Trim Corp., of America

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 349 NLRB No. 56 608 Trim Corporation of America, Inc. and Local 2179, International Union, United Automobile, Aero- Space and Agricultural Implement Workers of America-UAW, AFL–CIO. Cases 29–CA–26325, 29–CA–26378, and 29–CA–26720 March 26, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH On June 30, 2006, Administrative Law Judge Arthur J. Amchan issued the attached decision.1 The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified and set forth in full below.3 The judge concluded, among other things, that the Re- spondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union. The judge also concluded that the Respondent violated Section 8(a)(1) of the Act by threatening employees with loss of em- ployment if they did not withdraw the Union’s authoriza- tion to represent them. In reaching that latter conclusion, the judge found that, although the 8(a)(1) allegation was first asserted in the General Counsel’s posthearing brief, it was both sufficiently related to the timely-alleged with- drawal-of-recognition allegation and fully and fairly liti- 1 Administrative Law Judge Howard Edelman conducted the hearing in this case on May 3, 2005, and issued a decision on September 7, 2005. On May 31, 2006, the Board remanded the case for reassignment to a different administrative law judge to review the record and issue a new decision. 347 NLRB 264 (2006). 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance 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 Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. We note in this regard that because Judge Amchan was assigned to the case after the close of the hearing, his credibility resolutions were not based on the witnesses’ demeanor. In these circumstances, the choice between conflicting testimony rests on the weight of the evidence, established or admitted facts, inherent probabilities, and reasonable inferences drawn from the record as a whole. Lignotock Corp., 298 NLRB 209 fn. 1 (1990), citing El Rancho Market, 235 NLRB 468, 470 (1978), enfd. 603 F.2d 223 (1979). Based on our review of these factors, we adopt the judge’s credibility find- ings. 3 We shall modify the judge’s recommended Order to include the Board’s standard remedial language for the violations found. Finally, we shall substitute a new notice to employees to conform to the lan- guage set forth in the Order. gated. Thus, the judge found that the allegation was timely under Section 10(b) of the Act, and the Respon- dent was afforded due process. We agree. In support of the allegation that the Respondent unlaw- fully withdrew recognition from the Union, the General Counsel presented evidence demonstrating that the Un- ion’s loss of majority support was a direct result of state- ments made by Supervisor Richard DiFransisco to em- ployees. In particular, the record shows that at a June 23, 20044 meeting with the Respondent’s three unit employ- ees, DiFransisco told them that “the Union was no longer as strong as it used to be, [and they] had to decide if they were going to work for the company [or] to struggle for [themselves].”5 DiFransisco then put an employee hand- book on the table that was not the union contract, re- ferred to it as “our contract,” and stated that the employ- ees would now receive only 6 days of sick leave and 3 weeks of vacation (rather than the 8 days of sick leave and 4 weeks of vacation they were entitled to). DiFran- sisco told the employees to read the handbook and “[t]ell us the decision you’re going to take.” On June 28, two of the three unit employees each gave the Respondent a one-sentence note stating that they no longer desired union representation. Upon receipt of the notes, the Respondent withdrew recognition. In determining whether an untimely charge relates back to an earlier charge for 10(b) purposes, the Board applies the three-part “closely related” test set forth in Redd-I, Inc., 290 NLRB 1115, 1118 (1988). Under Redd-I, the Board considers: (1) whether the otherwise untimely allegations of the amended charge involve the same legal theory as the allegations in the timely charge; (2) whether the otherwise untimely allegations of the amended charge arise from the same factual situation or sequences of events as the allegations in the timely charge; and (3) whether a respondent would raise the same or similar defenses to both the untimely and timely charge allegations. Id. Applying the Redd-I factors here, we find that the 8(a)(1) allegation is closely related to the timely alleged 8(a)(5) violation. First, both allegations involve the same legal theory and arise out of the same sequence of events. The 8(a)(1) allegation is based on the premise that the Respondent coerced employees by telling them that they needed to choose between union representation and their jobs. The 8(a)(5) allegation, in turn, is based on the 4 All dates hereafter are in 2004, unless stated otherwise. 5 The judge credited the testimony of employee Wilfredo Cruz, who used “and” instead of “or” in the quoted statement. Cruz speaks Eng- lish as a second language and testified through an interpreter. We are satisfied, based on our review of the record, that Cruz said or meant to say “or.” TRIM CORP. OF AMERICA 609 premise that those same coercive statements caused a majority of employees to renounce the Union, which led directly to the Respondent’s withdrawal of recognition. At base, both allegations turn on the issue of whether DiFransisco made the alleged coercive statement. For essentially the same reason, we find that the third Redd-I factor, the existence of common defenses, is satis- fied here. The Respondent’s principal defense to the 8(a)(5) allegation was that DiFransisco did not make the allegedly coercive statements. In other words, the Re- spondent attacked the judge’s credibility resolutions con- cerning those statements. If that defense had been suc- cessful, neither unfair