- ida Steel Corporation, 231 NLRB 615 (1977).6 Upon the foregoing findings of fact, conclusions of law, the entire record in this case, and pursuant to Sec- tion 10(c) of the Act, I hereby issue the following rec- ommended: ORDER7 The Respondent, Peat Manufacturing Company, Nor- walk, California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Unilaterally laying off employees without notice to or consultation with the Union as the exclusive repre- sentative of all of its employees in the bargaining unit de- scribed below prior to taking such action. (b) Refusing to bargain with Produce, Refrigerated & Processed Foods & Industrial Workers, Local 630, Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclusive bar- gaining representative of the employees in the unit de- scribed below by laying off employees without notice to or consultation with said labor organization. The appro- priate bargaining unit is: All production and maintenance employees includ- ing trainees, inspectors, plant clerical employees, janitors, shipping and receiving employees, truck drivers, leadmen and working foremen employed by Peat Manufacturing Company at its facility located at 10700 East Firestone Boulevard, Norwalk, Cali- fornia, but excluding all other employees, office clerical employees, professional employees, techni- cal employees, guards, and supervisors as defined in the Act. a See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Upon request, bargain collectively and in good faith with Produce, Refrigerated & Processed Foods & Industrial Workers, Local 630, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of the employees in the unit set forth above concerning layoffs of bargaining unit employees. (b) Make whole John Taylor for any loss of pay suf- fered as a result of his unilateral layoff on May 5, 1980. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary and relevant to analyze and compute the amount of backpay due under the terms of this rec- ommended Order. (d) Post at its Norwalk, California, facility copies of the attached notice marked "Appendix."8 Copies of said notice on forms provided by the Regional Director for Region 21, after being duly signed by the Respondent's authorized representative, shall be conspicuously posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. s In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WE WILL NOT lay off employees without notify- ing and consulting with Produce Refrigerated & Processed Foods & Industrial Workers, Local 630, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of our em- ployees in the following unit: 243 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees in- cluding trainees, inspectors, plant clerical em- ployees, janitors, shipping and receiving employ- ees, truck drivers, leadmen and working foremen employed by Peat Manufacturing Company at its facility located at 10700 East Firestone Boule- vard, Norwalk, California, but excluding all other employees, office clerical employees, professional employees, technical employees, guards, and su- pervisors as defined in the Act. WE WILL NOT refuse to bargain with the above- named Union as the exclusive collective-bargaining representative of the employees in the above unit by unilaterally laying off employees. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of rights guaranteed them under Sec- tion 7 of the National Labor Relations Act, as amended. WE WILL, upon request, bargain collectively in good faith with the above-named Union as the ex- clusive representative of our employees in the unit described above concerning layoffs. WE WILL make whole John Taylor for any loss of pay he may have suffered, with interest, by reason of our unlawful action in refusing to bargain with the Union regarding his layoff on May 5, 1980. PEAT MANUFACTURING COMPANY 244