Josten Concrete Products Co., Inc.

JOSTEN CONCRETE PRODUCTS CO. 1029 Josten Concrete Products Co., Inc . and Internation- al Union, Allied Industrial Workers of America, AFL-CIO. Case 18-CA-10023 July 20, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On January 31, 1989, Administrative Law Judge Hubert E. Lott issued the attached decision. The Respondent filed exceptions and a supporting brief. 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,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Josten Con- crete Products Co., Inc., Mitchell and Sioux Falls, South Dakota, its officers, agents, successors, and assigns, shall take the action set forth in the Order. I The Respondent has excepted to some of the judge's credibility find- ings. 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. In agreeing with the judge's finding that the Respondent violated Sec. 8(aX5) and (1) by bargaining in bad faith, Member Devaney finds it un- necessary to rely on the statements made by the Respondent 's foreman, Jensen, and, in the absence of a finding of impasse by the judge, on the Respondent's insistence that employees and the Union waive their right to file charges as a condition precedent to filing grievances or waive their right to file grievances as a condition precedent to filing unfair labor practice charges. Larry Witherell, Esq., for the General Counsel. John Burke and John McDowell, Esgs., of Sioux Falls, South Dakota, for the Respondent. Stan Frank, of Sioux Falls, South Dakota, for the Charg- ing Party. DECISION STATEMENT OF THE CASE HUBERT E. LOTT, Administrative Law Judge. This case was heard at Sioux Falls, South Dakota, on July 13 and 14, 1987, on unfair labor practice charges filed by International Union, Allied Industrial Workers of Amer- ica, AFL-CIO (Union) on April 9 and May 18, 1987, against Josten Concrete Products, Co., Inc. (Respondent) and on a complaint issued by the General Counsel on May 18, 1987. The issues in the case are whether or not Respondent through its president, Clarence Josten and foreman, Kenny Jensen, committed various independent violations of Section 8(a)(1) of the Act and whether or not Re- spondent bargained in bad faith in violation of Section 8(a)(5) of the Act by: ( 1) insisting that employees and/or the Union waive or forfeit their statutory rights before state or Federal agencies; (2) stating that it would oper- ate the facilities as it desires and would not comply with any contract; (3) withdrawing from an agreement to notify the union steward in writing when an employee is discharged; (4) rejecting union proposals without consid- ering them; (5) proposing wage reductions unreasonably and for unlawful reasons ; and (6) engaging in 8(a)(1) vio- lations while bargaining was in process. Respondent's answer to the complaint, duly filed, denies the commission of any unfair labor practices. The parties were afforded an opportunity to be heard, to call, to examine and cross-examine witnesses, and to introduce relevant evidence. Since the close of hearing briefs have been received from the parties. On the entire record and based on my observation of the witnesses, and consideration of the briefs submitted, I make the following FINDINGS OF FACT I. JURISDICTION The Company, a South Dakota corporation, with of- fices and places of business in Sioux Falls and Mitchell, South Dakota, has been engaged in the manufacture and wholesale distribution of concrete products. During the calendar year ending December 31, 1986, the Company, in the course and conduct of its business, purchased and received at its South Dakota facilities goods and materi- als valued in excess of $50,000 directly from points out- side the State of South Dakota . During the same period, the Company sold and shipped from its South Dakota fa- cilities products and materials valued in excess of $50,000 directly to points outside the State of South Dakota. The Company admits, and I find, that it is an employer en- gaging in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent further admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. UNFAIR LABOR PRACTICES A. Background The Union was certified on July 22, 1986,1 to repre- sent: All full-time and regular part-time production and maintenance employees employed by the employer at its Mitchell and Sioux Falls, South Dakota facili- ties, including truck drivers; excluding office cleri- cal employees, sales employees, managerial employ- ees, guards and supervisors as defined in the Act. I All dates refer to 1986 unless otherwise indicated 295 NLRB No. 114 1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD There are 12 unit employees at Sioux Falls and 4 unit employees at the Mitchell facility. There were 31 negoti- ating sessions from August 21 to July 3, 1987. During ne- gotiations the Company was represented by Clarence Josten and Attorney John Burke . The Union was repre- sented by Business Agent Stan Frank and unit employees Paul Christenson, Larry Eichmann, Gary Ihnen, Dale Foster, and Russell Jacobsen. Paul Christenson testified that 3 weeks prior to the election, Clarence Josten told him that he (Josten) had a pension plan for the employees but he could not imple- ment it because of the union activity . He also told