labor practice could have been proved. Our dissenting colleague contends that the third factor is not satisfied because there are possible defenses to the 8(a)(1) allegation that have little in common with the defenses to the withdrawal of recognition. But the appli- cation of the Redd-I factors is not a theoretical exercise: with respect to the third factor in particular, the question is not what defenses are hypothetically available, but “whether a respondent would raise the same or similar defenses to both allegations, and thus whether a respon- dent would have preserved similar evidence and prepared a similar case in defending against the otherwise un- timely allegation[] as it would in defending against the allegation[] in the timely pending charge.” Redd-I, supra at 118 (emphasis added). In this case, as just stated, the Respondent’s principal defense was an attack on the credibility of the witness who testified regarding DiFran- sisco’s statements. Accordingly, we conclude that the third Redd-I factor has been met here.6 For the foregoing reasons, we adopt the judge’s find- ing that the 8(a)(1) coercion allegation is closely related to the 8(a)(5) withdrawal-of-recognition allegation, and that DiFransisco’s statements violated Section 8(a)(1) of the Act as alleged. Finally, and for much the same reasons, we reject our colleague’s assertion that the General Counsel’s failure to allege the 8(a)(1) violation earlier in the proceeding deprived the Respondent of due process. “It is well set- tled that the Board may find and remedy a violation even in the absence of a specified allegation in the complaint if the issue is closely connected to the subject matter of 6 In any event, the defenses suggested by our colleague do not help his cause. Our colleague states that the Respondent “may” have also asserted, in response to the 8(a)(1) allegation, that (a) DiFransisco’s statements did not interfere with, restrain, or coerce a Sec. 7 right; (b) DiFransisco was not an agent of the employer; or (c) DiFransisco’s statements were corrected by later statements. But any of those de- fenses, if supported by the facts, would have disproved the General Counsel’s central contention, namely that the Union’s loss of majority support was tainted by DiFransisco’s statements to the unit employees. the complaint and has been fully litigated.” Pergament United Sales, Inc., 296 NLRB 333, 334 (1989) (footnote collecting cases omitted). See also Letter Carriers Local 3825, 333 NLRB 343 fn. 3 (2001). As shown above in our application of the Redd-I test, the 8(a)(1) violation in this case is “closely connected to the subject matter of the complaint,” and the issue of what DiFransisco said at the June 23 meeting was fully litigated.7 ORDER The National Labor Relations Board orders that the Respondent, Trim Corporation of America, Inc., Brook- lyn, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing to promptly furnish the Union, Local 2179, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America-UAW, AFL–CIO, with the information it requested in its letters of April 27 and May 3, 2004. (b) Unlawfully withdrawing recognition from the Un- ion and refusing to bargain with it as the exclusive- bargaining representative of the employees employed in the unit described below in paragraph 2(b). (c) Threatening employees with loss of employment if they do not withdraw the Union’s authorization to repre- sent them. (d) Implementing changes to the terms and conditions of employment of bargaining unit employees, including sick days, vacations, bereavement leave, and health in- surance coverage, without first notifying the Union and affording it an opportunity to bargain over the changes. 7 Our colleague’s loaded assertion—that the General Counsel “knew of the evidence all along” but waited until after the hearing closed to allege the 8(a)(1) violation—does not advance the discussion. Both parties were well aware, at all material times, that the withdrawal-of- recognition allegation would turn on the credibility resolutions concern- ing what DiFransisco actually said on June 23. Indeed, in his opening statement at the hearing, counsel for the Respondent stated that “[t]his case apparently will come down to a credibility issue between Mr. Cruz [whose testimony about the meeting was ultimately credited, and] Mr. Yulson and Mr. Amos [whose contrary testimony was rejected].” Counsel for the Respondent, who had already cross-examined Cruz in an effort to damage his credibility, then proceeded to adduce testimony from both Yulson and Amos about the June 23 meeting. In other words, counsel for the General Counsel’s posthearing contention that the Respondent also violated Sec. 8(a)(1) did not take the Respondent by surprise in any meaningful way. Although the General Counsel’s intent in proceeding as he did is ir- relevant, it seems likely to us that both parties were focused, initially, on the withdrawal of recognition and subsequent unilateral changes, which carried more meaningful remedial consequences than the 8(a)(1) violation, and that the General Counsel argued the 8(a)(1) violation only as an afterthought. In any event, we agree with our dissenting colleague that counsel for the General Counsel’s mode of operation was not a model of procedure, but we utterly reject his conclusion that the Respondent was thereby deprived of due process. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 610 (e) Laying off Union Shop Steward Wilfredo Cruz in violation of the “superseniority” provision, and the pro- vision requiring 5 days’ notice to the Union prior to any layoff, of the parties’ expired collective-bargaining agreement. