Laminates Unlimited, Inc.

LAMINATES UNLIMITED Laminates Unlimited, Incorporated and Baltimore Regional Joint Board, Amalgamated Clothing and Textile Workers Union, AFL-CIO Cases 5-CA-19183 and 5-CA-19280 January 19, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On August 24, 1988, Administrative Law Judge Lowell Goerlich issued the attached decision The Respondent filed exceptions and a supporting brief 1 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 brief and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified 3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent, Laminates Unlimited, Incorporated, Bal- timore, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 2(a) "(a) Offer Carolyn Granger immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the decision " 2 Insert the following as paragraph 2(b) and re letter the remaining paragraphs "(b) Remove from its files any reference to the unlawful transfer and notify the employees in writ- t The Respondent has requested oral argument The request is denied as the record and briefs adequately present the issues and the positions of the parties 2 The Respondent has excepted to some of the judge s credibility find rags 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 Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 We shall modify par 2(a) of the judge s recommended Order to con form to the Board s traditional reinstatement language We shall also modify the judge s recommended Order to include an expunction provi sion 595 ing that this has been done and that the transfer will not be used against her in any way " 3 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT unlawfully discourage concerted or union activities of our employees in Baltimore Regional Joint Board, Amalgamated Clothing and Textile Workers Union, AFL-CIO, or any other labor organization, by unlawfully and discrimina torily transferring our employees to more onerous jobs because of their union affection or discrimi nate against them in any manner regarding their hire or tenure of employment, or any term or con- dition of employment, in violation of Section 8(a)(3) and (1) of the National Labor Relations Act WE WILL NOT unlawfully interrogate employees regarding to their union membership or affection WE WILL NOT tell employees that we will fight the Union all the way even if it means closing our plant WE WILL NOT unlawfully create the impression we are watching our employees' union activities WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Carolyn Granger immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her transfer WE WILL notify her that we have removed from our files any reference to her transfer and that the transfer will not be used against her in any way WE WILL supply the Union with the names and addresses of our probationary employees LAMINATES UNLIMITED, INCORPO RATED Marc A Stefan Esq and Eric M Fine Esq, for the General Counsel 292 NLRB No 61 596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Glenn P Hare Esq of Baltimore Maryland, for the Re spondent Bernard W Rubenstein Esq, of Lutherville Maryland, for the Charging Party DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge The charge in Case 5-CA-19183, filed by Baltimore Regional Joint Board Amalgamated Clothing and Textile Workers Union, AFL-CIO (the Union) on October 22, 1987 was served on Laminates Unlimited Incorporated (the Re spondent) on October 23, 1987 A complaint and notice of hearing was issued on December 4, 1987 In the com plaint it was alleged among other things, that the Re spondent unlawfully withheld requested information from the Union in violation of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act) The charge in Case 5-CA-19280 filed by the Union on December 3, 1987, was served on the Respondent on the same date A complaint and notice of hearing was issued on January 28, 1988 In the complaint among other things it was charged that the Respondent had violated Section 8(a)(1) of the Act by unlawfully interrogating and threatening employees and Section 8(a)(3) of the Act by discriminatorily transferring employee Carolyn Granger from the cleaning department to the prep de partment An order consolidating the foregoing cases was en tered on February 4, 1988 The Respondent filed timely answers denying that it had engaged in the unfair labor practices alleged The consolidated cases came on for hearing in Balti more, Maryland on March 23 and 24 1988 All parties were afforded a full opportunity to be heard, to call, ex amine and cross examine witnesses to argue orally on the record to submit proposed findings of fact and con clusions and to file briefs All briefs have been carefully considered On the entire record in this case and from my observa tion of the witnesses and their demeanor I make the fol lowing i FINDINGS OF FACT AND CONCLUSIONS OF LAW I THE BUSINESS OF THE RESPONDENT At all times material the Respondent, a Maryland cor poration with an office and place of business in Balti more