Chris- tenson that under a union, the employees would be earn- ing the same wages and he didn't think the Union would do much for the employees. Russell Jacobsen testified that the day before the elec- tion Clarence Josten told him that if the employees voted in the Union , they would be cut to 30 hours per week and their wages would be reduced to $7 per hour. Employee Steve Jubko testified that 2 days before the election Clarence Josten told him that they did not need a union, predicting that there would be a cut in hours if the union prevailed . Josten also told him that it would take up to 5 years to settle a contract. Clarence Josten testified that he never told any em- ployees that their hours would be reduced if the Union prevailed. B. Independent 8(a)(1) Allegations 1. Kenneth Jensen's supervisory status: Kenneth Jensen is the only foreman for the 12 Sioux Falls employees. He did not vote in the Board-conducted election in July and Clarence Josten does not consider him part of the collec- tive-bargaining unit. Jensen, who is paid a salary, has worked for Respondent for 37 years and employees are told to report to him. Jensen assigns work to employees, authorizes time off, approves timecards, and authorizes corrections on timecards. Jensen schedules employees' work and determines what days employees are to work and what days they will take off. He verbally disciplines and reprimands employees and discharged the only em- ployee fired in recent memory. Jensen testified that he believes he has authority to fire employees because it "goes along with the jobs." Based on the foregoing, I find that Kenneth Jensen is a supervisor within the meaning of the Act. 2. Paul Christenson testified that in January 1987 he was instructed by Jensen to go to the Mitchell facility. He was further instructed to keep his mouth shut while he was there and if he was asked any questions by the Mitchell employees, to tell them to keep their mouths shut. Jensen admitted the conversation as testified to by Christenson and further added that he was referring to union activities. Jensen testified that he gave Christenson those instructions because he did not think employees should be discussing union matters on company time; however, he neglected to inform Christenson of that reason. 3. In October, the Union filed a complaint with OSHA about Respondent's Sioux Falls facility. An inspection was conducted on November 5 and November 6. Paul Christenson testified that shortly thereafter Jensen came into the lunchroom and told all the employees that who- ever called OSHA really screwed up and that everything that they had accomplished up to then, they could scratch and start all over. Larry Eichmann, who was also present, testified that Jensen came into the lunchroom and told the employees that they had really done it and they might just as well start their negotiations over. Dale Foster testified that Jensen told the employees that they had really done it now and he (Jensen) didn't figure they would ever get a contract now because somebody called OSHA. Steve Jubko testified that Jensen told him that the em- ployees almost had the contract licked but, by calling OSHA, they had to start all over. Jubko testified that he attended some negotiations sessions and raised the issue of plant ventilation which was poor. Thereafter, Jensen told him that if he was going to run his mouth at negoti- ating meetings, he was going to give him heat, i.e., watch him. Jensen testified that he told employees that they were a bunch of "dumb asses for" calling OSHA in when they were trying to negotiate a contract with Josten. 4. In the early part of 1987, the employees took a strike vote authorizing a strike . The results appeared in Arbus Leader (a local newspaper). In February 1987, Jensen told Gary Ihnen that if the employees hadn't put the strike vote in the newspaper and called OSHA, they might have the contract settled but after what the em- ployees did, he thought he would be retired before the matter was settled . Jensen planned to retire in 2 years. Jensen testified that he told employees that he would probably be retired before they settled things at the rate they were going. 5. Stan Frank and Gary Ihnen testified that at the Sep- tember 3 or 25 negotiating sessions , Frank stated that there had been much talk about a pension plan before the election, and the Union was interested in a pension pro- posal. Clarence Josten responded that the Company had a pension plan all set up for the employees and they went to the Union so he scrapped it. When Frank again attempted to pursue the subject, Josten told the employ- ee committee that if they hadn't gone to the Union, they would have had a pension. He said that copies of the plan were sent out to some employees but the Company had to withdraw them . Both John Burke and Clarence Josten denied that Josten ever made these remarks. Analysis and Conclusions I credit the General Counsel's witnesses' testimony concerning the statements made to them by Kenneth Jensen because they were either admitted or undenied. Respondent argues that Jensen had no authority to speak for Respondent; however, I reject this argument because I have found that Jensen is a supervisor making Re- spondent responsible