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Promptly furnish the Union with the information requested in its letters of April 27 and May 3, 2004. (b) Recognize and, on request, bargain with the Union as the exclusive collective-bargaining representative of the Respondent’s employees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody it in a signed agreement: All warehouse and assembly employees employed by the Respondent at its Brooklyn facility, excluding all managers, guards, and supervisors as defined by the Act. (c) Upon request of the Union, rescind the unlawfully implemented changes in the employees’ terms and condi- tions of employment, including sick days, vacations, be- reavement leave, and health insurance coverage. (d) Make whole the unit employees for any losses they suffered as a result of the unlawfully implemented changes in their terms and conditions of employment, including sick days, vacations, bereavement leave, and health insurance coverage. (e) Make whole Wilfredo Cruz for any loss of earnings and other benefits resulting from his layoff, in the man- ner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). (f) Preserve, and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agent, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount due under the terms of this Order. (g) Within 14 days after service by the Region, post at its Brooklyn, New York facility copies of the attached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily 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 proceeding, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 27, 2004. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. CHAIRMAN BATTISTA, dissenting in part. I agree that the conduct set forth in the untimely alle- gation caused the disaffection from the Union, and that the withdrawal of recognition was thus a violation of Section 8(a)(5). However, I disagree that an 8(a)(1) vio- lation can be based on the untimely allegation. The credited testimony establishes that Supervisor Richard DiFransisco conducted a meeting with three bargaining unit employees in the facility’s locker room. The meeting occurred on June 23, 2004. DiFransisco told the employees that the “union was no longer as strong as it used to be, [and the employees] had to decide if they were going to work for the company and to strug- gle” for themselves. Subsequently, two of the employees, constituting the majority of the unit, submitted notes to the Respondent stating that they did not want the Union to represent them. Relying upon these written state- ments, the Respondent withdrew recognition from the Union. The complaint did not allege the statement to be viola- tive of Section 8(a)(1). There never was a charge alleg- ing such a violation. In fact, the General Counsel made no such contention until the submission of his posthear- ing brief. The posthearing brief was filed on June 13, 2005. As noted, the events at issue occurred on June 23, 2004. My colleagues say that these events are to be 8 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.” TRIM CORP. OF AMERICA 611 treated as if covered by the 8(a)(5) charge of withdrawal of recognition. I disagree. The allegation cannot stand unless the factors of Redd- I, Inc., 290 NLRB 1115 (1988), are satisfied. Specifi- cally, the Board must be satisfied that: (1) the allegations involve the same legal theory; (2) the allegations arise from the same factual circumstances or sequence of events; and (3) the respondent would raise similar de- fenses to the two sets of allegations. 290 NLRB at 1118. The first factor is not satisfied here. The untimely 8(a)(1) allegation does not involve the same legal theory as the timely 8(a)(5) allegation. The legal theory of the 8(a)(5) allegation is that the Respondent withdrew rec- ognition from the Union without a lawful basis to do so. In contrast, the legal theory of the 8(a)(1) allegation is that DiFransisco’s statements to employees reasonably coerced employees in the exercise of their Section 7 rights. Because these legal theories are fundamentally different, I find that the General Counsel’s belated 8(a)(1) allegation fails to meet the first prong of the “closely related” test. My colleagues say that the 8(a)(1) and (5) allegations are closely related because the alleged statements caused the loss of majority, and the loss of majority resulted in the withdrawal of recognition. My colleagues have con- fused the concept of causality with the Redd-I concept of “same legal theory.” Although there is a causal connec- tion between the alleged statements and the loss of ma- jority, that does not mean that an 8(a)(1) violation based on the statements would have the same legal theory as the alleged 8(a)(5) withdrawal of recognition. As dis- cussed above, the two legal theories are quite different. The fact that certain conduct causes other conduct to be unlawful does not mean that the legal theory as to the one is the same as the legal theory as to the other. For example, it may be that 8(a)(1) statements cause a strike to be an unfair labor practice strike and that the refusal to reinstate the strikers is an 8(a)(3) violation. But it does not follow that the 8(a)(1) violation is based on the same legal theory as the 8(a)(3) violation. Nor is the third factor satisfied. The defenses to this type of 8(a)(1) allegation may include: the statement was not made; the statement did not interfere with, restrain or coerce a Section 7 right; the speaker was not an agent of the employer; or the statement was corrected by later statements. By contrast, the defense to the 8(a)(5) allega- tion, i.e., that the Union lost its majority status, has little, if anything, in common with the 8(a)(1) defenses.1 1 I recognize that the prosecutorial response to the defense of loss of majority would include the assertion that the loss of majority was tainted by the alleged 8(a)(1) statement. But this is not the same as The majority contends that these 8(a)(1) defenses are merely hypothetical, and that the only possible defense involves the credibility of the witnesses. However, the sad fact is that, in the absence of a timely raised allega- tion, we do not know what other defenses would have been raised. See generally WGE Federal Credit Union, 346 NLRB 982, 