Maryland (the Respondents facility), has been en gaged in the manufacture of laminated office furniture i The facts found are based on the record as a whole and my observa tion of the witnesses The credibility resolutions have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability the demeanor of the witnesses and the teachings of NLRB Y Walton Mfg Co 369 U S 404 408 (1962) Regarding those witnesses testifying in contradiction of the findings their testimonies have been discredited either as having been in conflict with the testimonies of credible witnesses or because the testimonies were in and of themselves incredible and unworthy of belief All testimony has been reviewed and weighed in light of the entire record No testimony has been omitted During the preceding 12 months, a representative period the Respondent, in the course and conduct of its business operations described above, sold and shipped from its Baltimore, Maryland facility products goods, and materials valued in excess of $50 000 directly to points outside the State of Maryland The Respondent is now and has been at all times ma terial, an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Union is now and has been at all times material a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A Case 5-CA-19280 The Facts I consider Tablytha Deily to be an unusually truthful witness As a witness she was forthright, honest candid, and sincere Her demeanor reflected her as a truthful person She exhibited no observable hostility or rancor Deily had been employed as a supervisor of the cleaning department at the time that the alleged discriminatee Carolyn Granger was transferred from the cleaning de partment to the prep department Later Deily was let go According to James Richard Echart, plant manager she was told that she was let go because of a reorganization and a reduction in supervi sory manpower On the Saturday (November 14, 1987) after Granger signed a union authorization card (November 12, 1987) the Respondent imposed a rule tht required employees to sign in and out when they attended the bathroom [t]hat there was too many going into the bathroom spending too much time A petition was prepared against this rule and circulat ed among the employees Granger was the first signer The petition was going against us having to sign [in] and out of the bathroom The petition was handed to Deily by Patricia Page, secretary for the Union Deily carried the petition to George E Kelly director of man ufacturing, who opened the paper According to Kelly he received the petition in mid November on a Saturday Kelly reviewed the petition The petition had to do with signatures that were protesting the bathroom policy On the following morning Kelly gave the peti tion to Iluminada Acosta Ythier director of human re sources to log in as a grievance Ythier testified that there were [a]pproximately 30, 32 names on the peti tion According to Ythier the grievance was later with drawn by Page However James Richard Eckhart plant manager testified that the grievance was turned over to him to settle in the second step I sat down with Pat Page and settled the grievance According to Deily the petition was discussed at the supervisors meeting following her receipt of the petition (around November 16 1987) James Crystal the Re spondent s president attended this meeting In reference LAMINATES UNLIMITED to the petition Crystal said that he did not appreciate it He did not think it was necessary As far as he was con cerned petitions don t scare him And no matter what it takes even if the-The petition and the union did not scare him And no matter what it takes if it means shut ting his doors or using every cent he has he would fight it as far as he had to It was also mentioned that Caro lyn [Granger] was a troublemaker She started the peti tion Patricia Page was a troublemaker As noted above Granger had signed a card and joined the Union on November 12 1987 Fredrick Hartner business agent for the Union, at their regular weekly meeting gave the card to Ythier According to Ythier the Granger card was received by her from Hartner on November 20, 1987, whereupon she turned it in to pay roll Ythier testified that she informed neither Kelly nor Eckhart that Granger had signed a union card Out of a bargaining unit of 70 employees 31 had signed union checkoff cards On November 20, 1987, the same day Ythier received Granger s union card Kelly received a page to escort Granger to Ythier s office Kelly walked with Granger to Ythier s office, where Ythier told Delly that she was not needed Delly left Normally Delly would have re mained with the employee in Ythier s office When Granger returned to her job she reported to Delly the conversation that occurred during the meeting As recalled by Delly it was as follows She said, Lummi [Ythier] asked her what was her reason for joining the union, because the LUI [the Respondent] could do more for her than the union would that Mr Crystal did not like the union and where did she think a lot of