for his remarks to the employees. I also find that Jensen was not just a low-level supervisor but in fact the only supervisor outside of Josten at the Sioux Falls facility. Moreover, Respondent never dis- avowed Jensen's statements to employees although in JOSTEN CONCRETE PRODUCTS CO. 1031 some instances it actually knew what he was saying to them. I credit the General Counsel's witnesses over the deni- als of Respondent's witnesses with respect to Josten's re- marks to employees at the bargaining sessions about a pension plan because Josten's comments are consistent with his preelection statements and his other comments and attitude during negotiations. I therefore find that Respondent committed 8(a)(1) violations by: (1) restricting employee discussion of con- tract negotiations; (2) threatening not to agree to a con- tract because employees had published their strike vote and contacted OSHA; (3) threatening reprisals because an employee raised issues at a negotiating session ; and (4) threatening to withdraw a pension plan because employ- ees had chosen the Union. C. Refusal-to-Bargain Allegations 1. It is undisputed that from the beginning of negotia- tions on August 28 to the last meeting on July 3, 1987, the Respondent insisted that as a condition precedent to filing a grievance, the Union and the employees surren- der their right to file a charge with a Federal or state agency. Conversely, if they chose to file charges with a Federal or state agency, the Union's employees would be required to relinquish their rights to process a grievance. The Respondent's position is that this requirement avoids multiple forums for litigating matters based on the same facts. The Union consistently objected to his proposal. 2. Respondent's proposal of August 28 contained a layoff and recall provision which provided that layoffs would be governed by fitness, competence, company need, and seniority if compatible with efficient operation of the Company's business. The Union objected to this provision because many employees had worked a long time for the Company. According to Frank, Burke re- sponded by stating that they were starting from scratch and the Company did not intend to honor seniority on layoff or recall. Burke added, "you people wanted a con- tract and we are going to give you one. You want a union and we are going to give you one." Josten then slammed the proposals on the table saying, "What is all this bull shit? We don't need that and-I own this plant and nobody is going to tell me how to run it." At the September 25 session the Union attempted to discuss the early grievance proposals. According to Frank, Josten stated, "What do you need this for? .. . We have run this plant for seventy-five years, and what is the need for all this stuff-if any of you have a prob- lem, we could settle it in ten minutes." Josten remarked that he now understood why plants moved to Mexico. The Union raised the issue of seniority on layoffs and re- calls at this meeting and Burke stated that the Company would pick and choose as they saw fit. Since the em- ployees chose a union, they were going to do it the "hard-ass" way. According to Christenson at several ne- gotiating sessions when discussing layoff procedures, Burke told the union committee that now that they were writing it down in a contract, they have to do it the "hard-ass" way because the Company had to protect itself. According to Christenson , layoffs in the past were according to seniority. Frank testified that at the October 29 negotiating ses- sion when the Union raised the subject of pensions, Josten told the committee that he had not had time to pursue the subject because he had been too busy, but that there just absolutely wasn't going to be a pension because of the Union. Josten further stated that if the employees had just kept their shirts on and not gone over to the labor temple, a pension would have been available. Again at the November 6 negotiating session, the Union raised the subject of pensions. Josten stated that he had a pension plan ready but now things have changed and there won't be "any damn pension as long as this union thing exists." The Union pursued it and was told that the Company hadn't discussed it but if they had just kept their shirts on, they would have had one. Josten denied saying there would be no pension be- cause of the Union. Burke testified that at the February 16, 1987 negotiating session , he proposed as a pension plan that the Company contribute into an IRA account $1 for every $2 employee contribution with a limit of $650 per year. However, wages had to be agreed on before the Company's pension offer could be discussed. 3. The Union had proposed on August 21 that the Company should notify the Union in writing of any dis- charge with reasons. Burke had agreed to this as early as October 9 and the Company had incorporated this pro- posal into its own proposals . According to Frank and Paul Christenson, Josten vehemently protested this agreement stating, "He wasn 't going to write no god damn letter, he has got enough paper work to do." Josten testified that he couldn't remember making such a statement. 4. There are 12 employees at the Sioux Falls plant. Six employees earn from $9 .65 per hour to $9. 