985 (2006) (finding that third Redd-I factor not met where Board did not know what defenses would have been raised for an untimely 8(a)(3) discharge allegation.) Thus, under the test of Redd-I, I conclude that the 8(a)(1) allegation went beyond the scope of the charge and is not closely related to any timely filed charges. Concededly, the second element may be present. The statement caused the disaffection, which led to the loss of majority, which lead to the withdrawal of recognition. However, the satisfaction of one element of Redd-I can- not satisfy the three-prong Redd-I doctrine. Based on the above, the allegation is barred by Section 10(b). Finally, not only was there no timely charge, but also there was no complaint allegation. The proper way to proceed is to have a complaint that makes the appropriate allegations, and then the evidence should be heard. Here, the General Counsel did precisely the opposite. Al- though he knew of the evidence all along, he waited until after the evidence was adduced, and indeed after the close of the hearing, to make his allegation. Such lack of notice deprived the Respondent of due process with re- spect to the 8(a)(1) allegation. Thus, in addition to the 10(b) point made above, there is a procedural deficiency as well. I do not imply that the General Counsel intentionally proceeded in this manner in order to deprive the Respon- dent of the opportunity to rebut the allegation. The intent of the General Counsel in this regard is not relevant. What is relevant is that the failure to timely allege the 8(a)(1) allegation effectively deprived the Respondent of the opportunity to present anything other than a credibil- ity defense to this allegation. Thus, not only was the General Counsel’s mode of operation “not a model of procedure,” as my colleagues acknowledge, but it also deprived the Respondent of due process. My colleagues assert that the Respondent took the po- sition that the case turned solely on credibility issues concerning the alleged statements, and that the Respon- dent attacked the credibility of the General Counsel’s witnesses. Even if that is true, it does not satisfy due process concerns as to the 8(a)(1) matter. An 8(a)(1) saying that the defense to the Sec. 8(a)(5) is the same as the defense to the alleged 8(a)(1) statement. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612 violation turns not simply on what is said, but on the context of the statement. The Respondent never had an opportunity to defend against an 8(a)(1) allegation be- cause no such allegation was made. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail to promptly furnish the Union, Local 2179, International Union, United Automobile, Aero- space and Agricultural Implement Workers of America- UAW, AFL–CIO, with the information it requested in its letters of April 27 and May 3, 2004. WE WILL NOT unlawfully withdraw recognition from the Union and refuse to bargain with it as the exclusive collective-bargaining representative of our employees employed in the unit described as follows: All warehouse and assembly employees employed by us at our Brooklyn facility, excluding all managers, guards, and supervisors as defined by the Act. WE WILL NOT threaten you with loss of employment if you do not withdraw the Union’s authorization to repre- sent you. WE WILL NOT implement changes to the terms and conditions of employment of our bargaining unit em- ployees, including sick days, vacations, bereavement leave, and health insurance coverage, without first notify- ing the Union and affording it an opportunity to bargain over the changes. WE WILL NOT lay off employees in violation of the “superseniority” provision, or the provision requiring 5 days’ notice to the Union prior to any layoff, of our ex- pired collective-bargaining agreement with the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the rights guaranteed you by Section 7 of the Act. WE WILL promptly furnish the Union with the informa- tion requested in its letters of April 27 and May 3, 2004. WE WILL recognize and, on request, bargain with the Union as the exclusive representative of the employees in the bargaining unit described above concerning terms and conditions of employment and, if an understanding is reached, embody it in a signed agreement. WE WILL, on request of the Union, rescind any unilat- eral changes in the terms and condition of employment of the unit employees, such as loss of sick days, vacation days, bereavement leave, and changes in health insurance that were made after June 28, 2004. WE WILL make whole all unit employees for any losses they suffered as a result of our unilateral changes in the terms and condition of their employment, such as loss of sick days, vacation days, bereavement leave, and changes in health insurance that were made after June 28, 2004. WE WILL make Union Shop Steward Wilfredo Cruz whole, with interest, for any loss of earnings and other benefits TRIM CORPORATION OF AMERICA, INC. Marcia E. Adams, Esq., for the General Counsel. Richard M. Howard and Jeffrey Meyer, Esqs. (Kaufman, Schneider & Bianco, LLP), of Jericho, New York, for the Respondent. DECISION STATEMENT OF THE CASE ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Brooklyn, New York, on May 3, 2005. The presid- ing judge issued a decision in this matter on September 7, 2005. On May 31, 2006, the Board remanded this case to the chief administrative law judge for reassignment with direction that the new judge review the record and issue a reasoned decision. Chief Judge Robert Giannasi assigned this matter to me on June 8. The General Counsel alleges that Respondent violated Sec- tion 8(a)(5) and (1) in a number of respects, including refusing or failing to respond to information requests and implementing unilateral changes in the terms and conditions of bargaining unit members. A determination as to whether Trim Corpora- tion violated the Act in making the changes depends for the most part on the issue of