people in the union would end up if Mr Crystal ever got the union out of there Granger testified that when she entered Ythier s office Ythier waved Granger s union card and asked her why she had joined the Union Granger responded that she wanted to Granger testified further She asked me then if I was having any trouble with my job where I worked, maybe one of the employees was having trouble with my supervisor I told her no that I was very happy with my job That I liked the cleaning department I had worked a lot of factories but this one seemed okay She was telling me that when I joined the union they were taking my $14 00 and that-They were taking my $1400 and then she said to me, Did they tell you that you wouldn t get any insurance for 180 days? I said, No She told me that the, James Crystal, the owner would do anything for us and her door was always open to us If we had any trouble we could come into there She just did not understand why I had joined the union But, it wasn't her $1400 that was being thrown away She then said that did I know that James Crystal was 597 against the union And that he was 100 percent against the union and he would fight it all the way Even if it meant closing the doors That they had even helped people in there pay their bills and things like that She stated to me or I had stated to her after- I said, why don t you just put the union out then if they are so against it? And she said, Oh, the union will go Then where do you think you will be when the union does go out She said that her job was to take and find out why we joined the union If there was any problem or anything and when she went back and told James Crystal, the owner Just that the owner was against the union And he would go against it 100 percent and he would close the doors if he had to And that most factories did not want unions That the unions asked too much from the owners and the owners could not come up with it so where did that leave us, at the unemployment line Ythier denied that she had engaged in the above detailed conversation with Granger Employee Reginald Newton, however testified that he had a similar experience with Ythier After Newton had signed a union card on August 28 1987 he was asked to visit Ythier Newton testified When we went in the office, she was asking me- She asked me why have I joined the Union She said I ve been working there for a year and she don t see why that I joined the Union because-Well, I told her the only reason I joined the Union at the time a guy named Gary Berkhart he was working there, adn [sic] the supervisor that was giving me a hard time So I told her I joined the Union to pro tect myself because it seemed like they was trying to hassel [sic] me and she just stated that she don t see why I joined the Union You know she said it was up to me my own decision But she don't see why I would want to give 14 hours away [a] month joining the Union [Emphasis added ] I discredit Ythier 2 As noted Granger worked as a cleaner in the Re spondent s cleaning department Her job was basically to clean desks for shipment after they had been assembled She vacuumed the drawers waxed the desks touch[ed] them up with magic marker in case the screw that holds the door front on has gone in to [o] far, spray[ed] it with nap and wipe[d] it down and if any scratches or chips 2 Had Newton not testified I would have still discredited Ythier for her demeanor and attitude on the witness stand which were those of an untruthful witness who was trying to accommodate her employer Even if it is assumed that some of the details concerning Granger s visit to Ythier were not accurate I am convinced that the conversation occurred as related by Granger Moreover Ythier seemed naive and un informed about labor relations matters thus it is plausible that she would have made the remarks attributed to her by Granger 598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were observed notified the supervisor or an inspector Granger s job performance was good Delly character ized her as a very good employee She was easy [to] teach, she learned her job and did a very good job at what she was doing Kelly rated Granger as an excel lent employee When Delly arrived at work on November 23 1987, Kelly instructed her to take Granger to Joe Dietz de partment (prep department) Delly escorted Granger to Dietz, who informed her that it was a permanent change, and that he had been asking for a cleaner for 3 months Delly returned to Kelly and asked him why he had transferred Granger because it left her with only one cleaner on the desk line (one employee had quit) Kelly responded, It was necessary for the good of the plant Delly observed, How could it be necessary when it was leaving me short handed of people and I could not get the furniture out for shipment Neither Delly, Dietz nor Granger had been informed of the transfer of Granger 3 At the time of Granger s transfer, according to Delly, there was a back up in the cleaning department caus ing Delly to ask for additional