10 per hour. Five employees (excluding Leisinger who earns $6 per hour because he was newly hired) earn from $8.70 per hour to $8.30 per hour. The four employees at Mitchell earn from $8.90 per hour to $8.30 per hour. At the November 13 meeting Respondent proposed a 10-percent across-the-board wage cut. The Union coun- tered with a wage proposal on November 19 but Burke refused to discuss it. The Union offered another wage proposal on December 3, proposing a wage increase so that all employees would be earning $10 per hour the first year, $10.30 per hour the second year and $ 10.60 an hour the third year . Josten attempted to respond to the Union's wage proposal when Burke told him not to. Frank asked Burke how they were going to arrive at a contract if his client didn't respond. Burke said, "F- your proposals." On December 17, the Company pro- posed that all employees receive $9 per hour for the first year, $9.18 per hour the second year, and $9.36 the third year. The Company stayed with this proposal through- out the remainder of negotiations. The reasons given to the Union for this wage proposal was that this $9-per- hour offer represented the average hourly wage of all employees and since all employees performed the same job, they should receive the same wage. The Union made several different wage proposals during February and March 1987, but the company response never varied except to say that some employees would have to suffer 1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a wage cut in order to bring others up to the $9-per-hour wage rate . According to Frank, Burke also offered the explanation that they wanted everybody equal because that was the union way. Burke said, "You chose to have a Union. That's the way we want it." At no time did the Company plead inability to pay. Burke offered labor bulletins published by the Bureau of Labor Statistics indicating the employer paid over the average monthly earnings of manufacturing employers in South Dakota in 1986 and 1987 thus justifying the 10- percent wage cut proposal. There was no evidence of- fered that these bulletins were ever submitted or dis- cussed at the negotiating sessions. 5. On April 18, 1987, Josten told a customer by the name of Vance Walgrave that he would like to get rid of his lawyer and the Union. He told Walgrave that money was no problem, that he could pay his employees $20 an hour-that the Union was the problem . Josten said that he wasn't going to have a union come in and tell him how to run his company and that the employees were crazy if they thought he would even deal with them. When the subject of strike was raised , Josten told Wal- grave that he would close the doors before he would do anything. Josten admitted the conversation with Walgrave but did not remember saying anything about closing the doors if the employees struck. Analysis and Conclusions I credit counsel for the General Counsel's witnesses with respect to statements made by Respondent because in many cases the statements were corroborated, unden- ied, and consistent with Respondent's attitude toward the Union. On other aspects of the refusal -to-bargain allega- tions, the evidence is undisputed. Counsel for the General Counsel does not allege that Respondent engaged in dilatory tactics or refused to make proposals . However, there is ample evidence to support the General Counsel 's other allegations. Evi- dence of bad faith was shown by Respondent 's insistence that employees relinquish their statutory rights as a pre- condition to utilizing the grievance procedure. It was also shown by Josten's refusal to comply with a provi- sion agreed on by the parties. Respondent's position on wages when viewed in light of credited statements made both at and away from the bargaining table indicate that Respondent's wage proposal was intended to frustrate bargaining and with the further intent of dividing the employees and thus reducing their support for the Union. I can find no other creditable reason for such an unpala- table proposal. The credited evidence also supports my finding that statements made by Respondent including threats to em- ployees both at negotiating sessions and away from the bargaining table were calculated to punish the employees for designating the Union to represent them. Accordingly, I find that based on Respondent's con- duct both at the bargaining table and away from the table established that it had no intention of reaching agreement and bargained in bad faith from beginning to end. Hedaya Bros., 277 NLRB 942 (1985); Port Plastics, 279 NLRB 362 (1986). CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Union, Allied Industrial Workers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees employed by the employer at its Mitchell and Sioux Falls, South Dakota facilities , includ- ing truck drivers; excluding office clerical employees, sales employees, managerial employees, and guards and supervisors as defined in the Act, constitute a unit appro- priate for collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material, International Union, Allied In- dustrial Workers of America, AFL-CIO has been the ex- clusive representative for purposes of collective bargain- ing of all Respondent's employees employed in the unit described above in paragraph 3. 