whether it lawfully withdrew recogni- tion from the Union on June 28, 2004. On the entire written record, and after considering the briefs filed by the General Counsel1 and Respondent I make the fol- lowing 1 Page 7 is missing from the copy of the General Counsel’s posttrial brief that is in my possession. TRIM CORP. OF AMERICA 613 FINDINGS OF FACT I. JURISDICTION Respondent, Trim Corporation of America, Inc., assembles and packages Christmas ornaments and decorations at its facil- ity in Brooklyn, New York. It purchases and receives at its Brooklyn facility goods and materials valued in excess of $50,000 directly from suppliers outside the State of New York. Respondent 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 2179 of the UAW, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The Union, UAW Local 2179, has represented Respondent’s warehouse and assembly employees since the early 1990s. Prior to that time, UAW District 65 represented these employ- ees. The last collective-bargaining agreement between Re- spondent and the Union was effective from May 1, 2001 through April 30, 2004. The Request for Information In March 2004, Union Business Representative Horace Anderson visited Respondent’s worksite. He observed an em- ployee working alongside bargaining unit employees. Ander- son determined through conversations with this employee, and Respondent’s treasurer/controller, Stanley Pawigon, that sev- eral employees of Heritage Company were working alongside unit employees. They cut cartons and packed Christmas orna- ments, which is the same work performed by bargaining unit employees. Pawigon informed Anderson that Heritage is owned by the same individuals who own Respondent. The Union and Respondent began negotiations for a new or extended collective-bargaining agreement on April 15, 2004. On April 27, Anderson sent Respondent a request for informa- tion regarding Heritage. Respondent, by counsel, replied the next day, asking the Union to demonstrate the relevance and necessity of the requested information to the ongoing collec- tive-bargaining negotiations. On May 3, 2004, the Union sub- mitted an extensive information request regarding the relation- ship between Heritage and the Respondent, citing a concern that Heritage was Respondent’s “alter ego.” On May 5, Respondent replied to this request by counsel, re- fusing to supply any of the information unless the Union set forth its basis as to any alleged alter ego relationship. The Un- ion responded by stating that its information was “based on reports from our bargaining unit members.” On May 19, Re- spondent’s attorney again refused to produce the requested information without more specific information as to any alleged alter ego relationship. On June 28, 2004, the same day that it withdrew recognition from the Union, Respondent, through counsel, again responded to the Union’s May 3 information request. Respondent denied having an obligation to provide any of the information. How- ever, Trim provided the Union with a copy of a collective- bargaining agreement between Heritage Corporation and Local 210 of the Warehouse and Production Employees, AFL–CIO, and a current payroll record of Heritage’s employees, with the names redacted, as well the names of the owners and/or share- holders of Heritage. The June 28, 2004 letter confirmed that the owners of Trim own Heritage in the same percentage and proportion that they own Trim. Analysis The Board has held that information requested by a union concerning the existence of an alter ego operation falls into the category of information that is not presumptively relevant. When a union has requested information with respect to matters occurring outside the bargaining unit it represents, the union has the burden to demonstrate that the information sought is relevant to the performance of its duties. This burden is not an exceptionally heavy one. The union must show that it had a reasonable belief that enough facts existed to give rise to its suspicion that an alter ego relationship exists. The Union does not have to establish that the requested information would es- tablished the existence of an alter ego operation. Pence Con- struction Co., 281 NLRB 322, 324–325 (1986); Bentley-Jost Electric Corp., 283 NLRB 564, 567–568 (1987); Reiss Viking, 312 NLRB 622, 625–626 (1993). The Union has met its burden. Union Business Representa- tive Anderson observed employees of Heritage working along- side unit employees doing work that may have been bargaining unit work. Anderson discussed these observations with Re- spondent’s treasurer/controller, Stanley Pawigon, and told Pawigon that he suspected that Heritage was an alter ego of Respondent. Pawigon denied this but informed Anderson that Heritage was owned by the same individuals who owned Re- spondent (Tr. 19). Section XXXIII of the parties’ collective- bargaining agreement specifically made their collective- bargaining agreement applicable to the employees of an em- ployer found to be an alter ego of Trim (Jt. Exh. 1 p. 17). Thus, Respondent had actual knowledge of the reasons for which the Union suspected an alter ego relationship between Trim and Heritage, and also the relevance of the Union’s request for in- formation to that concern. Cannelton Industries, 339 NLRB 996, 997 (2003). That is sufficient to place Respondent under an obligation to provide any information requested that may reasonably bear on the issue of whether Heritage is an alter ego of Respondent. Respondent argues that the Union’s request was irrelevant to the performance of its duties because section V of the expired collective-bargaining agreement placed no limits on its right to subcontract. Nevertheless, the parties were engaged in negotia- tions for a new or extended collective-bargaining agreement. The Union may well have sought to place limits on Respon- dent’s freedom to subcontract. More importantly, as stated previously, section XXXIII of the agreement which expired on April 