help Regarding the transfer Kelly explained that it had been concluded at some previous time that if defects were identified prior to the cleaning stage the Respond ent would have time to make corrections and adjust, thereby enabling [it] to better meet [its] commitments Thus it was resolved to do cleaning at the prep stage so that product defects could be identified before the prod ucts were assembled To obtain this objective a cleaner was to be added to the prep department This objective however, had not been implemented but hung fire while Eckhart and Kelly discussed the contemplated change over several months [F]inally [Kelly] lost [his] patience and on November 16 he met with Eckhart Kelly said [Y]ou ve got to stop we are going to do it now Thereupon the two conferees examined the seniority list and, as stated by Kelly it was obvious that one of the best candidates was Carolyn Granger Kelly considered Granger an excellent employee a super cleaner and the best of the four cleaners in the department whom he considered for transfer According to Kelly one of the other cleaners Pat Page was leaving She was the most experienced and Elwin Chariton was able to reedge a job that Granger was unable to do At the time there were four cleaners in the cleaning depart ment and four cleaner inspectors It was left to Kelly to contact Ythier to get replacements for the cleaning department which was done probably the next morn mg According to Kelly, because of his and Eckhart s plant absences 4 Delly was not informed of Granger s transfer until the morning of November 23 1987, at which time she was also told two people had been hired as replace 3 When asked why the parties involved Dietz Delly and Granger were not informed of Granger s impending transfer Ythier stated it was not her job Kelly was evasive and Eckhart said We didn t feel we had-I didn t feel I had to and I was supposed to earlier and I did not * Eckhart testified on this subject We didn t feel we had-I didn t feel I had to and I was supposed to earlier and I did not ments Kelly had not discussed Granger s qualifications with Granger s supervisor nor had he reviewed her file According to Ythier she was told by Kelly to obtain two replacements for the cleaning department on No vember 16 1987 She obtained Ivan Martinez There was another gal to come in that did not show Martinez went to work on November 23 1987 An application for the position of Freda Muncy Cummings, date November 20 1987 was presented by the Respondent as that of the second hiree According to Ythier, she was unsuccessful in obtaining additional replacements Granger was never asked whether she wanted to be transferred to the prep department or whether she was able to perform the work in the department 5 nor was the prep department job ever put up for bid The job to which Granger was transferred in the prep department was somewhat similar to her job in the clean ing department However unlike her cleaning depart ment job, she cleaned parts of desks rather than the as sembled desk and [m]ust be capable of constant lifting of 65 pounds and more Granger gave these reasons the prep cleaners job was more arduous She was required to bend over pick up the parts and put them down A lot of times she was unable to pick up the parts because they were too wide and her hands could not reach around them Granger testified I pick it up [the part] from the dirty pile I take and clean it and then it is laid right down beside it on the roller And then I start a clean pile up I just reverse it take the dirty clean it and then put it on the clean pile You have to pick it up, clean one side A lot of times there is two sides so you have to flip it and turn it Although Granger was allowed help in lifting nevertheless she was told by Supervisor Dietz that her job requirements required her to lift 65 pounds or more On the first day Granger worked in the prep depart ment she slipped and fell I had bent down to clean a part and when I went to clean it my foot slipped and I fell I fell on my tail and hit my back on the floor Granger told her supervisor Dietz that she had fallen He said `Just don t lift the heavy parts 6 On the next day November 24 1987 Ythier appeared at Granger s job station and said that Granger was ac cusing her Granger told him that she thought she was transferred because she had joined the union Ythier replied she had nothing to do with that and that any thing Granger said in that factory will get back to her s Employee Anna Marie Dilliard who did cleaners work in the prep department was given a lifting test before she was hired to determine whether she was capable of performing the work Granger was given no such test e Regarding the incident Dietz wrote a memo dated November 24 1987 as follows Ms Carolyn Granger approached me to tell me one she did not think she was going to cut it back here (she meant she couldn t handle the job) Also she told me that she s having back pains and she thinks they re [the pains] from working in my department Well