5. Respondent has violated Section 8 (a)(1) of the Act by: (a) Restricting employee discussion of contract negoti- ations. (b) Threatening not to agree to a contract because em- ployees had published their strike vote and contacted OSHA. (c) Threatening reprisals because employees raised issues at negotiating sessions. (d) Threatening to withdraw a pension plan because the employees had chosen the Union. 6. Respondent has violated Section 8(a)(1) and (5) of the Act by: (a) Insisting that employees/union waive their statuto- ry rights as a precondition to filing a grievance. (b) Stating that it would not comply with certain agreed-to provisions. (c) Stating that it would not agree to certain proposals because the employees chose a union. (d) Proposing a wage offer calculated to frustrate bar- gaining. (e) Approaching the bargaining sessions with no inten- tion of reaching agreement. (f) Engaging in 8(a)(1) violations during negotiations. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 8. Except as found above, Respondent has not engaged in other unfair labor practices as alleged. REMEDY Having found that Respondent engaged in acts and conduct violative of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative actions de- signed to effectuate the policies of the Act. I have found that Respondent failed and refused to bargain in good faith with the Union . As a remedy, I shall recommend that Respondent be ordered, on request, to resume bar- gaining with the Union and to do so in good faith and, in the event that an understanding is reached, embody such understanding in a signed agreement. Further in order to JOSTEN CONCRETE PRODUCTS CO. 1033 ensure that employees will be accorded the statutorily prescribed services of their selected bargaining agent for the period provided by law, I recommend that the initial year of certification be deemed to begin on the date that Respondent commences to bargain in good faith with the Union. Port Plastics, 279 NLRB 362 (1986); K-Mart Corp., 242 NLRB 855 (1979). Based on the foregoing findings of fact and conclu- sions of law and on the entire record, I issue the follow- ing recommended2 ORDER "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for consecutive days in conspicuous places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. The Respondent, Josten Concrete Products Co., Inc., Mitchell and Sioux Falls, South Dakota, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Restricting employee discussion of contract negoti- ations. (b) Threatening not to agree to a contract because em- ployees had published their strike vote and contacted OSHA. (c) Threatening reprisals because employees raised issues at negotiating sessions. (d) Threatening to withdraw a pension plan because employees had chosen the Union. (e) Insisting that employees/union waive their statuto- ry rights as a precondition to filing a grievance. (f) Stating that it would not comply with certain agreed to provisions. (g) Stating that it would not agree to certain proposals the employees chose a union. (h) Proposing a wage offer calculated to frustrate bar- gaining. (i) Bargaining in bad faith with International Union, Allied Industrial Workers of America, AFL-CIO. (j) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 oP the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit concerning terms and conditions of employ- ment and, if an understanding is reached , embody the un- derstanding in a signed agreement: All full-time and regular part-time production and maintenance employees employed by the employer at its Mitchell and Sioux Falls, South Dakota facili- ties, including truck drivers ; excluding office cleri- cal employees, sales employees, managerial employ- ees, guards and supervisor as defined in the Act. (b) Post at its facilities in Sioux Falls, and Mitchell, South Dakota, copies of the attached notice marked 2 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. s 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrict employee discussion of contract negotiations. WE WILL NOT threaten not to agree to a contract be- cause employees had published their strike vote and con- tacted OSHA. WE WILL NOT threaten reprisals because employees raised issues at negotiating sessions. WE WILL NOT threaten to withdraw a pension plan be- cause employees had chosen the Union. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaran- teed them by Section 7 of the Act. During contract negotiations WE WILL NOT: Insist that employees/union waive their statutory rights as a precondition to filing a grievance. State that we will not comply with certain agreed-to provisions. State that we will not agree to certain proposals because the employees chose a union. Propose a wage offer calculated to frustrate bar- gaining. WE WILL, on request, bargain in good faith with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All full-time and regular part-time production and maintenance employees employed by the employer at its Mitchell and Sioux Falls, South Dakota facili- ty, including truck drivers; excluding office clerical employees, sales employees, managerial employees, guard and supervisors as defined in the Act. JOSTEN CONCRETE PRODUCTS CO., INC.