30, 2004, specifically made their collective-bargaining agreement applicable to the employees of an employer found to be an alter ego of Trim (Jt. Exh. 1 p. 17). This provision ren- ders the Union’s request relevant both to negotiations for a new contract and to Respondent’s compliance with the expired con- tract prior to April 30, 2004. The fact that Respondent provided the Union some of the re- quested information on June 28, in no way negates the fact that it violated Section 8(a)(5) and (1). Unreasonable delay in fur- nishing information relevant to the processing of grievances DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 614 and contract negotiations is as much a violation of the Act as a refusal to furnish any information at all. Bundy Corp., 292 NLRB 671 (1989). Under the circumstances of the instant case, Respondent’s delay in providing the requested informa- tion was patently unreasonable and may well have been a con- tributing factor to employees’ disaffection with the Union and Respondent’s resulting withdrawal of recognition. Moreover, the provision of relevant requested information the same day that Respondent withdrew recognition of the Un- ion violates Section 8(a)(5). An employer can either recognize a union as the collective-bargaining representative of its em- ployees and bargain with it, or contest its status; it cannot do both. Terrace Gardens Plaza v. NLRB, 91 F.3d 222 (D.C. Cir. 1996). “The Board has consistently found that where an em- ployer continues to challenge the validity of a union’s certifica- tion, it is effectively refusing to bargain with the union, even where it has stated that it is willing to engage in negotiations.” Fred’s, Inc., 343 NLRB 138 (2004); GKN Sinter Metals, Inc., 343 NLRB 315 (2004). Thus, Respondent did not fulfill its obligations to bargain with the Union on June 28, by providing some of the requested information. Withdrawal of Recognition and Unilateral Changes In the spring of 2004 only three bargaining unit employees worked for Respondent, Wilfredo Cruz, who was the Union’s shop steward, Richard Yulson, and Matthew Amos. Two oth- ers had been laid off, apparently in the recent past. On June 23, 2004, Richard DiFransisco, one of Respondent’s supervisors and/or agents, conducted a meeting with the three bargaining unit employees in the facility’s locker room. Cruz, Yulson, and Amos testified as to what transpired at this meeting; DiFran- sisco did not testify. Cruz testified with the assistance of an interpreter, although he has some facility to speak and write in English. Yulson and Amos testified in English. Cruz testified that: We sat down in the changing room—the locker room. Rich- ard DiFransisco told the three of us the Union was no longer as strong as2 it used to be, we had to decide if we were going to work for the company and to struggle for ourselves (sic). . . . . At that point is that he put this book on the table and told us “Here the Union gives you eight days of sick leave but ac- cording to our contract, which is this book, you’re going to get six days. And of the four weeks of vacation some of you have, you’re only to get three. Read the book.” And before leaving he told us, “Tell us the decision you’re going to take. Read the book.” I took the book and asked—to read it and asked Bob Yulson if he was going to read it, he told me he al- ready had a copy. [Tr. 49.] Robert Yulson confirmed that DiFransisco called the three bargaining unit employees into a meeting in the locker room on June 23. Yulson’s testimony about this meeting is as follows: Q. Could you tell me what transpired at that meeting? 2 Rendered “was” in the transcript. A. Richie D. called us in and says that “Under orders of management I’m not going to get involved in negotia- tions for this contract year.” And then he walked out, just let us know that he had nothing to do with it. Q. Was there any discussion with Mr. DiFransisco at that meeting or any other time about whether you should or should not withdraw? . . . . A. No, there was not. Q. [Y]our recognition? [Tr. 91.] In an apparent effort to contradict Cruz’ testimony, Yulson testified that he did not know where Respondent kept copies of its employee handbook and that he did not receive one from Trim until June 28, after he handed Stanley Pawigon a letter indicating that he no longer desired to be represented by the Union. Matthew Amos also testified that he was dissatisfied with the representation he was receiving from Local 2179 and after- wards testified about the June 23 meeting. Amos said he was dissatisfied with the Union because its representatives didn’t visit the plant enough and because they hadn’t consulted with him regarding the 2004 contract negotiations. He was unhappy because he was getting ready to retire in 8 years “and that would look like it was a damper to my eight years” (Tr. 109). Q. [By Respondent’s counsel]: so what did you do about the dissatisfaction that you felt? A. Well, I spoke to Mr. Richie DiFransisco and he told me that he wasn’t involved in negotiations this year and he told me Stanley and the lawyers were handling negotia- tions. Q. Now, you heard testimony earlier today about a meeting in a locker room with Mr. DiFransisco, Mr. Cruz, Mr. Yulson and yourself and that Mr. DiFransisco spoke about whether you should remain in the Union at that meeting, what’s your recollection of that? A. I was in a meeting with Richard DiFransisco, Bob Yulson and Wilfredo Cruz. Q. In 2004, has Mr. DiFransisco—what, if anything, has Mr. DiFransisco said to you about whether or not you should be in the Union? A. Nothing. [Tr. 109.] Credibility Determination Before making a credibility determination regarding what occurred at this June 23 meeting, it is worthwhile to examine Wilfredo Cruz’ uncontradicted testimony as to what transpired afterwards. On June 28, DiFransisco called Yulson and Amos into his office. He did not invite Cruz to this meeting. Yulson and Amos were in DiFransisco’s