I don t -underline don t twice- think soi -exclama tion point- I told her I didn t want her to lift any heavy objects and if she came across a heavy object she should either see me or the Material Coordinator who I also informed not to allow her to do any heavy lifting LAMINATES UNLIMITED 599 one way or another Granger also quoted Ythier as saying that it was her job to take and found [sic] out what was wrong and why we joined the union And then she would go back and tell the owner James Crys tal Also around this time Dietz had moved his desk from one end all the way over to the department the de partment where [Granger] was at The desk was right on top of Granger Additionally a camera was com pletely turned around to focus on Granger and where she was working According to Deily the cameras were used to watch people and how they were working and what they were doing Deily had observed a camera turned on the union president Granger again fell and hurt her back Granger missed 28 days of work because of this injury On November 24, 1987, Granger had complained that she could not do the job and wanted to go back to the cleaning department Eckhart testified that he knew shortly after Granger transferred she was unhappy with her job Eckhart testified that he knew of no employee who was kept on the job since the Union has been there who has been involuntarily transferred into a job that they made it very plain from day 1 they did not want it According to Eckhart, Granger had been having a great deal of difficulty doing the job since she s been transferred which he atributed to a bad atti tude B The 8(a)(1) Violations Conclusions and Reasons The Respondent violated Section 8(a)(1) of the Act by 1 Ythier s questions accompanied by threats directed to Granger on November 20 1987 about why she had joined the Union' 2 Ythier s remarks addressed to Granger that James Crystal, the Respondents president, was against the Union and that he would fight it all the way even if it meant closing the doors Cf Cartridge Actuated Devices 282 NLRB 426 (1986) 3 Ythier's threat of retaliation for union support ad dressed to Granger on November 20 1987 Where do you think you will be when the union does go out 4 Ythier s remark addressed to November 20 1987 that her job was to find out who joined the Union 5 Ythier s creation of an impression of surveillance when on November 27 1987 she informed Granger that anything Granger said in that factory would get back to her one way or another The foregoing activities interfered with restrained and coerced employees in the exercise of the rights guar anteed them by Section 7 of the Act and were in viola tion of Section 8(a)(1) of the Act to as a troublemaker at a staff meeting at which the pets tion was considered Granger was transferred precipi tantly to a more arduous and onerous job on the first working day after her union affection had been revealed to the Respondent and after she had been unlawfully in terrogated and threatened by the Respondent Thus the teachings of Wright Line"' come into play and the Respondent has the burden of proving that Granger would have been transferred even though she had not been a union partisan The Respondent asserts that Granger s union affection was not a consideration and that her transfer was planned before the Respondent could have known of her union partisanship, thus, it would have occurred in any event If it were assumed arguendo that the Respondent had intended to supply the prep department with a cleaner prior to November 23, 1987 it does not necessarily follow that Granger was that choice As revealed in the credited record, the Respondent hired two employees to commence work on November 23, 1987 Martinez ap peared for work Cummings did not One of these must have been a replacement for the cleaner who had quit in the cleaning department, and the other may have been either a cleaner for the prep department or the additional employee Deily had requested for the cleaning depart ment (Deily had complained about the lack of personnel in the cleaning department indeed she questioned why Granger had been taken away from her) Under this as sumption Granger would have been an afterthought for it seems unreasonable that the Respondent which had a man available, Martinez would have placed a woman on a lifting job without determining whether she could do the work Moreover it does not seem plausible that the Respondent would move an experienced employee to a job where the employee had no experience and place an inexperienced employee in the experienced employee s job Thus it would appear that business considerations did not necessarily dictate the Respondent's action in transferring Granger even if it is assumed that the prep job was to be filled on November 23, 1988 Moreover it seems at odds with industrial realities that the Respond ent would have transferred Granger from a short handed department without discussing the effect of the transfer on the efficiency of the department with its supervisor especially