office for about 45 minutes (Tr. 58). There is no evidence in the record as to what was said during this meeting. On June 28, after their meeting with DiFransisco, both Yul- son and Amos went to the office of Company Treas- urer/Controller Stanley Pawigon and handed Pawigon a one sentence note to the effect that they did not want the Union to represent them any longer. If one is to believe their accounts, after their meeting with DiFransisco, each of them decided TRIM CORP. OF AMERICA 615 independently and without regard to anything said to them by DiFransisco or other management officials to quit the Union the same afternoon. This is so highly implausible that I do not credit the testimony of either Yulson or Amos with regard to either the events of June 23 or 28. Rather, I credit the testimony of Cruz that DiFransisco, in some manner, indicated to the three employees on June 23 that if they wanted to continue working at Trim that they would have to do without representation by the Union. (See Tr. 83.)3 In addition to Cruz’ testimony, I rely on the sequence of events on June 28, i.e., the fact that almost immediately after meeting with DiFransisco, Amos and Yulson quit the Union. One can only infer that at the June 28 meeting DiFransisco improved upon the message implied at the June 23 meeting; that if the employees want to continue working at Trim, it would have to be without representation from the Union. I also infer that DiFransisco told Yulson and Amos to see Stanley Pawigon that day in order to rescind the Union’s authorization to represent them. I would also note that Yulson’s testimony that DiFransisco called the meeting on June 23, simply to tell unit employees that he had no role in collective-bargaining negotiations is also incredible. Yulson and Cruz had previously attended several contract negotiation sessions. DiFransisco did not attend any of these. Thus, there was no need for DiFransisco to inform unit employees that he was not involved in the negotiations. (Tr. 65–66.) I would also note that Amos did not corroborate Yul- son’s testimony as to what was said at the June 23 meeting; indeed, he did not say anything regarding what DiFransisco said at that time. In finding Cruz credible and Yulson and Amos incredible, I rely also on the highly unlikely explanation given by Yulson and Amos for the purportedly independent decisions to quit the Union on June 28. Yulson testified that this decision was in part due to the freezing of his pension in the early 1990s—an extremely unlikely scenario. Neither witness addressed the fact that there were immediate negative impacts upon their working conditions from the withdrawal of union representation, such as reduction in vacation time from 4 to 3 weeks and a reduction in sick leave days from 8 to 6 days and no discernable benefit to either one from the withdrawal of recognition. Finally, in discrediting the testimony of Yulson and Amos I am taking into consideration the fact they were pretried by Respondent’s counsel together in an inherently coercive atmos- phere. (Tr. 102–103.) Respondent interviewed both employees at the same time in the presence of Treasurer/Controller Stanley Pawigon. Pursuant to Board’s decision in Johnnie’s Poultry, 146 NLRB 770 (1964), an employer, when interviewing em- ployees in preparation for trial, must communicate to employ- ees the purpose of their questioning, assure the employee that no reprisals will take place, and obtain his or her participation 3 Cruz’ testimony is confusing at points, due, I suspect, to an incom- plete mastery of the English language. However, I believe his testi- mony is in essence accurate. As to his conversations with company officials on June 29 and July 12, I glean that Cruz did not understand that Trim would no longer pay for the Union’s health insurance plan until specifically told so on July 12. of a voluntary basis. The questioning must occur in a context free from employer hostility to union organization and must itself not be coercive in nature. There is no evidence that Re- spondent complied with Johnnie’s Poultry in interviewing Yul- son and Amos. Indeed, Pawigon’s presence in the interview by itself was unnecessary and inherently coercive. Although the General Counsel has not plead an 8(a)(1) violation in regard to this pretrial interview, it is a contributing factor to my conclu- sion that the testimony of Yulson and Amos is unreliable. After Withdrawing Recognition of the Union, Respondent Makes Unilateral Changes in the Terms and Conditions of Bargaining Unit Employees and Lays Off Wilfredo Cruz for Over 3 Months It is uncontroverted that after June 28, 2004, Respondent uni- laterally changed the terms and conditions of employment for bargaining unit members. It reduced their vacation time from 4 to 3 weeks, reduced the number of days of sick leave from 8 to 6 days, changed employees’ health insurance coverage, and mourning or bereavement leave was reduced from 5 to 3 days. Respondent also eliminated a paid holiday for employees’ birthdays and ceased the practice of giving employees 4 hours of paid leave to vote. On December 20, 2004, Respondent laid off Wilfredo Cruz. It recalled him back to work on March 31, 2005. Under the expired collective-bargaining agreement, Respondent would have been obligated to give the Union 5 days’ notice of this layoff, which it did not do in the case of Cruz. Although Cruz had less seniority than Yulson or Amos, the expired collective- bargaining agreement gave Cruz, the union steward, “supersen- iority” with regards to layoff, which Respondent did not honor. Respondent Violated Section 8(a)(1) on June 23, 2004 Based on the credible testimony of Wilfredo Cruz, I find that on June 23, 2004, Respondent violated Section 8(a)(1) in im- plicitly or explicitly threatening all three unit employee with the termination of their employment unless they renounced repre- sentation by the Union, Frazier Industrial Co., 328 NLRB 717, 726 (1999). Although the General Counsel did not allege such a violation until he filed his posttrial brief, I conclude that Respondent is not being denied due process in finding that Trim Corporation, by Richard DiFransisco, violated Section 8(a)(1) on June 23. It is sufficiently related to the complaint allegation alleging an illegal withdrawal of recognition to support the finding of a violation. Timken Co., 236 NLRB 757 (1978); Pergament United Sales, 296 NLRB 333, 334–335 (1989). It was also fully and fairly litigated. Letter Carriers Local 3825 (Postal Service), 333 NLRB 343 fn. 2 (2001). After Wilfredo Cruz testified about what was said by Supervisor DiFransisco at the June 23 meeting, Respondent elicited testimony from employ- ees Yulson and Amos to contradict him. Respondent attempted through their testimony to establish that Yulson and Amos’ withdrawal of the Union’s authorization to represent them was made of their own free will and not the result of coercion by Trim management. I conclude this record demonstrates just the opposite and that Respondent had an ample opportunity to es- tablish that its withdrawal of recognition was lawful. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 616 Respondent Violated Section 8(a)(5) and (1) by Withdrawing its Recognition of the Union on June 28, 2004 An employer may not rely on decertification petitions or let- ters that are tainted by its coercive conduct to justify with- drawal of recognition from an incumbent union. Smoke House Restaurant, 347 NLRB 192 (2006); Williams Enterprises, 312 NLRB 937 (1993). Here, the withdrawal notices were tainted by DiFransisco’s coercive remarks on June 23, and what I infer he said to Yulson and Amos behind closed doors on June 28. The Union’s loss of majority status is a direct result of this coercive conduct. Master Slack Corp., 271 NLRB 78 (1984). The employees’ withdrawal of support for the Union followed the coercive closed door meeting by no more than a few hours, if that, and occurred just 5 days after DiFransisco’s coercive remarks on June 23. The nature of these remarks, an implied or express threat to the employees’ continued employment at Trim obviously had a detrimental and lasting effect on the employees and was likely to cause disaffection from the Union. Finally, the likely effect of Respondent’s conduct was just what it in- tended, written withdrawal by the employees of the Union’s authorization to represent them. Since Respondent’s Withdrawal of Recognition Violates the Act, So Do All of its Unilateral Changes in the Terms and Conditions of Unit Members’ Employment Respondent was in the midst of negotiating a new or exten- sion of its collective-bargaining agreement with the Union at the time it withdrew recognition. Indeed, a bargaining session was scheduled for June 29, the day after the withdrawal. When negotiating a collective-bargaining agreement with the authorized representative of its employees, an employer is obliged pursuant to Section 8(a)(5) of the Act to maintain the status quo with regard to mandatory subjects of bargaining. NLRB v. Katz, 369 U.S. 736 (1962); Our Lady of Lourdes Health Center, 306 NLRB 337 (1992). During negotiations, an employer’s obligation to refrain from unilateral changes in the wages, hours, and other terms and conditions of employment of bargaining unit employees extends beyond the duty to provide notice to the union and an opportunity to bargain about a sub- ject matter. It encompasses a duty to refrain from implement- ing such changes at all, absent overall impasse on bargaining for the agreement as a whole. Bottom Line Enterprises, 302 NLRB 373 (1991). Thus, here, any unilateral change in the terms and conditions of employment of Respondent’s employ- ees after June 28, such as the reduction in vacation time, sick leave, bereavement leave, and any changes in health insurance coverage, violated Section 8(a)(5) and (1). The layoff of Wilfredo Cruz in December 2004 also violated Section 8(a)(5) in that Respondent undertook the layoff unilat- erally without providing the Union notice and an opportunity to bargain and because the superseniority provisions of the 2001– 2004 collective-bargaining agreement survived the April 30, 2004 expiration of that agreement. Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962); Frankline, Inc., 287 NLRB 263 (1987). CONCLUSIONS OF LAW 1. Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union, in a timely manner, the informa- tion the Union requested on April 27 and May 3, 2004, regard- ing Respondent’s relationship with Heritage Company. 2. On June 23, 2004, Respondent, by Richard DiFransisco, violated Section 8(a)(1) of the Act in threatening employees with loss of employment if they did not withdraw the Union’s authorization to represent them. 3. Respondent violated Section 8(a)(5) and (1) by withdraw- ing recognition from the Union on June 28, 2004. 4. Respondent violated Section 8(a)(5) and (1) after June 28, 2004, by making unilateral changes to the terms and conditions of employment of bargaining unit employees. These illegal changes included a reduction in the number of sick days, a reduction in the number of vacation days, a reduction in the number of bereavement days, and a change in unit members’ health insurance coverage. 5. Respondent violated Section 8(a)(5) and (1) by laying off Union Shop Steward Wilfredo Cruz on December 20, 2004, in violation of the “superseniority” provision of the parties’ ex- pired collective-bargaining agreement and in violation of the provision in that agreement which required 5 days’ notice to the Union prior to any layoff. 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. Having illegally laid off Wilfredo Cruz on December 20, 2004, the Respondent must make Wilfredo Cruz whole for any loss of earnings and other benefits, computed on a quarterly basis from the date of his layoff to the date his 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). [Recommended Order omitted from publication.]