when the prep departments need was not urgent (The Respondent if its witnesses are to be be lieved, had been dilly dallying over its decision to place a cleaner in the prep department) Moreover, the Re spondent's explanation for its precipitant action does not withstand scrutiny 9 C The Transfer of Granger These things support the General Counsel's prima facie case The Respondent possessed antiunion animus Granger signed a union card on November 11, 1987, Granger's name appeared at the head of a petition pro testing a new bathroom rule, and Granger was referred 7 See Rossmore House 269 NLRB 1176 1177 (1984) 251 NLRB 1083 (1980) In NLRB v Griggs Equipment 307 F 2d 275 278 (5th Cir 1962) the court said [T]he inference drawn by the Board of discriminatory mote vation is sustained and is buttressed by the fact that the explanation [of fered by the employer] of the layoffs failed to stand under scrutiny Also in NLRB Y Dant 207 F 2d 165 167 (9th Cir 1953) the court said It is well settled that the inferences drawn by the Board are strength ened by the fact that the explanation of the discharge offered by the re spondent fails to stand under scrutiny 600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although the Respondent claims it selected Granger for transfer because she was an excellent employee it seems implausible that the Respondent would not have chosen Martinez rather than Granger to work in the prep department because the cleaning department was having difficulty meeting production schedules and the job in the prep department was not immediate and re quired heavy lifting Thus, business consideration seems a shallow excuse for Granger s transfer Other factors are persuasive that Granger s transfer was discriminatory The timing of the transfer shortly after the Respondent learned of Granger s union affec tion and shortly after she had been deemed a trouble maker reveals an ulterior motive and a retaliatory objec tive Ace Machine Co 249 NLRB 623, 631 (1980) 10 A camera was readjusted to focus on Granger Prior to her transfer the Respondent did not talk to Granger about the transfer explain to her the reasons for the transfer, or inquire whether she would be able to do the work Such behavior implies under the circum stances of this case, a discriminatory motive Cf F WI L Lundy Bros Restaurant 248 NLRB 415, 420 (1980) Ad ditionally the Respondent failed to consult with Grang er s supervisor or the supervisor in the prep department to ascertain whether she would be able to perform the new task or whether her transfer would jeopardize the work in the cleaning department The precipitant action of a high management official in transferring a new union member to a more onerous job a seemingly low level management matter acting with out consultation with the supervisors involved may be well explained as an attempt to punish an employee for his/her union and concerted activities and demonstrate to other employees what was forthcoming to them if they followed the same tactics Such explained objective is in conformity with and accommodated Crystal si i desire to remove the Union from the plant Finally I am not convinced and do not believe (de meanor considered) that the Respondent considered Grangers transfer to the prep department prior to its learning that she had signed a union card I find that the transfer of Granger on November 23 1987 was discriminatory and in violation of Section 8(a)(3) of the Act12 and was effected for the deliberate purpose of discouraging union activity 13 Granger would not have been transferred except for her union affection 10 Timing alone may suggest antiunion animus as a motivating factor in the employers action NLRB v Rain Ware Inc 732 F 2d 1349 1359 (7th Cir 1984) 11 Although Crystal was the only person who could have testified about his antiunion remarks free from pressure in relation to his job tenure it is significant that he did not appear for testimony 12 Under § 8(a)(3) of the Act it is unlawful for an employer by dis crimmation in terms of employment to discourage membership in any labor organization which includes discouraging participation in concert ed activities NLRB v Erie Resistor Corp 373 U S 221 233 (1963) is When it is considered that 31 employees out of a unit of 70 had signed checkoff cards Granger s alignment with the Union was not a small event for an employer who was bent on removing the Union from the plant It seems quite obvious that the Respondent did not intend to allow the increase in union membership to be unrestrained D Probationary Employee Issue By letter dated October 7, 1987, the Union requested a list of names and addresses of all bargaining unit em ployees including probationary [employees] currently working at LUI Because the Respondent has furnished names and addresses other than those of the probationary employees, the only issue that is before me is whether the Respondent may withhold the names and addresses of probationary employees on the Union s request Article II, section 2 of the contract provides in part The Company will furnish the Union with a list of all new employees and in section 1 All new employees who voluntarily join the Union shall maintain their mem bership in the Union as a condition of continued employ ment Under the contract probationary employees may become members of the Union and become subject to the checkoff before their probationary period has expired Probationary employees under the contract are de scribed as (see art 4) Section 1 During his/her first ninety (90) days of employment, a new employee shall be considered in his/her probationary period During the probation ary period the employee may be discharged or oth erwise disciplined, with or without cause without recourse to the grievance and arbitration provisions of this Agreement Section 2 Probationary employees shall have no rights under this Agreement except as otherwise provided Upon successful completion of his/her probationary period the employee shall gain senior ity status with his/her seniority counted retroac tively to the date of his [sic] his/her hire In article 7 the contract provides in case of a reduc tion of the work force Section 3 In all cases of reduction in the work force lasting five (5) working days or longer the fol lowing procedures shall be followed (a) All probationary employees shall be laid off in the respective departments where the layoff occurs (b) Thereafter all probationary 'employees throughout the plant shall be laid off provided there are available employees with seniority who are fully capable of doing the work of the probationary em ployees to be displaced Under article 13 of the contract the probationary em ployee is entitled to jury duty pay and under article 15 call in pay Article 22 sets the starting rate for probation ary employees at $4 25 Thus it is clear that the Union, in negotiating terms and conditions of employment and benefits for probationary employees, has acted as the probationary employees bargaining agent The Union asserts that it needs (testimony of Fredrick Hartner business agent) the names and addresses of the employees so [it] can communicate with the people and keep them informed of what is available what the union is all about so that they have the ability to make a determination in joining the union or the things that are available to them within the agreement LAMINATES UNLIMITED Although the probationary employees have no con tractual rights to use the grievance procedure in the event they are discharged or otherwise disciplined, they do have certain rights inuring to them under the contract that the Union has a statutory duty to protect More over, because the probationary employees fall within the appropriate unit, the Union has statutory duty to repre sent them, too Additionally, the probationary employees perform the same kind of work under the same supervi Sion Thus, it is clear that if the Union is not furnished the names and addresses of the probationary employees, it will be unable to completely fulfill its statutory duties In a recent case the United States Court of Appeals for the Sixth Circuit said in NLRB v Postal Service, 841 F 2d 141 144 6th Cir 1988) Generally an employers duty to bargain collec tively established in § 8(a)(5) of the National Labor Relations Act, obligates it to provide a labor union with relevant information necessary for the proper performance of the union s duties as the employees bargaining representative Detroit Edison Co v NLRB, 440 U S 301 99 S Ct 1123 1125, NLRB v Acme Indus Co, 59 LED 2d 333 (1979), 385 U S 432 87 S Ct 565, 17 L Ed 2d 495 (1967) NLRB v Truitt M f g C o 351 U S 149, 76 S Ct 753 100 L Ed 1027 (1956) The failure to provide such in formation constitutes an unfair labor practice in vio lation of § 8(a)(1) and (5) of the Act 29 US C § 158 (a)(1) (5) On the same subject the Board has said in the recent case of Hawkins Construction Co 285 NLRB 1313 1315 (1987) In determining relevancy, it is sufficient that the Union demonstrate that there is a probability that the desired information is relevant and that it would be of use to the Union in carrying out its statutory duties and responsibilities NLRB v Acme Industrial Co, supra at 437 As the Board stated in Georgetown Holiday Inn 235 NLRB 485 486 (1978) [I]t is well settled that the names and addresses of unit employees like wage data are presumptively relevant to the Unions role as bargaining agent either during contract negotiations or during the term of an agreement Hence no showing of par ticularized need was necessary See also Hecla Mining Co 248 NLRB 1341 1343 (1980) Accordingly I find that in refusing to provide the Union with the names and addresses of the probationary employees after the Union s October 7 1987 request the Respondent violated Section 8(a)(5) of the Act CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com merce within the meaning of Section 2(2), (6), and (7) of the Act and it will effectuate the purposes of the Act for jurisdiction to be exercised 601 2 The Union is a labor organization within the mean ing of the Act 3 By interfering with, restraining, and coercing em ployees in the exercise of the rights guaranteed them by Section 7 of the Act the Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 By unlawfully and discriminatorily transferring Carolyn Granger from the cleaning department to the prep department on November 23 1987, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act 5 The following employees of the Respondent consti tute a unit appropriate for the purposes of collective bar gaining within the meaning of Section 9(b) of the Act All full time and regular part time production and maintenance employees, including truck drivers and working leaders employed by Respondent at its 5500 E Lombard Street, Baltimore, Maryland loca tion, but excluding all other employees, summer help temporaries and casual labor working less than twenty hours per week, office clericals, customer service employees plant clericals guards, and working supervisors as defined in the Act 14 6 At all times since May 7, 1985 the Union by virtue of Section 9(a) of the Act, has been, and is the exclusive representative of the unit for the purposes of collective bargaining concerning rates of pay, wages hours of em ployment, and other terms and conditions of employ ment 7 By refusing to bargain collectively with the Union by refusing to furnish the Union the names and addresses of probationary employees as requested by the Union on October 7 1987, the Respondent had engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act 8 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices it is recommended that it cease and desist that it take certain affirmative action designed to effectuate the policies of the Act It also having been found that the Respondent unlawfully trans ferred Carolyn Granger on November 23, 1987, from the cleaning department to the prep department, it is recom mended that the Respondent remedy such misconduct by transferring Granger back to the cleaning department with all rights and privileges restored if any were taken away The General Counsel points out that because of back injuries sustained on the job to which she was unlawfully transferred Granger was unable to work for approxi mately 28 days Thus, the General Counsel asserts that the loss of earnings that resulted from the 28 days during 14 Admitted by the Respondent 602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD which Granger was unable to work should be restored to her because the loss of earnings was the direct result of the unlawful action taken against her by the Respond- ent, citing American Mfg. Co. of Texas, 167 NLRB 520, 522-523 (1967); Colorado Forge Corp., 285 NLRB 530 (1987); Greyhound Taxi Co., 274 NLRB 459 (1985); ITO Corp. of Rhode Island, 266 NLRB 503, 506 ( 1983); Graves Trucking, 246 NLRB 344 (1979). I agree . It is recom- mended that Carolyn Granger be made whole for all loss of wages she incurred during the period she was absent as a direct result of the injuries she received while work- ing on the cleaner's job in the Respondent's prep depart- ment. Interest shall be paid in accordance with the Board's usual formula. t s On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed16 ORDER The Respondent, Laminates Unlimited , Incorporated, Baltimore, Maryland, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging union or concerted activities of its employees in Balitmore Regional Joint Board , Amalga- mated Clothing and Textile Workers Union , AFL-CIO, or any other labor organization, by unlawfully and dis- criminatorily transferring its employees to more onerous jobs because of their union affection or discriminating against them in any manner concerning their hire or tenure of employment, or any term or condition of em- 15 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). ' S If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. ployment, in violation of Section 8(a)(3) and (1) of the Act. (b) Unlawfully interrogating employees regarding their union membership or affection. (c) Telling employees that the Respondent would fight the Union all the way even if it means closing the plant. (d) Unlawfully creating an impression of surveillance that the Respondent is observing the employees' union activities. (e) Failing and refusing to supply the Union with the names and addresses of probationary employees. (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) Forthwith transfer Carolyn Granger to the Re- spondent's cleaning department on the same cleaner's job she filled on November 23, 1987, with the restoration of all rights and privileges, and otherwise fully comply with the make-whole remedy and all recommendations set forth in the remedy. (b) Supply the Union with both the names and ad- dresses of all probationary employees. (c) Post at facility in Baltimore, Maryland, copies of the attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 17 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."